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Todd Levon v. Warden Donna Zickefoose

March 10, 2011

TODD LEVON, PETITIONER,
v.
WARDEN DONNA ZICKEFOOSE, RESPONDENT.



The opinion of the court was delivered by: Kugler, District Judge

NOT FOR PUBLICATION

OPINION

Petitioner Todd Levon, a prisoner currently confined at the Federal Correctional Institution at Fort Dix, New Jersey, has submitted a motion to alter or amend the judgment, pursuant to Federal Rule of Civil Procedure 59(e). Respondent has filed opposition, to which Petitioner replied. Petitioner seeks reconsideration of this Court's Opinion and Order filed July 30, 2010 dismissing his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241. For the following reasons, the motion will be denied.

BACKGROUND

Petitioner's underlying claims and the background of this case were explained in this Court's July 30, 2010 Opinion. This Court dismissed Petitioner's petition for failure to exhaust administrative remedies. Alternatively, the Court found that the claims had no merit. This Court will not go into detail concerning the underlying claims, as this Court's Opinion is presumed to be available to all parties. See Opinion (docket entry 14).

In his motion, signed August 23, 2010, and considered "filed" for purposes of this motion on that date,*fn1 Petitioner asks for reconsideration, arguing that this Court overlooked Petitioner's argument concerning a second unlawful memorandum, dated November 14, 2008. Petitioner contends that his 6-month Residential Re-Entry Center ("RRC") placement was unlawful because the Bureau of Prisons ("BOP") conducted his review under the unlawful November 14, 2008 memo. (Motion, ¶¶ 2, 5).

As to exhaustion, in his motion Petitioner states that he has filed all remedies and that his "last response should be arriving any[]day, which in turn would moot the issue of failing to exhaust." (Motion, ¶ 7). In fact, on January 24, 2011, Petitioner filed a Notice of Exhaustion of Administrative Remedies (docket entry 18), attaching the Central Office's response to his remedy request, and denying Petitioner's claims.

DISCUSSION

A. Motions for Reconsideration

1. Rule 59(e)

Motions for reconsideration are not expressly recognized in the Federal Rules of Civil Procedure. See United States v. Compaction Sys. Corp., 88 F. Supp.2d 339, 345 (D.N.J. 1999). Generally, a motion for reconsideration is treated as a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e), or as a motion for relief from judgment or order under Federal Rule of Civil Procedure 60(b). See id. In the District of New Jersey, Local Civil Rule 7.1(i) (formerly 7.1(g)) governs motions for reconsideration. See Byrne v. Calastro, 2006 WL 2506722 (D.N.J. Aug. 28, 2006).*fn2

Local Civil Rule 7.1(i) permits a party to seek reconsideration by the Court of matters which the party "believes the Judge or Magistrate Judge has overlooked" when it ruled on the motion. See L. Civ. R. 7.1(i). The standard for reargument is high and reconsideration is to be granted only sparingly. See United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994). The movant has the burden of demonstrating either: "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [issued its order]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)(citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). The Court will grant a motion for reconsideration only where its prior decision has overlooked a factual or legal issue that may alter the disposition of the matter. See Compaction Sys. Corp., 88 F. Supp.2d at 345; see also L. Civ. R. 7.1(i). "The word 'overlooked' is the operative term in the Rule." Bowers, 130 F. Supp.2d at 612 (citation omitted); see also Compaction Sys. Corp., 88 F. Supp.2d at 345.

Ordinarily, a motion for reconsideration may address only those matters of fact or issues of law which were presented to, but not considered by, the court in the course of making the decision at issue. See SPIRG v. Monsanto Co., 727 F. Supp. 876, 878 (D.N.J.), aff'd, 891 F.2d 283 (3d Cir. 1989). Thus, reconsideration is not to be used as a means of expanding the record to include matters not originally before the court.

See Bowers, 130 F. Supp.2d at 613; Resorts Int' l. v. Great Bay Hotel and Casino, Inc., 830 F. Supp. 826, 831 & n.3 (D.N.J. 1992); Egloff v. New Jersey Air National Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988). Absent unusual circumstances, a court should reject new evidence which was not presented when the court made the contested decision. See Resorts Int'l, 830 F. Supp. at 831 n.3. A party seeking to introduce new evidence on reconsideration bears the burden of first demonstrating that evidence was unavailable or ...


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