United States District Court, M.D. Pennsylvania
D. MARLANI, UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiffs "Petition for
Reconsideration En Banc and or Appeal" (Doc. 46).
24, 2017, Defendants Walter Koehler, Christopher O'Brien,
and Christopher Lamb filed a Motion to Dismiss Plaintiffs
Complaint (Doc. 37). Plaintiff Armoni Johnson thereafter
filed a Response in Opposition to Defendants' Motion to
Dismiss (Doc. 43).
October 6, 2017, Magistrate Judge Carlson issued a Report and
Recommendation ("R&R") (Doc. 44) recommending
that Defendants' Motion to Dismiss be granted. On October
27, 2017, having received no objections, the Court reviewed
the Magistrate Judge's R&R for clear error or
manifest injustice, adopted the R&R in its entirety, and
ordered that the case be closed (Doc. 45).
November 15, 2017, the Clerk of Court filed a document from
Plaintiff entitled "Petition for Reconsideration En Banc
and or Appeal" (Doc. 46). The "Petition" and
supporting brief request that the Court's Order
"dismissing plaintiff complaint [sic] and
granting defendants motion to dismiss be vacated and action
[sic] be reopened back up and litigated on its
merits as law and justice requires." (Doc. 46, at 4).
Defendants thereafter filed a brief in opposition to
Plaintiff's motion. (Doc. 47).
that Plaintiff's motion is brought pursuant to
Fed.R.Civ.P. 59, Plaintiffs motion is timely. Pursuant to
Rule 59, "a motion to alter or amend a judgment must be
filed no later than 28 days after the entry of
judgment." Fed.R.Civ.P. 59(e).
may alter or amend a judgment pursuant to Fed.R.Civ.P. 59(e),
which is otherwise known as a motion for reconsideration.
See Keifer v. Reinhart Foodservices, LLC, 563
Fed.Appx. 112, 114 (3d Cir. 2014). A motion to alter or amend
"must rely on one of three major grounds: (1) an
intervening change in controlling law; (2) the availability
of new evidence not available previously; or (3) the need to
correct clear error of law or prevent manifest
injustice." North River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)
(internal quotation marks and brackets omitted). Cf.
Max's Seafood Cafe ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (setting
forth the three grounds on which a motion for reconsideration
may be granted). However, "motions for reconsideration
should not be used to put forward arguments which the
movant... could have made but neglected to make before
judgment." United States v. Jasin, 292
F.Supp.2d 670, 677 (E.D. Pa. 2003) (internal quotation marks
and alterations omitted) (quoting Reich v. Compton,
834 F.Supp.2d 753, 755 (E.D. Pa. 1993) rev'd in part
and aff'd in part on other grounds, 57 F.3d 270 (3d
motion and supporting brief address the merits of the R&R
and this Court therefore deems them to consist of Objections
to the R&R, requesting reconsideration of this
Court's adoption of the Magistrate Judge's findings
and/or that the Court alter or amend the judgment, based on
Plaintiffs newly submitted arguments.
the Court is unconvinced by Plaintiffs assertion that he
never received a copy of Magistrate Judge Carlson's
R&R (see Doc. 46, at 1). Plaintiff received every other
document, including this Court's Order adopting the
Magistrate Judge's Report and Recommendation, as
evidenced by Plaintiffs present motion for reconsideration.
Further, there is nothing on the record to indicate that
Plaintiff did not receive the R&R. Nonetheless, even
giving Plaintiff every benefit of the doubt, his present
Objections and request for reconsideration fail to raise any
new or persuasive argument, nor do they meet the requisite
standard for a motion for reconsideration.
Plaintiff is not asserting an intervening change in
controlling law or the availability of new evidence that was
not previously available. Rather, liberally construing
Plaintiffs motion and giving him every reasonable inference,
it appears that Plaintiff's motion rests on "the
need to correct clear error of law or prevent manifest
injustice." The Court must reject this assertion.
Plaintiff's motion and supporting brief fail to raise any
new legal or factual issues not previously raised in his
brief in opposition to Defendants' Motion to Dismiss (see
Doc. 43) and, to the extent relevant, addressed in the
R&R. See Donegan v. Livingston, 877 F.Supp.2d
212, 226 (M.D. Pa. 2012) (a motion for reconsideration should
not "be used as a means to reargue matters already
argued and disposed of or as an attempt to relitigate a point
of disagreement between the Court and the litigant."
(quoting Ogden v. Keystone Residence, 226 F.Supp.2d
588, 606 (M.D. Pa. 2002)).
much of the law cited by Plaintiff is irrelevant to the
current claims and issues in this action. To the extent that
some of the case law is applicable, the law set forth in
those cases, if not those cases themselves, has been
addressed by the Magistrate Judge in the R&R.
and crucially, for the reasons set forth in the R&R and
adopted by this Court, Plaintiffs action fails on several
fronts. As this Court noted in its Order adopting the
R&R, "Plaintiffs attempt to raise these issues via a
proceeding brought pursuant to § 1983 is unavailing and
the Magistrate Judge's determination on this issue alone
resolves this matter." (Doc. 45, at n.1). In addition to
the fact that Plaintiffs action is incorrectly brought
pursuant to § 1983, the Magistrate Judge set forth
several other bases for his recommendation that the Motion to
Dismiss should be granted, which the Court also adopted. As
such, there is no manifest injustice in this Court's
grant of Defendants' Motion to Dismiss and direction to
close the case.
foregoing reasons, upon consideration of Plaintiffs
"Petition for Reconsideration En Banc and or
Appeal" (Doc. 46), the Court will deny Plaintiffs