United States District Court, N.D. New York
DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
plaintiff Jua Smith commenced this civil rights action
pursuant to 42 U.S.C. § 1983 and the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. § 2000cc. Dkt. No. 1 (“Complaint”).
After reviewing the Complaint pursuant to 28 U.S.C. §
1915(e)(2)(B), the Court dismissed several of Plaintiff's
claims and named defendants in a Memorandum-Decision and
Order filed on October 20, 2017. Dkt. No. 9 (“October
2017 Order”). Presently before the Court is
Plaintiff's motion for reconsideration of the October
2017 Order. Dkt. Nos. 13 (“Motion”), 19
(“Memorandum”). For the reasons that follow, the
Motion is granted in part and denied in part.
commenced this action in May 2017. Compl. At that time,
Plaintiff also filed a motion to appoint counsel, an
application to proceed in forma pauperis, and a motion for a
preliminary injunction. Dkt. Nos. 2 (“Counsel
Motion”), 3 (“IFP Application”), 4
(“Preliminary Injunction Motion”). The Court
granted Plaintiff's IFP Application, and, pursuant to
§ 1915(e)(2)(B), partially dismissed the Complaint. Oct.
2017 Order at 38-42. The Court also denied the Counsel Motion
and directed Defendants to respond to the Preliminary
Injunction Motion. Id.
October 30, 2017, the Court received Plaintiff's Motion,
as well as a letter partially correcting the Motion. Mot;
Dkt. No. 14 (“Correction”). Plaintiff
subsequently filed a notice of interlocutory appeal, Dkt. No.
15 (“Appeal”), which he later requested to
withdraw, Dkt. No. 17 (“Motion to Withdraw”). On
November 17, 2017, the United States Court of Appeals for the
Second Circuit stayed the Appeal pending resolution of the
Motion. Dkt. No. 21 (“Stay”).
Motion, Plaintiff seeks partial relief from the October 2017
Order. He asks the Court to reconsider its initial review to
construe the Complaint to assert state law claims for
negligence and “denial of considerate and respectful
care” against defendants Martuscello, Smith, Miller,
Baldwin, and Rizzi, and a state law due process claim against
Martuscello and Smith. Mem. at 4. Plaintiff also argues that
the Court erroneously dismissed the following claims: (1) his
First Amendment right of access to the courts claim; (2) the
First and Fourteenth Amendment and RLUIPA claims challenging
the state court force feed order; and (3) Plaintiff's
substantive due process, equal protection, and RLUIPA claims
against defendants Taillieur, Peters, Nepveu, McCarthy,
Hotvet, DiFiore, New York State, the New York State
Judiciary, the New York Attorney General, and the New York
State Department of Corrections and Community Supervision
(“DOCCS”). Mem. at 5-21.
court may justifiably reconsider its previous ruling if: (1)
there is an intervening change in the controlling law; (2)
new evidence not previously available comes to light; or (3)
it becomes necessary to remedy a clear error of law or to
prevent manifest injustice.” Delaney v.
Selsky, 899 F.Supp. 923, 925 (N.D.N.Y. 1995) (citing
Doe v. New York City Dep't of Soc. Servs., 709
F.2d 782, 789 (2d Cir. 1983)). The standard for granting a
motion for reconsideration is strict, and “should not
be granted where the moving party seeks solely to relitigate
an issue already decided.” Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995). Courts generally
deny motions for reconsideration unless “the moving
party can point to controlling decisions or data that the
court overlooked-matters, in other words, that might
reasonably be expected to alter the conclusion reached by the
court.” Id. Thus, a motion for reconsideration
is not a means for “presenting the case under new
theories, securing a rehearing on the merits, or otherwise
taking a ‘second bite at the apple.'”
Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.
1998) (citing United States v. Local 1804-1, 831
F.Supp. 167, 169 (S.D.N.Y.1993)).
does not suggest that there has been an intervening change in
the controlling law, nor has he presented previously
unavailable evidence. Therefore, the only basis for
reconsideration is to remedy a clear error of law or prevent
manifest injustice. After thoroughly reviewing
Plaintiff's Motion and affording it due consideration in
light of his status as a pro se litigant, the Court concludes
that he has justified partially modifying the October 2017
Claims for Relief Under New York Law
contends that the Court erred in not construing the Complaint
to have asserted state law claims for negligence,
“denial of considerate and respectful care, ” and
violation of New York State due process. Mem. at 4. His
negligence claim against Martuscello, Smith, Miller, Baldwin,
and Rizzi is based on his allegation that these defendants
“repeatedly” force fed plaintiff using “a
too-large n.g. tube, without aenesthetic [sic], which caused
bleeding and swelling in addition to great pain and
suffering.” Compl. at 148. Plaintiff appears to plead
negligence as an alternative to his First Amendment
retaliation and Eighth Amendment claims, not as an
independent claim. To the extent that these defendants did
not intentionally injure him during the force feeding, he
alleges, their conduct was negligent. Id. at 148-49
(“Even if the above-described actions regarding the
force feeding were unintentional they constitute . . .
negligence . . . under New York law.”). Plaintiff has
not identified any authority indicating that New York
recognizes a cause of action for “denial of considerate
and respectful care, ” and the Court is aware of none.
Thus, the Court does not construe Plaintiff's claim
regarding “denial of considerate and respectful
care” to be an independent state law claim. It appears
to be duplicative of Plaintiff's negligence claim.
claims of negligence are not cognizable under § 1983,
Arroyo v. City of New York, No. 99-CV-1458, 2003 WL
22211500, at *2 (S.D.N.Y. 2003) (citing Estelle v.
Gamble, 429 U.S. 97, 105-06 (1976)), a court may
exercise supplemental jurisdiction over such a pendent state
law cause of action pursuant to 28 U.S.C. § 1367,
e.g., O'Diah v. Mawhir, No. 08-CV-322,
2010 WL 6230937, at *7 (N.D.N.Y. Dec. 14, 2010), adopted
by, 2011 WL 933846 (N.D.N.Y. Mar. 16, 2011). The Court
did not directly address Plaintiff's alternative
negligence theory in the October 2017 Order. Because
Plaintiff's negligence claim arises out of the same facts
upon which his federal ...