United States District Court, D. Connecticut
JAMES A. HARNAGE, Plaintiff,
WARDEN CHAPDELAINE, ET AL., Defendants.
RULING AND ORDER
ALVIN W. THOMPSON UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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).
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.
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.
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.”)
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).
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