Allah v. Goord, et al

Filing 139

ORDER, Plaintiff's 135 Motion to Set Aside Judgment is DENIED. The Clerk of court is respectfully DIRECTED to send a copy of this order by certified mail, return receipt requested, to pro se Plaintiff at his address of record. So Ordered by Judge Nicholas G. Garaufis on 7/15/2019. (c/m as directed, certified mail rcpt no. 7018 1130 0000 6076 1045) (Lee, Tiffeny)

o(f
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

WAMAL ALLAH,
Plaintiff,
ORDER

-againstOl-CV-6302(NGG)
(LB)
NANCYWEIN,

Defendant.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

The court has received pro se Plaintiff Wamal Allah's motion to set aside judgment

pursuant to Federal Rule of Civil Procedure 60(b). (Mot. to Set Aside J.("Mot.")(Dkt. 135).)
Plaintiff seeks relieffrom a January 26,2005 Memorandum and Order (the"M&O")dismissing

his lawsuit, which asserted claims against employees ofthe Arthur Kill Correctional Facility and
the Department of Corrections—including Defendant Nancy Wein—^under 42 U.S.C. §§ 1983,
1985, and 1986.(^Jan. 26, 2005 Mem.& Order("M&O")
(Dkt. 123).)
In the M&O,this court granted Wein's motion for ajudgment on the pleadings pursuant

to Federal Rule of Civil Procedure 12(c) because she was entitled to qualified immunity. (M&O

at 5.) Although the court agreed that Plaintiff's alleged refusal to become ajailhouse informant

was protected by the First Amendment,it foimd that this right was not clearly established
because there was no applicable United States Supreme Court or Second Circuit precedent. (Id.
at 5-6.)
Plaintiff now claims that the M&O should be vacated because a recent Second Circuit

decision clearly establishes that prisoners do possess a First Amendment right not to serve as

prison informants. (Mot. at 2(citing Bums v. Martuscello. 890 F.3d 77(2d Cir. 2018)).)
However,this right was not clearly established in 2000, when the alleged violation occurred ("see
1

M&O at 5-7). The Second Circuit decision does not,therefore, alter this court's conclusion that

Wein is entitled to qualified immunity from Plaintiffs civil claims.

For the foregoing reasons. Plaintiffs motion to set aside judgment(Dkt. 135)is
DENIED. The Clerk of Court is respectfully DIRECTED to send a copy ofthis order by
certified mail, return receipt requested, to pro se Plaintiff at his address ofrecord.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn,New York

NICHOLAS G. GARAUFI^

July tj ,2019

United States District Judge