    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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