Banks v. Annucci
DECISION AND ORDER: ORDERED, that Plaintiff's Motion (Dkt. No. 37 ) to vacate the Court's March 2016 Order (Dkt. No. 33) is DENIED. ORDERED, that Plaintiff's Motion (Dkt. No. 37 ) to vacate the Court's Judgment (Dkt. No. [ 35]) is GRANTED. ORDERED, that if Plaintiff wishes to proceed with this action, he must file an amended complaint as described in the March 2016 Order within ninety days of the filing date of this Decision and Order. ORDERED, that if Plaintiff f ails to file a signed amended complaint within ninety days of the filing date of this Decision and Order, the Clerk shall enter judgment without further order of the Court dismissing this action with prejudice due to Plaintiffs failure to state a cla im upon which relief can be granted and to comply with the terms of this Decision and Order. ORDERED, that upon the timely filing of an amended complaint, the Clerk shall return the file to the Court for further review. Signed by Senior Judge Lawrence E. Kahn on 9/29/17. (served on plaintiff by regular mail)(alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DECISION AND ORDER
Pro se plaintiff Edwin Banks commenced this civil rights action on March 27, 2014,
against defendant Anthony Annucci, Acting Commissioner of New York State Department of
Corrections and Community Supervision (“DOCCS”), alleging that Defendant “has created and
is overseeing a culture of governmental corruption within DOCCS, based around covering up the
violations of prisoners [sic] rights by mentally incompetent staff.” Dkt. No. 1 (“Complaint”) ¶ 8.
On March 2, 2016, the Court adopted the Report-Recommendation, Dkt. No. 31 (“ReportRecommendation”), of U.S. Magistrate Judge David E. Peebles, dismissing the Complaint
without prejudice and with leave to amend. Dkt. No. 33 (“March 2016 Order”). Plaintiff failed to
amend his Complaint within the ninety-day deadline set by the Court, Mar. 2016 Order at 4, and
judgment was entered against Plaintiff on June 6, 2016, Dkt. No. 35 (“Judgment”).
Currently before the Court is Plaintiff’s motion to vacate the March 2016 Order and
Judgment, which was postmarked June 5, 2017. Dkt. No. 37 (“Motion”). Defendant filed a
response. Dkt. No. 39 (“Opposition”). For the reasons that follow, Plaintiff’s Motion is granted
in part and denied in part.
In his Complaint, Plaintiff alleges systematic abuses in DOCCS’s employee hiring and
training procedures. Compl. ¶ 9. Specifically, he claims that because of rampant nepotism and
favoritism, most DOCCS employees are “mentally incompetent.” Id. ¶¶ 8, 10–11. In turn, these
mentally incompetent employees have caused pervasive and consistent violations of prisoners’
constitutional rights. Id. ¶ 14. When prisoners file grievances about these constitutional
violations, they are retaliated against. Id. ¶¶ 14–19. Plaintiff attributes all of these problems to
Defendant and his failure to put in place procedures to properly train and supervise employees
and to eradicate corruption at DOCCS. Id. ¶¶ 21–25. Plaintiff sued Defendant solely in his
official capacity. Id. ¶ 7.
On initial review, the Court dismissed Plaintiff’s Complaint with leave to amend for
failure to adequately allege Defendant’s personal involvement in the alleged wrongdoing. Dkt.
No. 11 (“June 2014 Order”) at 7 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
Plaintiff then filed a motion for reconsideration, Dkt. No. 17, which the Court granted. Dkt.
No. 24 (“March 2015 Order”). On May 4, 2015, Defendant filed a motion to dismiss for failure
to state a claim. Dkt. No. 28 (“Motion to Dismiss”). Judge Peebles recommended that Plaintiff’s
damages claim be dismissed without leave to amend because Defendant enjoyed Eleventh
Amendment immunity. Rep.-Rec. at 11. Additionally, Judge Peebles found that the Complaint
was too “broad and conclusory” to allege any personal involvement by Defendant. Id. at 15.
Considering Plaintiff’s pro se status, Judge Peebles recommended that Plaintiff be given leave to
amend his Complaint to allege Defendant’s personal involvement. Id. at 17–18. On March 2,
2016, the Court adopted the Report-Recommendation in its entirety and gave Plaintiff ninety
days to amend his Complaint. Mar. 2016 Order at 4. Plaintiff failed to amend his Complaint and
judgment was entered against him on June 6, 2016. Judgment at 1.1
In his Motion, Plaintiff alleges that on February 28, 2016, he was placed in Attica
Correctional Facility’s Mental Health Unit (“MHU”), where he was unable to receive or send
mail. Mot. ¶ 6. On April 14, 2016, Plaintiff was committed to Central New York Psychiatric
Center (“CNYPC”), where he had no access to his property or the law library. Id. ¶ 7. As a result
of his inability to receive mail at Attica and his transfer to CNYPC, Plaintiff did not receive the
Court’s March 2016 Order. Id. ¶ 8. Thus, Plaintiff was not able to meet the Court’s ninety-day
deadline to amend his Complaint. Id. Plaintiff was served the March 2016 Order and the
Judgment via regular mail at CNYPC on June 21, 2016. Dkt. On November 22, 2016, Plaintiff
was transferred to Marcy Correctional Facility’s MHU, where he remains and has no or limited
access to legal materials. Id. ¶ 7. Plaintiff’s current Motion was postmarked June 5, 2017. Mot.
Plaintiff brings his motion under Federal Rule of Civil Procedure 60(b), which states,
inter alia, that a court may vacate a judgment for “(1) mistake, inadvertence, surprise, or
excusable neglect;” “(3) fraud, . . . misrepresentation, or misconduct by an opposing party;” or
“(6) any other reason that justifies relief.” “The decision whether to grant a party’s Rule 60(b)
motion is committed to the ‘sound discretion’ of the district court.” Stevens v. Miller, 676 F.3d
The page numbers for the Judgment refer to those generated by the Court’s electronic
filing system (“ECF”).
The cited page numbers for this document refer to those generated by ECF.
62, 67 (2d Cir. 2012) (quoting Montco, Inc. v. Barr, 666 F.2d 754, 760 (2d Cir.1981)). “Rule
60(b) strikes a balance between serving the ends of justice and preserving the finality of
judgments.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986) (citing House v. Sec’y of Health
& Human Servs., 688 F.2d 7, 9 (2d Cir. 1982)).“[F]inal judgments should not ‘be lightly
reopened.”’ Id. (quoting House, 688 F.2d at 9).
The “excusable neglect” prong in Rule 60(b)(1) is the most relevant to Plaintiff’s Motion.
“Excusable neglect” is an “elastic concept.” Pioneer Investment Services Co. v. Brunswick
Associates Limited Partnership, 507 U.S. 380, 392 (1993) (quoting 4A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1165 (2d ed. 1987)). The question for the
Court is “at bottom an equitable one, taking account of all relevant circumstances surrounding
the party’s omission.” Id. at 395. “Factors to be considered in evaluating excusable neglect
include ‘(1) the danger of prejudice to the [non-movant], (2) the length of the delay and its
potential impact on judicial proceedings, (3) the reason for the delay, including whether it was
within the reasonable control of the movant, and (4) whether the movant acted in good faith.’”
Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003) (quoting Pioneer, 507 U.S.
The case at hand is on all fours with Sacco v. Matter, where the court granted a pro se
prisoner’s motion to vacate for excusable neglect when the plaintiff was “transferred from
Goshen, New York to Bismark, North Dakota and then to Marion, Illinois,” which prevented him
from receiving notice of an impending motion. Sacco v. Matter, 154 F.R.D. 35, 36 (N.D.N.Y.
1994). The court noted that “[w]hile it is clear that plaintiff has neglected his responsibility to
keep the district court apprised of his current address, as well as his duty to keep himself
appraised of the state of his action, his state as a pro se prisoner gives the court broad discretion
to overlook these breaches.” Id. at 37. Here, Plaintiff’s inability to receive mail while committed
to Attica’s MHU, Attica’s return of the Court’s March 2016 Order as not deliverable despite the
fact that Plaintiff was in custody there, and Plaintiff’s subsequent transfer to CNYPC, which
prevented him from receiving timely notice of the Court’s March 2016 Order and Judgment, are
important factors in demonstrating excusable neglect. Id.; see also Brown v. Precinct of
Brooklyn, No. 11-CV-6304, 2012 WL 5438926, at *2 (E.D.N.Y. Nov. 6, 2012) (allowing a pro
se prisoner to file additional information with the court for his motion to vacate after the plaintiff
was not notified about an impending court deadline due to a prison transfer).
Defendant argues that “Plaintiff has  failed to establish any basis to vacate the
judgment.” Opp’n at 5. But Plaintiff has clearly stated that he could not receive mail and his
subsequent transfer prevented him from amending the Complaint within the deadline.
Mot. ¶¶ 6–8. As noted above, these factors are commonly cited when considering claims of
excusable neglect. Defendant also argues that Plaintiff acted unreasonably in waiting eleventh
months after receiving a copy of the Judgment to file his Motion. Opp’n. at 5. A plaintiff must
file a motion to vacate “within a reasonable time—and for [excusable neglect] no more than a
year after the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P.
60(c)(1). “What qualifies as a reasonable time, however, will ordinarily depend largely on the
facts of a given case, including the length and circumstances of the delay and the possibility of
prejudice to the opposing party.” Matter of Emergency Beacon Corp., 666 F.2d 754, 760 (2d Cir.
1981). While waiting eleven months to file a motion to vacate “could arguably be considered
unreasonable, the Court need not render judgment on the issue because [the party’s] motion was
filed within the one-year maximum allowed by [Rule 60(b)].” Brenton v. Consol. Rail Corp.,
No. 00-CV-742, 2003 WL 21383255, at *3 n.9 (W.D.N.Y. Feb. 4, 2013). Although Plaintiff
waited eleven months to file his Motion after receiving notice of the Judgment, his status as a pro
se prisoner, his mental health issues, and his limited access to mail and the law library have
persuaded the Court that Plaintiff’s delay is excusable.
Finally, Defendant argues that Plaintiff’s failure to update his address with the Court
constitutes abandonment of his claim. Opp’n at 3. Under the Local Rules, litigants are
responsible for notifying the court of a change of address. L.R. 10.1(c)(2). But the Court has
discretion to excuse failure to comply with the local rules. Hotz v. Rockefeller & Co., 258 F.3d
62, 73 (2d Cir. 2001). Since the Second Circuit affords incarcerated pro se litigants particular
consideration with regard to complying with formalities, the Court is willing to overlook
Plaintiff’s failure to comply with the Local Rules in this instance. Sacco, 154 F.R.D. at 37.
Lastly, the Court declines to vacate its March 2016 Order adopting Judge Peebles’s
Report-Recommendation. Plaintiff must still correct the deficiencies in his Complaint in order to
state a claim on which relief can be granted, or else the Complaint will be dismissed with
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motion (Dkt. No. 37) to vacate the Court’s March 2016
Order (Dkt. No. 33) is DENIED; and it is further
ORDERED, that Plaintiff’s Motion (Dkt. No. 37) to vacate the Court’s Judgment (Dkt.
No. 35) is GRANTED; and it is further
ORDERED, that if Plaintiff wishes to proceed with this action, he must file an amended
complaint as described in the March 2016 Order within ninety days of the filing date of this
Decision and Order, and it is further
ORDERED, that if Plaintiff fails to file a signed amended complaint within ninety days
of the filing date of this Decision and Order, the Clerk shall enter judgment without further order
of the Court dismissing this action with prejudice due to Plaintiff’s failure to state a claim upon
which relief can be granted and to comply with the terms of this Decision and Order; and it is
ORDERED, that upon the timely filing of an amended complaint, the Clerk shall return
the file to the Court for further review; and it is further
ORDERED, that the Clerk serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
September 29, 2017
Albany, New York
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