Girard v. Cuttle et al

Filing 124

DECISION AND ORDER: ORDERED that the defendant Cuttle, and the Fourteenth Amendment due process claim against him (as set forth in the amended complaint) are DISMISSED from this action without prejudice. Signed by Senior Judge Thomas J. McAvoy on 8/3/16. (served in plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CHAUNCEY GIRARD,
Plaintiff,
v.

9:15-CV-0187
(TJM/DJS)

CUTTLE, et al.,
Defendants.

APPEARANCES:

OF COUNSEL:

CHAUNCEY GIRARD
11-A-1352
Plaintiff, pro se
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Represented Defendants
The Capitol
Albany, New York 12224

JOHN F. MOORE, ESQ.
Ass't Attorney General

THOMAS J. MCAVOY
Senior United States District Judge
DECISION and ORDER
Pro se plaintiff Chauncey Girard commenced this civil rights action pursuant to 42
U.S.C. § 1983 ("Section 1983"). The amended complaint, as modified by a Decision and
Order filed on March 4, 2016, is the operative pleading. Dkt. No. 83 ("Am. Compl"); see also
Dkt. No. 82 (the "March 2016 Order"). Among other things, and as relevant to this Decision
and Order, the March 2016 Order found that plaintiff's Fourteenth Amendment due process
claim against defendant Cuttle arising out of a disciplinary proceeding at which defendant

Cuttle was the presiding hearing officer survived sua sponte review. March 2016 Order at
7-8. However, because plaintiff was subjected to "mixed sanctions" affecting both the
duration of his confinement (i.e., the recommended loss of good time) and the conditions of
his confinement as a result of that disciplinary hearing, plaintiff was advised that in order to
proceed with his claims against defendant Cuttle arising out of the disciplinary proceeding
held before him, plaintiff must first submit a so-called "Peralta Waiver" in which he "waives
for all times all claims in this action relating to disciplinary sanctions affecting the duration of
his confinement (i.e., the recommended loss of good time) in order to proceed with his claims
challenging the sanctions affecting the conditions of his confinement." March 2016 Order at
8-10, 19.1 "The Court specifically advise[d] plaintiff that the Court will deem his failure to file
this statement (the "Peralta Waiver") within the required time to constitute his refusal to waive
these claims, and such failure will result in the dismissal of defendant Cuttle, and the
Fourteenth Amendment due process claim against him, from this action without prejudice."
Id. at 10.
In response to the March 2016 Order, plaintiff submitted a document wherein he
argued that defendant Cuttle should remain as a defendant because plaintiff believed that he
had alleged a meritorious due process claim against him. Dkt. No. 87 at 2-3. By Decision
and Order filed on April 4, 2016, the Court found as follows:
Plaintiff's assertion that his due process claim against defendant Cuttle has
merit does not overcome the fact that Peralta requires plaintiff to waive his
challenge to the recommended loss of good time for all time in order to proceed
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Because plaintiff was subjected to "mixed sanctions" in the disciplinary proceeding complained of, and
because he has not demonstrated that these determinations have been invalidated, his claims are barred by the
favorable termination rule of Heck v. Humphrey, 512 U.S. 477 (1994), unless "he is willing to forgo once and for
all any challenge to any sanctions that affect the duration of his confinement." Peralta v. Vasquez, 467 F.3d 98,
104 (2d Cir. 2006).

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at this time with his challenge to the sanctions that affected the conditions of his
confinement. See Peralta, 467 F.3d at 104.
Dkt. No. 88 (the "April 2016 Order) at 3. In light of his pro se status, plaintiff was afforded a
"second (and last) opportunity to submit the required Peralta Waiver if he wishe[d] to proceed
with his Fourteenth Amendment due process claim arising out of the disciplinary proceeding
conducted by defendant Cuttle." Id. at 3-4. Repeating the warning issued in the March 2016
Order, the Court again advised plaintiff that the "Peralta Waiver must clearly and
unequivocally state that plaintiff waives for all times all claims in this action against defendant
Cuttle relating to disciplinary sanctions affecting the duration of plaintiff's confinement (i.e.,
the recommended loss of good time) in order to proceed with his claims against defendant
Cuttle challenging the sanctions affecting the conditions of his confinement." April 2016
Order at 4 (citing March 2016 Order at 8-10, 19).
Plaintiff subsequently submitted a document bearing the heading "Motion for Peralta
Waiver." Dkt. No. 95. By this submission, plaintiff purported to comply with the waiver
requirement of Peralta but, instead, stated
Plaintiff waive[s] at this time as to Amend at a later time all Claims in this
action affecting the Loss of Good time and Duration of Confinement to bring
Violation of Due Process Claim Upon Defendant Cuttle.
Id. at 2 (emphasis added). After carefully scrutinizing plaintiff's submission, the Court was
unable to construe it as a waiver for all times for all claims in this action relating to
disciplinary sanctions affecting the duration of his confinement. By Decision and Order filed
May 12, 2016, the Court advised plaintiff that he "may not waive his ability to challenge the
loss of good time claims 'for all times' (as is required by Peralta) and at the same time retain
the ability to amend those claims." Dkt. No. 109 (the "May 2016 Order") at 3.
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In light of plaintiff's pro se status, and because he may have misunderstood the effect
of a Peralta Waiver, he was afforded a third and final opportunity to submit the waiver
required by Peralta if he wished to proceed with his due process claims arising out of the
disciplinary proceeding presided over by defendant Cuttle. May 2016 Order at 4. Plaintiff
was again advised that any Peralta waiver must clearly and unequivocally state that he
"waives for all times all claims against defendant Cuttle in this action relating to disciplinary
sanctions affecting the duration of his confinement (i.e., the recommended loss of good time)
in order to proceed with his claims against defendant Cuttle challenging the sanctions
affecting the conditions of his confinement." Id. at 3-4 (citing March 2016 Order at 10; April
2016 Order at 4).
Plaintiff was warned that in the event a proper Peralta Waiver was not filed within
twenty (20) days of the date of May 2016 Order, his due process claims against defendant
Cuttle would be dismissed without prejudice in accordance with Heck v. Humphrey. After the
May 2016 Order issued, plaintiff requested and was granted an extension of time until July 6,
2016, to submit a Peralta Waiver. Dkt. Nos. 111, 113. Despite the extension of time, and
multiple opportunities afforded to plaintiff to comply with the Court's orders, plaintiff has not
submitted a Peralta Waiver.
WHEREFORE, it is hereby
ORDERED that the defendant Cuttle, and the Fourteenth Amendment due process
claim against him (as set forth in the amended complaint) are DISMISSED from this action

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without prejudice; 2 and it is further
ORDERED that the Clerk shall serve a copy of this Decision and Order on the parties.
IT IS SO ORDERED.
Dated:August 3, 2016

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See Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) (stating that dismissal under Heck is without
prejudice and that, if the plaintiff's conviction or sentence is later declared invalid or called into question by a
federal court's issuance of a writ of habeas corpus, he may reinstate his suit).

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