Opinion
20-CV-7931 (LLS)
03-09-2021
KIM VASQUEZ, Plaintiff, v. OFFICER PATRICK CULLEN (OF NYSDOCCS), et al., Defendants.
ORDER :
Plaintiff, currently detained in the Rockland County Correctional Facility, proceeds in this matter pro se. On February 10, 2021, the denied Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP), and dismissed this action without prejudice under 28 U.S.C. § 1915(g). On February 19, 2021, the Court received Plaintiff's notice of appeal, and on the same day, transmitted the notice to the United States Court of Appeals for the Second Circuit. But on March 9, 2021, the Court received form Plaintiff a letter dated March 3, 2021, requesting reconsideration of the order of dismissal. For the reasons set forth below, the Court denies Plaintiff's request for reconsideration.
Under the prison mailbox rule, the date a prisoner signs a court submission qualifies as the filing date. See, e.g., Nash v. Kressman, No. 11-CV-7327, 2013 WL 6197087, at *4 (S.D.N.Y. Nov. 27, 2013) (finding that signature date on cover letter, which accompanied pro se complaint, established filing date for purposes of prison mailbox rule). See generally Houston v. Lack, 487 U.S. 266, 270 (1988) (holding that a pro se prisoner' s document is deemed " filed" when delivered to prison authorities for forwarding to the court).
DISCUSSION
I. Effect of Pending Appeal
The Court liberally construes Plaintiff's submission as a motion under Fed. R. Civ. P. 59(e) to alter or amend judgment and a motion under Local Civil Rule 6.3 for reconsideration, and, in the alternative, as a motion under Fed. R. Civ. P. 60(b) for relief from a judgment or order. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006); see also Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) ("The solicitude afforded to pro se litigants takes a variety of forms." (citations omitted)). Normally, "[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 Discount Co., 459 U.S. 56, 58 (1982). But Rule 4 of the Federal Rules of Appellate Procedure provides that a district court has jurisdiction to rule on a motion under Rules 59 or 60 of the Federal Rules of Civil Procedure after a notice of appeal has been filed, but only if the motion is filed within 28 days after the entry of judgment. Fed. R. App. P. 4(a)(4)(A).
Rule 62.1 of the Federal Rules of Civil Procedure provides district courts with several other options when "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." Fed. R. Civ. P. 62.1(a)(1); see also Toliver v. Cnty. of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992). For instance, a court may defer consideration of the motion or deny it. See Fed. R. Civ. P. 62.1(a). Alternatively, a court may indicate that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue. See id
Here, Plaintiff submitted this motion after he submitted a notice of appeal and within 28 days after judgment was entered. The Court therefore has the authority to consider his request for reconsideration under Rules 59 and 60.
II. Motion for Reconsideration
The standards governing Fed. R. Civ. P. 59(e) and Local Civil Rule 6.3 are the same. R.F.M.A.S., Inc. v. Mimi So, 640 F. Supp. 2d 506, 509 (S.D.N.Y. 2009). A movant must demonstrate that the Court overlooked "controlling law or factual matters" that had been previously put before it. Id. "A motion to reconsider will not be granted where the moving party is merely trying to relitigate an already decided issue," Padilla v. Maersk Line, Ltd., 636 F. Supp. 2d 256, 258-59 (S.D.N.Y. 2009), largely because "[r]econsideration of a previous order by the Court is an 'extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources,'" R.F.M.A.S., Inc., 640 F. Supp. 2d at 509 (quoting In re Health Mgmt. Sys. Inc. Secs. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)).
Under Rule 60(b), a party may seek relief from a district court's order or judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or other misconduct of an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason justifying relief.
In the February 10, 2021 order of dismissal, the Court found that Plaintiff had brought at least three prior actions while a prisoner that were dismissed entirely on strike grounds, and was therefore barred under the "three strikes" provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), from filing any federal civil action IFP while a prisoner unless he is in imminent danger of serious physical injury. The Court considered the following three cases as strikes: (1) Vasquez v. Rockland Cnty Sheriff's. Dep't, ECF 7:15-CV-8912, 32 (S.D.N.Y. Feb. 2, 2017), which was dismissed solely on the ground of failure to state a claim on which relief may be granted; (2) Vasquez v. Apotheker, ECF 1:15-CV-9346, 6 (S.D.N.Y. Apr. 1, 2016), which was dismissed under the doctrine of judicial immunity and therefore as frivolous; and (3) Vasquez v. Doe, ECF 7:15-CV-8845, 92 (S.D.N.Y. May 6, 2019), which was dismissed as time-barred with prejudice, and therefore for failure to state a claim.
Plaintiff asserts in his motion that the Court incorrectly counted as a strike Vasquez v. Doe, No. 15-CV-8845. He contends that because that case was dismissed on statute of limitations grounds rather than as frivolous, malicious, or for failure to state a claim, it cannot be considered a strike under § 1915(g). Plaintiff requests that the Court reconsider its February 10, 2021 decision, remove Vasquez v. Doe, No. 15-CV-8845 as a strike, and grant him the ability to proceed with his complaint IFP.
The Court denies Plaintiff's requests. As noted in the February 10, 2021 order, the dismissals of complaints based on the expiration of the applicable statute of limitations count as strikes for the purpose of § 1915(g). See Jones v. Bock, 549 U.S. 199, 215 (2007) (A complaint that "show[s] that relief is barred by the applicable statute of limitations" is "subject to dismissal for failure to state a claim."); Akassy v. Hardy, 887 F.3d 91, 95 (2d Cir. 2018) (same). Thus, the Court correctly concluded that Plaintiff had accrued three strikes as a prisoner and was therefore barred under § 1915(g).
Because Plaintiff does not present any legal or factual matters that would call into question the Court's dismissal of this action under § 1915(g), the motion for reconsideration is denied.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
Plaintiff's motion for reconsideration (ECF No. 10 ) is denied. All other pending matters in this action are terminated. SO ORDERED. Dated: March 9, 2021
New York, New York
/s/_________
Louis L. Stanton
U.S.D.J.