United States District Court, D. Connecticut
ORDER DENYING MOTION FOR RECONSIDERATION [DKT. 26]
AND MOTION TO AMEND [DKT. 27]
VANESSA L. BRYANT, UNITED STATES DISTRICT JUDGE
Jose Cortes filed his complaint pro se under 5
U.S.C. §§ 552 and 552a alleging that Defendant,
Department of Correction, improperly rejected his book order.
Plaintiff sought damages and an order that he receive his
required for prisoner civil complaints under 28 U.S.C. §
1915A (2000), the Court conducted an initial review of
Plaintiff's complaint to identify cognizable claims and
dismiss any portion of the complaint that is frivolous or
malicious, that fails to state a claim upon which relief may
be granted, or that seeks monetary relief from a defendant
who is immune from such relief.
out in the Court's Initial Review Order, see
[Dkt. 15], Plaintiff's action pursuant to 5 U.S.C.
§§ 552 and 552a for violation of his rights to
freedom of information and to petition the government for
redress of grievances in connection with the rejection of his
requests for copies of Black's Law Dictionary and the New
Oxford American Dictionary failed to state a claim. First,
the Court concluded that Plaintiff had no basis for a freedom
of information claim because the federal Freedom of
Information Act, 5 U.S.C. § 552, applies only to the
federal government, not state agencies such as the Department
of Correction named by Plaintiff. See [Dkt. 15 at
2-3 (citing Crowder v. Farinella, No.
3:17-cv-1135(VAB), 2017 WL 3392546, at *6 (D. Conn. Aug. 7,
2017))]. Next, the Court accounted for a liberal construction
of Plaintiff's Complaint, considering any alternative
potential claim pursuant to 42 U.S.C. § 1983. The Court
concluded that Plaintiff did not name a proper § 1983
defendant, see Id. at 3 (citing Will v. Michigan
Dep't of State Police, 491 U.S. 58, 71 (1989) (state
agencies cannot be sued under section 1983)), and even if he
had, the Complaint fails to allege facts supporting any
cognizable § 1983 claim. See Id. at 3-4.
Finally, the Court highlighted that Plaintiff has no
constitutional right to have a dictionary. See Id.
at 4 (citing Brown v. Nelson, No. 05 Civ. 4498(RJS),
2008 WL 4104040, at *6 (S.D.N.Y. Aug. 29, 2008) (no
constitutional requirement for inmate to have dictionary)).
Accordingly, the Court dismissed Plaintiff's Complaint.
Court's December 13, 2018 order dismissing the case
specified that the dismissal was without prejudice to
refiling an amended complaint asserting a viable claim within
35 days of the order. See Id. at 5. Pursuant to that
order, Plaintiff had until January 17, 2019 to file an
amended complaint. In two motions dated February 12, 2019,
Plaintiff seeks reconsideration of the dismissal, [Dkt. 26],
and leave to amend his Complaint, [Dkt. 27]. Both of these
motions are DENIED as untimely and for failure to state
grounds upon which the requested relief should be granted, as
Motion for Reconsideration
Motion for Reconsideration is essentially a motion for relief
from a judgment or order under Federal Rule of Civil
Procedure 60. Rule 60 provides that “the court may
relieve a party or its legal representative from a final
judgment, order, or proceeding” based on “(1)
mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence . . .; (3) fraud . . .,
misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied,
released, or discharged . . .; or (6) any other reason that
justifies relief.” Fed.R.Civ.P. 60(b).
of Connecticut Local Rule 7(c) further specifies that motions
for reconsideration “will generally be denied unless
the movant can point to controlling decisions or data that
the court overlooked in the initial decision or order.”
The Local Rule requires that a party file any such motion
within 7 days of the filing of the decision or order from
which relief is sought and that it be accompanied by a
memorandum setting out the controlling decisions or data the
party believes the Court overlooked. D. Conn. L.R. 7(c)(1).
Motion for Reconsideration was filed more than two months
after the Court entered its Initial Review Order and
dismissal, well beyond the 7 days allowed under the Local
Rule. The Motion argues only that the dismissal under §
1915 was improper because Plaintiff's motion for leave to
proceed in forma pauperis had already been granted.
See [Dkt. 26 at 1-2]. This argument fails, as the
Court still must conduct an initial review of a prisoner
civil complaint and dismiss claims lacking merit regardless
of a prisoner's in forma pauperis status. See 28
U.S.C. § 1915A. Further, Plaintiff makes no argument
that the Court overlooked any law or facts or any other
argument which would entitle him to the relief requested
under Rule 60 or Local Rule 7(c). Plaintiff provides no basis
for reconsideration of the Initial Review Order and
dismissal. As such, Plaintiff's Motion for Reconsider is
Motion to Amend
filed his motion to amend two months after the Court's
Initial Review Order, well outside the 35 days allowed by the
Court for amendment. Plaintiff fails to state good cause for
missing the deadline set by the Court. As such, the motion is
Plaintiff did not provide a proposed amended complaint, as
required by the Court's Order. See [Dkt. 15 at
5]. Without a proposed amended complaint, the Court has no
basis on which to believe that amendment would not be futile.
While Federal Rule of Civil Procedure 15 provides that leave
to amend should be freely given when justice so requires,
such leave must be denied when amendment would be futile.
Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d
Cir. 2001) (citing Forman v. Davis, 371 U.S. 178,
182 (1962)). Amendment is futile when the amended complaint
would not survive a motion to dismiss. Id.
(“[L]eave to amend will be denied as futile only if the
proposed new claim cannot withstand a 12(b)(6) motion to
out infra, the Court already concluded that
Plaintiff failed to state a claim upon which relief could be
granted, requiring dismissal of his Complaint. See
[Dkt. 15]. Plaintiff's Motion to Amend does not state or
otherwise suggest how Plaintiff would change his Complaint.
He provides no new legitimate congnizable bases for his
claims which could allow the Court to conclude that his
amended complaint would survive initial review or a motion to
dismiss. Nor can the Court imagine ...