Harnage v. Chapdelaine

          RULING AND ORDER

          AWT ALVIN W. THOMPSON UNITED STATES DISTRICT JUDGE.

         The plaintiff, James A. Harnage, is incarcerated at the MacDougall-Walker Correctional Institution in Suffield, Connecticut (“MacDougall-Walker”). Pending before the court is the plaintiff's motion for reconsideration filed pursuant to Local Rule 7(c), D. Conn. L. Civ. R. See Mot. Recon., ECF No. 83]. The plaintiff asks the court to reconsider its order granting the motion to dismiss the complaint. For the reasons set forth below, the motion for reconsideration is being denied.

         I. Procedural Background

         The plaintiff initiated this action by filing a complaint pro se pursuant to 42 U.S.C. § 1983 against over 30 Department of Correction employees. See Compl., ECF No. 1. He subsequently filed a first amended complaint, and the court granted the plaintiff leave to file a second amended complaint. See Am. Compl., ECF No. 10; Second Am. Compl., ECF No. 45. On August 18, 2016, the court dismissed the claims in the second amended complaint against the State of Connecticut Department of Correction and concluded that the unconstitutional strip search, privacy and retaliation claims should proceed against Wardens Carol Chapdelaine and Peter Murphy, Correctional Officers Peters, Hammond, McCarly, Vargas, Lapila, Bond, Gonzalez, Velasquez, Martinez, Beaudry, Gondruszka, Shepard, Melendez and Doe in their individual and official capacities. See Ruling Pending Mots., ECF No. 50 at 7-8.

         On September 26, 2016, the defendants filed a motion to dismiss addressed to the First, Fourth, Eighth and Fourteenth Amendment claims in the second amended complaint. In the motion to dismiss, the defendants asserted four arguments. See Mem. Supp. Mot. Dismiss, ECF No. 59 at 8, 9, 11, 14-17. They argued that: (1) the Eighth Amendment claims asserted in counts one, three, six and seven failed to state a claim upon which relief may be granted; (2) the Fourteenth Amendment due process claim asserted in counts one, two and three failed to state a claim upon which relief may be granted; (3) they were entitled to qualified immunity as to the Fourth Amendment claims directed to the searches that were conducted in view of other inmates and correctional staff; and (4) the First Amendment retaliation and Fourth Amendment search claims which had also been raised in an identical pending state court action should be stayed or dismissed pursuant to Colorado River abstention.

         Although the motion to dismiss raised arguments addressed to the plaintiff's Eighth and Fourteenth Amendment claims, the plaintiff did not respond to those arguments. Thus, the court considered the Eighth and Fourteenth Amendment claims to have been abandoned and did not find it necessary to address the defendants' arguments pertaining to those claims.

         It was apparent that the abstention argument was addressed to the Fourth Amendment strip search and First Amendment retaliation claims that had also been raised in the state court action. See Mem. Supp. Mot. Dismiss at 15 (comparing First Amendment retaliation and Fourth Amendment strip search claims raised in this action and state court action). The Eighth and Fourteenth Amendment claims raised in this action were not raised in the state court action. See id., Ex. A, ECF No. 59-2 (complaint filed in state court action).

         Although not addressed explicitly, the court considered the plaintiff's Eighth and Fourteenth Amendment claims to have been abandoned given the plaintiff's decision not to respond to the arguments seeking dismissal of those claims. Accordingly, the Eighth and Fourteenth Amendment claims were simply abandoned by the plaintiff, and the First and Fourth Amendment claims were dismissed by the court based on Colorado River abstention.

         On September 7, 2017, the court granted the motion to dismiss on the ground that abstention under Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976), was warranted and that dismissing, rather than staying, the action was appropriate given the scope of the state court action. See Order, ECF No. 72. On September 21, 2017, the Clerk entered judgment dismissing the case pursuant to the court's order granting the motion to dismiss. See ECF No. 76. On October 20, 2017, the plaintiff filed a notice of appeal of the judgment dismissing the case. See Notice, ECF No. 80. On November 14, 2017, the plaintiff filed a motion for reconsideration of the order granting the motion to dismiss with respect to the Fourth Amendment strip search and First Amendment retaliation claims.

         II. Legal Standard

         As a general matter, “[t]he filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). Fed.R.Civ.P. 62.1, however, permits a district court to deny a motion filed after the entry of a judgment or order in a situation where the district court lacks authority to grant the motion because an appeal is pending, as long as the motion was timely filed. See Rule 62.1, Fed.R.Civ.P. (“If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.”)

         The plaintiff filed several motions for extension of time to file his Local Rule 7(c) motion for reconsideration because he did not timely receive notice of the court's order granting the motion to dismiss. See Mots. Ext. Time, ECF Nos. 73, 79. On October 25, 2017, the court granted the plaintiff a final extension until November 15, 2017, to file his motion. See Order, ECF No. 82. As indicated above, the plaintiff filed his motion for reconsideration on November 14, 2017. Thus, the court considers the motion to have been timely filed. The court concludes that it has jurisdiction to review the motion for reconsideration under Rule 62.1, Fed.R.Civ.P. See, e.g., United States v. Peterson, No. 04 Cr. 752(DC), 2013 WL 1830217, at *2 (S.D.N.Y. May 1, 2013) (exercising discretion under Fed.R.Civ.P. 62.1 to deny Rule 60(b) motion because it was untimely and meritless); Harry v. Suarez, No. 10 Civ. 6756(NRB), 2012 WL 2589080, at *1 (S.D.N.Y. May 18, 2012) (retaining jurisdiction under Fed.R.Civ.P. 62.1 to deny motion for reconsideration of ruling on motion for summary judgment).

         Pursuant to Rule 7(c), D. Conn. L. Civ. R., “[m]otions for reconsideration shall not be routinely filed and shall satisfy the strict standard applicable to such motions.” Generally, reconsideration will be granted only if the moving party can identify “controlling decisions or data that the court overlooked” and that would reasonably be expected to alter the court's decision. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). A party's identification of “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice” may also constitute sufficient reasons to grant a motion for reconsideration. Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (citation and internal quotation marks omitted). A party may not, however, use a motion for reconsideration to re-argue prior issues that have already been decided, present “new theories” or arguments that could have been raised earlier, seek a new hearing “on the merits, or [to] otherwise tak[e] a second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (internal quotation marks and citation omitted).

         III. ...