The opinion of the court was delivered by: Chief Judge Kane
Plaintiff Charles Iseley filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 2, 2005. He is currently confined at the State Correctional Institution at Fayette, Pennsylvania. Named as Defendants are Jeffrey Beard, Secretary of the Department of Corrections ("DOC"), and John Talaber, assistant counsel for the DOC. Pending before the Court is Plaintiff's motion seeking reconsideration of the Court's Memorandum and Order dated march 20, 2009, granting Defendants' motion for summary judgment. (Doc. No. 131.) Also pending is Plaintiff's "Motion to Hold the Case in Suspense." (Doc. No. 135.) For the reasons that follow, both motions will be denied.
In the complaint Plaintiff alleges that Defendants denied him access to publications and, thereafter, retaliated against him by ordering their destruction due to his filing of a state court mandamus action against Beard regarding the confiscation. Talaber served as Beard's counsel in the state action. Plaintiff claims that he was "singled out" and, as a result of Defendants' actions, was unable to use some of the destroyed publications as exhibits in his underlying state court action. On March 31, 2008, the Court granted Defendants' Motion for Judgment on the Pleadings with respect to the claims of confiscation of the publications and equal protection. (Doc. No. 115.) The motion was denied in all other respects. On March 20, 2009, Defendants' motion for summary judgment was granted with respect to Plaintiff's retaliation claim - the sole remaining issue in the case. The Court found that Plaintiff had failed to exhaust his retaliation claim, granted the summary judgment motion and closed the case. (Doc. No. 129.)
A. Motion to Hold Case in Suspense
Plaintiff requests the Court to "hold this case in suspense." (Doc. No. 135.) He claims that he is in the process of sending all of his property out of the prison because he is to be released soon. He claims that he will have no access to the legal materials needed for litigating this action once he does so. (Doc. No. 136.) Plaintiff's motion will be denied in that there are no further documents he is required to file in this matter. Summary judgment has been entered against him, and the case is closed. While Plaintiff has filed a motion seeking reconsideration of said decision, he has submitted his supporting brief and the motion is presently before the Court for consideration at this time.*fn1
B. Motion for Reconsideration
Plaintiff seeks reconsideration of this Court's Memorandum and Order of March 20, 2009 (Doc. No. 129), granting summary judgment on Plaintiff's claim of retaliation. Summary judgment was granted in favor of Defendants on the basis of Plaintiff's failure to exhaust his administrative remedies as mandated by 42 U.S.C. §1997e(a). In his motion, Plaintiff raises arguments which include the following: (1) the existence of new evidence; (2) the Court's failure to consider/give appropriate weight to Plaintiff's evidence; (3) the Court's improper conduct in raising arguments on behalf of Defendants; and (4) the failure of the Court to address Plaintiff's argument that Defendants waived the exhaustion defense. For the reasons that follow, the motion is found to be without merit.
A motion for reconsideration is a device of limited utility. Its purpose is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, a party seeking reconsideration must demonstrate at least one of the following grounds prior to the court altering, or amending, a standing judgment: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court entered judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)(citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration is appropriate in instances where the court has "patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Rohrbach v. AT&T Nassau Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995), vacated in part on other grounds on reconsideration, 915 F. Supp. 712 (M.D. Pa. 1996)(quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). It may not be used as a means to reargue unsuccessful theories, or argue new facts or issues that were not presented to the court in the context of the matter previously decided. Drysdale v. Woerth, 153 F. Supp.2d 678, 682 (E.D. Pa. 2001). "Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Continental Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995).
Plaintiff first contends that new evidence exists "to corroborate" his argument that the prison grievance system was unavailable to him in attempting to exhaust his grievances. In support of his argument, he attaches a copy of an Inmate Request to Staff Member he submitted on December 11, 2007, to Mary Ann Kishner, Grievance Coordinator at SCI-Fayette. (Doc. No. 132, Ex. 1.) In the document Plaintiff asks to be advised of the proper procedure for filing a prison grievance against a DOC employee not stationed at SCI-Fayette. In the response dated December 13, 2007, he is advised that he cannot use the grievance system for doing so. The instant action was filed in March of 2005. Plaintiff cannot attempt to rely on this Inmate Request to Staff and response thereto from December of 2007 in an attempt to support actions or inactions on his part years ago.
Plaintiff next claims that the Court failed to consider his the declaration and other evidence he submitted in opposing Defendants' motion for summary judgment. In considering Defendants' summary judgment motion, the Court must view all inferences from the underlying facts in the light most favorable to the non-moving party. In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In doing so, it is well established that unsubstantiated arguments made in briefs are not considered evidence of asserted facts, see Versarge v. Township of Clinton, 984 F.2d 1359, 1370 (3d Cir. 1993), and that allegations made without any evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Clr. 2000).
Conclusory, speculative allegations in affidavits and moving papers, without more, in the face of documentary evidence, are insufficient to create a genuine issue of fact and defeat summary judgment. See ...