Dolberry v. Jakob, et al

Filing 90

DECISION AND ORDER: ORDERED that the denial of plaintiff's motion for summary judgment remains in effect. ORDERED, that Defendants' motion for summary judgment is DENIED in part and GRANTED in part. ORDERED, that all causes of action aga inst defendants Silvernail, Gutwein, McDermont and Martuscello are DISMISSED on the merits. ORDERED, that the only claim remaining is the cause of action for retaliation against defendants Jakob and Saltsman. Signed by Judge David N. Hurd on 1/15/16. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------ANDRE DOLBERRY,
9:11-CV-1018
(DNH/DEP)
Plaintiff,
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CORRECTION OFFICER JAKOB, et al.,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

ANDRE DOLBERRY, Pro Se
14-A-1111
Franklin Correctional Facility
P.O. Box 10
Malone, NY 12953
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Defendants
The Capitol
Albany, NY12224

DENISE P. BUCKLEY, ESQ.
Ass't Attorney General

DAVID N. HURD
United States District Judge
DECISION and ORDER
Pro se plaintiff Andre Dolberry, who is also sometimes known as Andre Duberry,
brought this action pursuant to 42 U.S.C. § 1983. On February 28, 2014, the Honorable
David E. Peebles, United States Magistrate Judge, advised by Report-Recommendation that
plaintiff's motion for summary judgment be denied, and that plaintiff's complaint in this action
be dismissed based upon his material misrepresentation to the court, under oath, that he has

not brought any prior actions relating to his imprisonment. See ECF No. 54. Plaintiff timely
filed objections to the Report-Recommendation. See ECF No. 55. The ReportRecommendation was adopted in all respects. See ECF No. 56. Plaintif f timely appealed.
See ECF Nos. 58, 60.
Upon review, the Second Circuit focused solely upon the sua sponte dismissal of
plaintiff's complaint pursuant to Federal Rule of Civil Procedure 11, and remanded for further
proceedings. See ECF 89. The denial of plaintiff's motion for summary judgment remains in
effect. Upon remand, the Second Circuit's directive was to either: (1) document a sufficient
basis for dismissal pursuant to Federal Rule of Civil Procedure 11, or (2) adopt Judge
Peebles's alternate recommendation to grant in part and deny in part defendants' motion for
summary judgment. See ECF No. 89, at 4-5.
For the following reasons, Judge Peebles's alternate recommendation must be
adopted. The Second Circuit noted that the imposition of sanctions under Federal Rule of
Civil Procedure 11 is inherently a fact-finding endeavor. ECF No. 89, at 2 (quoting SEC v.
Smith, 710 F.3d 87, 97 (2d Cir. 2013)). Specifically, "[w]hether [defendant] made false
statements, and whether she did so in bad faith, are questions of fact that will not be
disturbed unless clearly erroneous. SEC, 710 F.3d at 97; see also Agiwal v. Mid Island
Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009). Thus, this standard indicates that deference
should afforded to the trial court's finding of fact. Judge Peebles engaged in a remarkably
thorough six page discussion of the facts surrounding plaintiff's misrepresentations to the
court and an analysis thereof. ECF No. 54, at 11-17.
Indeed, Judge Peebles identified plaintiff's misrepresentation in the current case,
and additionally identified instances where plaintiff had made the same misrepresentation
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and further instances where plaintiff has "continued to falsely represent to district courts in
[the] circuit that he has never filed any actions related to his imprisonment." ECF No. 54, at
14, n. 11. For example, Judge Peebles rightfully identifies three illustrative examples where
plaintiff made false representations to the court, prior to the com mencement of this action.
ECF No. 54, at 16, n. 13 (finding that "[t]he gamemanship demonstrated by plaintiff's false
representation to the court" was not isolated, and even included plaintiff's use of aliases and
repeated filings against the same defendants). Judge Peebles further identified two actions
filed in the Northern District after the commencement of the instant action that unequivocally
complain of his prison confinement conditions. See ECF No. 54, at 14. 1 Notwithstanding
Judge Peebles's exacting analysis, the Second Circuit disagreed.
While the Second Circuit found "arguable force to Dolberry's point that he would be
unlikely falsely [sic] to deny filing prior cases that could readily be located by checking his
name in an electronic database of lawsuits" (ECF No. 89, at 4, n. 1), the indisputable facts of
the record support Judge Peebles's finding that plaintiff has a "chronicled history of
unabashed misstatements to this and other courts. . ." that both predates and follows the
commencement of the instant action. ECF No. 54, at 15-16.
However, in accordance with the mandate, and rather than proceed with an
expensive evidentiary hearing, Judge Peebles's alternate recommendation, which is as well-

1

The Report-Recommendation cited to two actions plaintiff has filed in the Northern District since
the commencement of the instant action. ECF No. 54, at 14, n. 11 (Dolberry v. Martin, 13-CV-1539, ECF
No. 1, at 2 (N.D.N.Y. Nov. 19, 2013) (maintaining, in his complaint, that he "has filed no other lawsuit dealing
with the same facts involved in this action or otherwise relating to his imprisonment" (emphasis added));
Dolberry v. Martin, 13-CV-1529, ECF No. 2, at 5 (N.D.N.Y. Nov. 19, 2013) (answering "[n]o" to the question in
the verified complaint asking, "Have you ever filed any other lawsuits in any state or federal court relating to
your imprisonment?")).
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reasoned and supported as the first, is accepted and adopted in all respects af ter a de novo
review. See 28 U.S.C. § 636(b)(1).
Therefore, it is
ORDERED that
1. The denial of plaintiff's motion for summary judgment remains in effect;
2. Defendants' motion for summary judgment is DENIED in part and GRANTED in
part;
3. All causes of action against defendants Silvernail, Gutwein, McDermont and
Martuscello are DISMISSED on the merits; and
4. The only claim remaining is the cause of action for retaliation against
defendants Jakob and Saltsman;
The Clerk is directed to serve a copy of this Decision and Order upon plaintiff in
accordance with the Local Rules.
IT IS SO ORDERED.

Dated:

January 15, 2016
Utica, New York

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