Marrero v. Weir et al

Filing 45

ORDER denying 34 Motion for Relief from Judgment. Please see attached Order for details. Signed by Judge Robert N. Chatigny on 3/21/2016. (Rickevicius, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
FREDDY MARRERO,
Plaintiff,
V.
WEIR, et al.,
Defendants.

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CASE No. 3:13-CV-0028(RNC)

ORDER

Plaintiff Freddy Marrero, a Connecticut prisoner
proceeding pro se, moves for relief from the order of
September 26, 2014, granting defendants’ motion to dismiss
the complaint.

See (ECF No. 34).

For the reasons that

follow, the motion is denied.
I.

Background
In his complaint in this action, plaintiff alleged that

his phone and visitation privileges had been suspended in an
attempt to force him to reveal the name of a correctional
officer with whom he allegedly had conspired to bring drugs
into Osborn Correctional Institution.

Plaintiff’s complaint

alleged that in response to the defendants’ requests for his
assistance in their investigation he had repeatedly denied
knowledge of any attempt to smuggle drugs into the facility.
The Court ruled that the plaintiff’s allegations failed to
state a claim on which relief could be granted and that, in

any event, the defendants were entitled to qualified
immunity.

Plaintiff did not seek reconsideration or file a

notice of appeal.

More than a year later, he filed the

present motion.
In his motion, plaintiff asks the Court to set aside
the judgment and reopen the case on the ground that the
denial of phone and visitation privileges at issue in the
complaint serves to punish him unlawfully for exercising his
privilege against self-incrimination.

Implicit in this

claim is an allegation that he has responded to requests for
information concerning the smuggling plot by invoking his
privilege against self-incrimination, an allegation he did
not make prior to the dismissal of this action.

Plaintiff

seems to contend that his reliance on the privilege against
self-incrimination constitutes a change in circumstances
that makes enforcing the judgment inequitable within the
meaning of Federal Rule of Civil Procedure 60(b)(5).

In the

alternative, he argues that relief from the judgment is
justified under Rule 60(b)(6), which requires a showing of
“extraordinary circumstances.”

Stevens v. Miller, 676 F.3d

62, 67 (2d Cir. 2012) (quoting Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 864 (1988)).

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Finally, he

seeks guidance on whether he should file an independent
action to obtain relief from the judgment under Rule 60(d).
Defendants oppose the motion to reopen.
In a telephone conference on March 18, 2016, the Court
inquired about the status of plaintiff’s privileges.
Defendants’ counsel stated that plaintiff’s privileges are
currently suspended due to disciplinary sanctions imposed as
a result of new instances of misconduct unrelated to his
refusal to cooperate in the investigation at Osborn.
Counsel reported that prior to plaintiff’s latest
disciplinary problems, his privileges had been restored and
he had been visited by several family members, including an
individual allegedly involved in the conspiracy to smuggle
contraband into Osborn.

Finally, counsel reported that

plaintiff’s privileges are due to be restored next month.
II.

Discussion
Rule 60(b)(5) permits a court to grant relief from a

judgment when “applying it prospectively is no longer
equitable.”

This provision applies in cases involving

injunctions, consent decrees, and other judgments that have
prospective effect.

See 11 Charles Alan Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Procedure §

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2863 (3d. ed. 2012).

The judgment dismissing the

plaintiff’s complaint in this action does not by its terms
have prospective effect.

More fundamentally, if plaintiff

were now being punished for invoking his privilege against
self-incrimination, as asserted in his motion to reopen,
that punishment would not be authorized by the Court’s
order.

Thus, Rule 60(b)(5) does not provide a basis for

relief.
For relief to be granted under Rule 60(b)(6), the
plaintiff must establish the existence of “extraordinary
circumstances.”

Stevens, 676 F.3d at 67.

At the time this

action was dismissed, the Court understood that the
suspension of the plaintiff’s privileges was just that -- a
suspension -- and did not anticipate that the order would be
relied on as a license to refuse to restore the plaintiff’s
privileges until such time, if ever, that he cooperated in
the investigation.

As a result of the recent telephone

conference, the Court is satisfied that the order is not
being misused in this manner.

Accordingly, this case does

not present the type of “extraordinary circumstance” that
Rule 60(b)(6) requires.
With regard to Rule 60(d), plaintiff seems to be asking

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the Court to state whether it would entertain an independent
action for relief from the judgment.

As plaintiff

recognizes, such an independent action is available only to
prevent a grave miscarriage of justice.

See United States

v. Beggerly, 524 U.S. 38, 46 (1998); Gottlieb v. S.E.C., 310
F. App’x 424, 425 (2d Cir. 2009).

In light of the

information provided by the defendants in the recent
telephone conference, there appears to be no need for an
independent action at this time.
III.

Conclusion
Accordingly, the motion for relief from the judgment is

hereby denied.
So ordered this 21st day of March 2016.
/s/RNC
Robert N. Chatigny, U.S.D.J.

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