UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-23438-BLOOM/McAliley

ANDY R. FONTAINE, 

Plaintiff,

v.

SEC’Y, MARK INCH,

FLORIDA DEP’T. OF CORR., et al., 

Defendants.

/

ORDER ON MOTION FOR RECONSIDERATION

THIS CAUSE is before the Court upon Plaintiff Andy R. Fontaine’s (“Plaintiff” or 

“Fontaine”) Objection to Order Dismissing Claims and Defendants Inch, Centurion, ECF No. [26]

(“Motion”). Plaintiff seeks reconsideration of the Court’s February 17, 2021 Order, see ECF No. 

[21], dismissing Plaintiff’s official capacity claims against Defendants Mark Inch and Centurion 

“for injunctive and declaratory relief as to treatment or lack thereof.” Id. at 3-4. Plaintiff also seeks 

reinstatement of his Title II of the Americans with Disabilities Act (“ADA”) as it pertains to his 

excessive force and deliberate indifference claims. Id. at 4. 

“Courts have delineated three major grounds justifying reconsideration: (1) an intervening 

change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear 

error or prevent manifest injustice.” Williams v. Cruise Ships Catering & Serv. Int'l, N.V., 320 F. 

Supp. 2d 1347, 1357-58 (S.D. Fla. 2004). “[R]econsideration of a previous order is an 

extraordinary remedy to be employed sparingly in the interests of finality and conservation of 

scarce judicial resources.” Wendy’s Int’l, Inc. v. Nu-Cape Constr., Inc., 169 F.R.D. 680, 685 (M.D. 

Fla. 1996); see also Campero USA Corp. v. ADS Foodservice, LLC, 916 F. Supp. 2d 1284, 1290 

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(S.D. Fla. 2012) (“A motion for reconsideration is an extraordinary remedy to be employed 

sparingly.”) (citation omitted).

“Motions for reconsideration are appropriate where, for example, the Court has patently 

misunderstood a party.” Compania de Elaborados de Cafe v. Cardinal Capital Mgmt., Inc., 401 

F. Supp. 2d 1270, 1283 (S.D. Fla. Nov. 4, 2003). But a “motion for reconsideration should not be 

used as a vehicle to present authorities available at the time of the first decision or to reiterate 

arguments previously made.” Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. 

Fla. 1992). “[T]he movant must do more than simply restate his or her previous arguments, and 

any arguments the movant failed to raise in the earlier motion will be deemed waived.” Compania, 

401 F. Supp. 2d at 1283. Simply put, a party cannot use a motion for reconsideration “to relitigate 

old matters, raise argument or present evidence that could have been raised prior to the entry of 

judgment.” Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).

Plaintiff asserts that because of the Court’s Order limiting his Second Amended Complaint 

to twenty pages, he “incorporated the ADA Complaint into grounds [one and two].” ECF No. [26] 

at ¶ 2; see ECF No. [12] at pp. 5, 13. Plaintiff objects to the dismissal of all ADA claims and asks 

the Court to “[r]eturn the ADA complaints as both counts [one] and [two] have Title II issues.” 

ECF No. [12] at ¶ 15. The Court declines to do so for the reasons that follow.

Plaintiff’s Title II ADA claims raised in his Amended Complaint were dismissed for failure 

to state a claim. See ECF No. [12] at 11-12. Plaintiff was provided the law governing ADA claims 

raised in 42 U.S.C. § 1983 complaints. To recap, an ADA claim raised in a § 1983 action can only 

survive screening if the conduct alleged to violate the ADA also violates the Plaintiff’s 

constitutional rights. Id. at 12 (citing Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1531 

(11th Cir. 1997)). Moreover, because Title II only applies to public entities, individual capacity 

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claims are improper. Id. (citing Brennan v. Thomas, 780 F. App’x 813, 823 (11th Cir. 2019). For 

a second time, Plaintiff was permitted to amend his complaint “to the extent that . . . the conduct 

alleged to violate the ADA also constitutes a violation of the Fourteenth Amendment, such that 

the Eleventh Amendment should not bar his claim” Id. at 13. Plaintiff was further cautioned that 

his second amended pleading must be no more than twenty pages and must conform to federal 

pleading standards. Id.

Plaintiff’s Second Amended Complaint again failed to state a claim against Defendants 

Inch and Colon in both individual and official capacities. See ECF No. [21] at 15-16. “Plaintiff did 

not re-allege his stand-alone ADA claim previously set forth in the Amended Complaint. Instead, 

Plaintiff added conclusory statements to [his § 1983 claims] that those violations occurred due to 

discrimination based on his disability.” Id. at 15. Because Plaintiff failed to state a claim that 

Defendants Inch and Colon violated Plaintiff’s constitutional rights, Plaintiff’s ADA claim was 

also dismissed. See Holbrook, 112 F.3d at 1531. Further, Plaintiff’s argument that the twenty-page 

limit constrained his ability to re-allege the ADA claim is undermined by the fact that Plaintiff’s 

Second Amended Complaint was only twelve pages. See ECF No. [17].

Finally, Plaintiff has not alleged any new evidence or shown that clear error warrants 

reconsideration of the Court’s Order. In two separate orders, the Court instructed Plaintiff on 

federal pleading standards. See ECF No. [12] at 3 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

555 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); ECF No. [8] at 2 (citing Fed. R. Civ. 

P. 8(a)(2) and S.D. Fla. L.R. 7.1(c)(2)). Plaintiff failed to correct all pleading deficiencies resulting 

in a partial dismissal of Plaintiff’s claims. Plaintiff’s Motion attemptsto relitigate issues previously 

ruled on in the Court’s February 17, 2021 Order, see ECF No. [21], and Plaintiff is therefore not 

entitled to relief. See Z.K. Marine Inc, 808 F. Supp. at 1563. 

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Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [26], is 

DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, on March 25, 2021.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Andy R. Fontaine, Pro Se

#148904

Columbia Correctional Institution-Annex

Inmate Mail/Parcels

216 S.E. Corrections Way

Lake City, Florida 32025-2013

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