Lesch v. United States , 372 F. App'x 182 ( 2010 )

09-2376-cv
Lesch v. United States of America
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUMENT FILED W ITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM MARY ORDER”). A PARTY CITING A SUM MARY ORDER
M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 20th day of April, two thousand ten.
PRESENT:
PIERRE N. LEVAL,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.
_______________________________________________
Anthony R. Lesch,
Petitioner-Appellant,
v. 09-2376-cv
United States of America, State of New York, City of
Binghamton, New York,
Respondents-Appellees.
_______________________________________________
FOR PETITIONER-APPELLANT: Anthony R. Lesch, pro se, Petersburg, VA
FOR RESPONDENTS-APPELLEES: Paula Ryan Conan, Assistant United States
Attorney, for Andrew T. Baxter, United States
Attorney for the Northern District of New York,
Syracuse, NY; Wayne L. Benjamin, New York
State Office of the Attorney General, Albany, NY
Appeal from the United States District Court for the Northern District of New York (McAvoy,
J.).
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
DECREED that the post-judgment order of the District Court be and hereby is AFFIRMED.
Appellant Anthony R. Lesch appeals the district court’s denial of his motion for
reconsideration of its decision dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).
We assume the parties’ familiarity with the facts, proceedings below, and specification of
appellate issues and hold as follows.
The standard of review of a district court order granting or denying a motion for relief
from a final judgment is whether the order constituted an abuse of discretion. See Devlin v.
Transp. Commc’ns Int’l Union, 175 F.3d 121, 132 (2d Cir. 1999) (noting the same abuse-of-
discretion review for Rules 59(e) and 60(b)). “A district court would necessarily abuse its
discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729
(2d Cir. 1998). A motion for relief from a judgment is generally not favored and is granted only
upon a showing of exceptional circumstances. Pichardo v. Aschcroft, 374 F.3d 46, 55 (2d Cir.
2004) (citing United States v. Intl. Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001)).
“[R]econsideration will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked—matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995). Thus, a motion to reconsider should not be granted where the moving
party is solely attempting to relitigate an issue that already has been decided. Id. Here, the
district court properly found that Lesch sought only to re-argue his previously submitted claims.
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Thus, the reconsideration motion was correctly denied, and Lesch’s appeal is without merit. See
id.; Transaero, 162 F.3d at 729.
To the extent Lesch can challenge the district court’s failure to allow him to replead upon
its sua sponte dismissal, see Digitel, Inc. v. MCI Worldcom, Inc., 239 F.3d 187, 189 n.2 (2d Cir.
2001), such a claim is unavailing. A district court need not grant a pro se plaintiff leave to
amend if it can rule out any possibility, however unlikely it might be, that an amended complaint
would succeed. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 795-96 (2d Cir. 1999). Although the district court did not expressly
consider the propriety of allowing Lesch leave to amend, an amendment would have been futile,
as Lesch sought compensation for property that was forfeited pursuant to a judgment to which he
consented in connection with his conviction for production of child pornography in violation of
18 U.S.C. § 2251. Thus, Lesch has no non-frivolous challenge to the district court’s dismissal of
his complaint. Accordingly, for the foregoing reasons, the judgment of the district court is
hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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