Pilgrim v. Meskunas et al

Filing 51

MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge David E. Peebles' August 12, 2014 Report, Recommendation, and Order (Dkt. No. 49 ) is ADOPTED in its entirety. ORDERED that the Estate's motion to dismiss (Dkt. No. 41 ) is DENIED. ORDERED that the parties contact Magistrate Judge David E.Peebles to schedule further proceedings in this matter. Signed by Chief Judge Gary L. Sharpe on 9/29/14. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
PRINCE PILGRIM,
Plaintiff,

9:11-cv-1331
(GLS/DEP)

v.
JOHN DOE et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Prince Pilgrim
Pro Se
92-A-8847
Woodbourne Correctional Facility
99 Prison Road
PO Box 1000
Woodbourne, NY 12788
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224

JOSHUA E. MCMAHON
KRISTEN M. QUARESIMO
Assistant Attorneys General

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Prince Pilgrim commenced this action against

defendants Ted Meskunas, Institutional Steward; an unidentified John Doe
defendant; and Mr. Drown, Commission Hearing Officer, pursuant to 42
U.S.C. § 1983, alleging, among other things, retaliation and due process
violations. (See generally Compl., Dkt. No. 1.) After Meskunas was
dismissed from this action, (Dkt. No. 8), and it became apparent that Drown
was, in fact, deceased, Magistrate Judge David E. Peebles sua sponte
ordered the substitution of the Estate of Curtis Drown, (Dkt. No. 35).
On September 11, 2013, the Estate filed a motion to dismiss pursuant
to Fed. R. Civ. P. 12(b)(2), (5), and (6). (Dkt. No. 41.) In an August 12,
2014 Report, Recommendation, and Order (R&R), Judge Peebles
recommended that the Estate’s motion to dismiss be denied. (Dkt. No. 49.)
Pending are the Estate’s objections to the R&R. (Dkt. No. 50.) For the
reasons that follow, the R&R is adopted in its entirety.
II. Background1

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The underlying facts, though not particularly relevant to the Estate’s objections, are
summarized briefly as follows. Pilgrim, an inmate currently held in the custody of the New York
State Department of Corrections and Community Supervision (DOCCS), received an order
directing his transfer from the Clinton Correctional Facility, where he was housed at the time
his claims arose, to the Clinton Annex. (Compl. at 9.) Pilgrim claims that the transfer order
was retaliatory, and that it was issued in response to a grievance that he previously filed. ( Id.)
Pilgrim refused to comply with the transfer order, and was then issued a misbehavior report.
(Id.) Thereafter, a hearing was held in connection with the misbehavior report. (Id. at 10-11.)
Pilgrim alleges that, at the hearing, which was conducted by Drown, his due process rights
were violated. (Id. at 11.)

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Given that the Estate’s objections primarily relate to the procedural
history of this case, it is necessary to provide a more in-depth explanation
of how this litigation has progressed to date. To begin, Pilgrim’s complaint
was filed on November 10, 2011, (see generally Compl.), and, as noted
above, one named defendant, Meskunas, was dismissed from this action
after this court’s initial review of the complaint, pursuant to 28 U.S.C.
§§ 1915(e) and 1915A, (Dkt. No. 8). After the summons was issued, it was
discovered that the other named defendant, Drown, had passed away prior
to Pilgrim’s commencement of the action, and, therefore, the summons was
never served upon him. (Dkt. No. 13.)
In light of the discovery that Drown was deceased, and the fact that
the only other remaining defendant could not be identified, Judge Peebles
issued a text order, on October 30, 2012, directing Pilgrim to file a status
report on or before November 20, 2012 indicating whether he intended to
proceed with the action. Pilgrim never responded. Faced with this peculiar
procedural posture, on November 30, 2012, Judge Peebles issued a text
order sua sponte joining Thomas LaValley, Superintendent of Clinton
Correctional Facility, to the action solely to assist Pilgrim in identifying the
Doe defendant.
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The docket reflects no mention of Drown for the next four months.
Then, during an April 17, 2013 conference, Judge Peebles, among other
things, discussed with Pilgrim “the options he has available to ascertain the
identity of [Drown’s] Estate.” On May 31, Pilgrim filed a motion to compel,
and, in the cover letter, stated that he was “unable to execute the
requirements of FRCP Rule 25 (sic)” because he could not ascertain the
necessary information regarding Drown’s Estate, if any, and further
requested the court’s assistance in obtaining this information. (Dkt. No. 28,
Attach. 1.) In response, Judge Peebles issued an order directing
defendants’ counsel to determine whether DOCCS possessed information
concerning Drown’s estate, and, if so, further directing defendants’ counsel
to provide that information to Pilgrim. (Dkt. No. 31.) Defendants’ counsel
then obtained and furnished the relevant information regarding the Estate,
and Judge Peebles, on July 12, 2013, sua sponte ordered the substitution
of the Estate, and directed the clerk to issue a summons to the Estate.
(Dkt. No. 35.)
A summons was issued to the Estate, (Dkt. No. 36), and the Attorney
General’s office filed a notice of appearance on behalf of the Estate, (Dkt.
No. 37). In lieu of an answer, the Estate moved to dismiss the complaint,
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arguing that Pilgrim failed to state a claim, and that personal jurisdiction
was lacking. (Dkt. No. 41.) In his R&R, Judge Peebles recommended that
the motion to dismiss be denied. (Dkt. No. 49.)
III. Standard of Review
Before entering final judgment, this court reviews report and
recommendation orders in cases it has referred to a magistrate judge. If a
party properly objects to a specific element of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006).
In those cases where no party has filed an objection, only vague or general
objections are made, or a party resubmits the same papers and arguments
already considered by the magistrate judge, this court reviews the findings
and recommendations of the magistrate judge for clear error. See id. at *45.
IV. Discussion
In this Circuit, the onus is on the district court to liberally interpret pro
se filings and read them “to raise the strongest arguments that they
suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
5

2006). Unfortunately, however, in faithfully executing this dictate, the line
between arbiter and advocate sometimes becomes blurred, no matter how
earnestly a judge endeavors to remain neutral. And the result can be
dangerous: relaxing—and sometimes disregarding—the rules for pro se
plaintiffs leads to mulligans, delays, and errors, often to the detriment of the
represented party. This case is a perfect example.
With those thoughts in mind, the court now turns to the issues and
objections raised by the Estate here. Ultimately, while this court may have
done things differently at various points throughout this litigation, the R&R
itself is legally sound, and is adopted in its entirety.
A.

The Estate’s Motion to Dismiss and the R&R
In its motion to dismiss, the Estate argues that: (1) the complaint

should have been dismissed as against Drown based upon the failure to
effectuate service upon him within 120 days of commencement of the
action; (2) the court improvidently invoked Fed. R. Civ. P. 25(a) to
substitute the Estate; and (3) even if the complaint were considered to be
amended, rather than parties substituted pursuant to Rule 25, Pilgrim’s
claims against the Estate are untimely under the statute of limitations. (Dkt.
No. 41, Attach. 2 at 6-10.)
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As to the Estate’s first point, Judge Peebles noted that, because
Drown died prior to the commencement of the action, the summons was
not served on him within the requisite time period, and, further, Drown was
never made a party to the action. (Dkt. No. 49 at 6-7.) Judge Peebles
further noted that, “[t]he appropriate recourse, had it been sought, would
have been to dismiss . . . Drown from the lawsuit without prejudice,” but
“[b]ecause . . . Drown was deceased, . . . that relief did not seem either
necessary or appropriate.” (Id. at 7.) In any event, Judge Peebles
observed, the summons that made the Estate a party to the action was
issued on July 12, 2013, the Attorney General appeared on behalf of the
Estate, and the Estate did not contend that the service of that summons
was untimely. (Id.) Accordingly, Judge Peebles concluded, untimely
service of the summons does not provide a basis for dismissal of this action
as against the Estate. (Id.)
As to the Estate’s second point, Judge Peebles conceded that,
because Drown was never a party to the action, substitution was
inappropriate under Rule 25. (Id. at 8-9.) Judge Peebles noted that “[t]he
better approach would have been for the court to construe [Pilgrim]’s letter
request, [filed on May 30, 2013, (Dkt. No. 28, Attach. 1)], as a motion for
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leave to amend and join an additional party.” (Id. at 9.) Judge Peebles
then recommended that the court construe his text order, dated July 12,
2013—which ordered substitution of the Estate—as effectively having
granted Pilgrim leave to amend his complaint and join the Estate as a party
as of that date. (Id.)
Finally, in response to the Estate’s third point, Judge Peebles
concluded that, at the time that he “effectively” granted Pilgrim’s request to
amend, on July 12, 2013, the claims against the Estate were still timely.
(Id. at 10-13.) The statute of limitations for a § 1983 action in New York is
three years, but because Drown was deceased, the statute of limitations
was tolled by eighteen months after Drown’s death; this required that
eighteen months be added to the statute of limitations. (Id. at 11-12 (citing
N.Y. C.P.L.R. §§ 210(b), 214(5); Connolly v. McCall, 254 F.3d 36, 40-41
(2d Cir. 2001); Glamm v. Allen, 57 N.Y.2d 87, 95 (1982).) The hearing over
which Drown presided ended on January 12, 2009. (Id. at 11.) Thus,
adding eighteen months to the three-year statute of limitations pursuant to
N.Y. C.P.L.R. § 210(b), Pilgrim’s claims against the Estate are timely if
interposed on or before July 12, 2013. (Id. at 12-13.) Because the court’s

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July 12, 2013 text order “effectively granted” Pilgrim’s request to amend,
Judge Peebles concluded that Pilgrim’s claims are timely. (Id.)
B.

The Estate’s Objections and Discussion Thereof
In its objections, the Estate, understandably, expresses frustration

with how this litigation has progressed. Indeed, the Estate states that, after
Pilgrim failed to respond to Judge Peebles’ October 30, 2012 text order
directing him to indicate whether he wished to proceed with the litigation in
light of the fact that Drown is deceased, counsel for defendants “operat[ed]
under the presumption that the claims against . . . Drown had been
constructively dismissed.” (Dkt. No. 50 at 3.) Drown was not, however,
ever officially dismissed, and, as Judge Peebles noted in his R&R,
defendants never sought dismissal. (Dkt. No. 49 at 7.) At best, then, most
of the Estate’s “objections” are merely general gripes with the procedural
history of this case, and—while perhaps justified—are unrelated to the
R&R, and do not warrant de novo review.
The Estate also objects to one portion of the R&R itself; specifically,
the Estate objects to the portion of the R&R which construed the July 12,
2013 text order as “‘effectively having granted [Pilgrim] leave to amend his
complaint.’” (Dkt. No. 50 at 4 (quoting Dkt. No. 49 at 9).) The Estate
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claims that, because its motion to dismiss “has as its foundation a
challenge to the applicability of Rule 25(a),” “[t]he internal inconsistency
created by an Order that undertakes to decide a motion by simultaneously
nullifying the very thing that rendered a decision necessary in the first place
is apparent on its face.” (Id.) The Estate further claims that Judge
Peebles’ recommendation denied it due process. (Id. at 4-5.)
Although Judge Peebles’ post hoc construction of an order is
certainly unusual, the Estate has cited no authority indicating that the
recommendation is improper. Instead, the Estate appears to argue that: (1)
it was “internally inconsistent”; and (2) it was denied due process, either
because it should have had an opportunity to respond to Pilgrim’s motion to
amend, or it should have had an opportunity to respond to the pleading.
(Id. at 4-5.) Neither of the Estate’s points are persuasive.
First, Judge Peebles’ recommendation does not, as the Estate
suggests, effectively moot its motion to dismiss. Indeed, in its
memorandum of law in support of its motion to dismiss, the Estate itself
contemplated the possibility that Pilgrim could have filed a motion to amend
instead of a motion to substitute, as evidenced by its discussion of the
statute of limitations. (Dkt. No. 41, Attach. 2 at 7-10.) With respect to the
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Estate’s second point, the Estate was not a party to the action when Pilgrim
filed the motion, and, therefore, would not have been permitted to file a
response to that motion. (Dkt. No. 28, Attach. 1; Dkt. Nos. 36, 37.)
Further, the Estate did have an opportunity to respond to the pleading, as
evidenced by its motion to dismiss in lieu of an answer. (Dkt. Nos. 37, 41.)
Moreover, in light of the denial of its motion to dismiss, the Estate will have
another opportunity to respond to the complaint.
Ultimately, it is clear that, after he candidly acknowledged his mistake
in ordering substitution pursuant to Fed. R. Civ. P. 25, rather than
amendment, Judge Peebles endeavored to right the ship, and, in doing so,
ensure that a pro se plaintiff was not prejudiced by judicial error.
Therefore, it is appropriate to construe Judge Peebles’ July 12, 2013 text
order as one granting leave to amend, rather than ordering substitution.
Having reviewed the remainder of the R&R for clear error, and finding
none, the court adopts it in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge David E. Peebles’ August 12, 2014
Report, Recommendation, and Order (Dkt. No. 49) is ADOPTED in its
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entirety; and it is further
ORDERED that the Estate’s motion to dismiss (Dkt. No. 41) is
DENIED; and it is further
ORDERED that the parties contact Magistrate Judge David E.
Peebles to schedule further proceedings in this matter; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
September 29, 2014
Albany, New York

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