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Kittle v. State

February 15, 2007

GARRY L. KITTLE, JR. PLAINTIFF,
v.
THE STATE OF OHIO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Marbley

OPINION AND ORDER

On December 30, 2005, pro se prisoner plaintiff, Garry L. Kittle, filed a motion for leave to proceed in forma pauperis and a complaint alleging violations of his constitutional rights. The Magistrate Judge issued a Report recommending that the complaint be dismissed because it is frivolous, seeks monetary relief from defendants who are immune and fails to state a claim upon which relief can be granted. In response to the Magistrate Judge's Report, Mr. Kittle filed the exact same complaint that he filed on December 30, 2005. Because the "new complaint" was filed within the ten-day objection window where Mr. Kittle could object to the Magistrate Judge's Report, the Court construed the "new complaint" as an objection and reviewed the "new complaint" de novo. Subsequently, on July 27, 2006, the Court concluded that Mr. Kittle raised no new arguments or issues in the objection and, therefore, adopted the Magistrate Judge's Report and Recommendation. Mr. Kittle's complaint was dismissed.

On August 1, 2006, Mr. Kittle again filed the exact same December 30, 2005 complaint in response to the Court's Order Adopting the Magistrate Judge's Report and Recommendation. Because the August 1, 2006 complaint was filed within ten days of the Court's Order dismissing the case, the Court will construe it as a motion to alter or amend judgment and review it under Rule 59(e) of the Federal Rules of Civil Procedure.

A motion to alter or amend judgment, under Fed. R. Civ. P. 59(e), may be made for one of three reasons:

1. An intervening change in law;

2. Evidence that was not previously available has become available;

3. Necessary to correct a clear error of law or prevent manifest injustice.

Fed. R. Civ. P. 59(e); see also Helton v. ACS Group, 964 F.Supp. 1175, 1182 (E.D. Tenn.1997).

Motions for reconsideration serve a limited function. They are ordinarily granted only to correct errors of law or fact or to present newly discovered evidence which could not have been adduced during the pendency of the motion.

Motions for reconsideration cannot be used to introduce new legal theories for the first time, to raise legal argumentation which could have been heard during the pendency of the original motion. Finally, motions to reconsider are not at the disposal of parties who want to "rehash" old arguments.

Helton, 964 F.Supp. at 1182; see also Cale v. Johnson, 861 F.2d 943, 947 (6th Cir.1988); National Metal Finishing Co. v. Barclays American/Commercial, Inc., 899 F.2d 119, 123, 125 (1st Cir.1990)(discussing the limited nature of motions for reconsideration). Thus, motions to alter or amend, or for reconsideration, are not intended as a mechanism for a plaintiff to relitigate issues previously considered and rejected, or to submit evidence which in the exercise of reasonable diligence could have been submitted earlier. Where the plaintiff seeks complete reversal of the Court's judgment by offering essentially the same arguments that he initially raised, the proper course of action is an appeal. Helton, supra, 964 F.Supp. at 1182 (citing Keweenaw Bay Indian Community v. State of Michigan, 152 F.R.D. 562, 563 (W.D. Mich.1992).

As indicated, supra, Mr. Kittle filed the exact same complaint (as previously filed) in response to the Court's Order dismissing the case. This is not a situation where there is an intervening change controlling law or where new evidence became available. Moreover, this is not a situation where the Court must grant the Rule 59(e) motion to prevent a manifest injustice or to correct a clear error in the law. Rather, by submitting the exact same complaint that was previously dismissed by the Court, Mr. Kittle is apparently requesting the Court to relitigate the issues. Under Rule 59(e), this is not proper. Thus, Mr. Kittle's motion for relief from judgment (doc. #15) is DENIED.

Algenon L. Marbley United States ...


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