Girard v. Cuttle et al
Filing
88
DECISION AND ORDER: ORDERED that plaintiff is afforded a second (and last) opportunity to file the Peralta Waiver required by the March 2016 Order if he wishes to proceed in this action with his Fourteenth Amendment due process claims against Cuttle challenging the disciplinary sanctions affecting the conditions of his confinement. ORDERED that plaintiff must file his Peralta Waiver within twenty (20) days of the date of this Decision and Order. ORDERED that upon plaintiff's filing of t he Peralta Waiver, and in all events, at the expiration of the twenty (20) day period from the filing date of this Decision and Order, the Clerk shall return the file to the Court for further review. Signed by Senior Judge Thomas J. McAvoy on 4/4/16. (served on 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 Defendants Hickey,
Venditti, Abate, Thomas, Gilfus
State of New York
The Capitol
Albany, NY 12224
JOHN F. MOORE, ESQ.
Ass't Attorney General
THOMAS J. MCAVOY
United States District Judge
DECISION AND ORDER
Plaintiff Chauncey Girard commenced this action by submitting a pro se civil rights
complaint pursuant to 42 U.S.C. § 1983 ("Section 1983"). Dkt. No. 1 ("Compl."). Plaintiff
also filed an application to proceed in forma pauperis. Dkt. No. 5 ("IFP Application"). By
Decision and Order filed March 23, 2015, plaintiff's IFP Application was granted and the
sufficiency of the claims asserted in the complaint was considered in accordance with 28
U.S.C. § 1915(e) and 28 U.S.C. § 1915A. Dkt. No. 9 (the " March 2015 Order"). On the
basis of that review, the Court found that the Eighth Amendment excessive force claims
against defendants Hickey, Venditti, Thomas, Abate, and Gilfus and the First Amendment
retaliation claims against defendants Hickey, Venditti, and Thomas survived sua sponte
review and required a response. March 2015 Order at 10-11. The remaining claims and
defendants were dismissed. Id. Defendants Hickey, Venditti, Thomas, Abate, and Gilfus
submitted an answer. Dkt. No. 40.
Plaintiff subsequently filed five motions to amend his complaint. Dkt. Nos. 38, 39, 47,
59, and 64. By Decision and Order filed March 4, 2016, plaintiff's last-filed motion to amend
(Dkt. No. 64) was granted in part and denied in all other respects and the rem aining motions
to amend (Dkt. Nos. 38, 39, 47, and 59) were denied. Dkt. No. 82 (the "March 2016 Order").1
Among other things, 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. Id. at 7-8. As
a result of the disciplinary hearing, 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. Therefore, in order to proceed with his claim against defendant Cuttle
challenging the sanctions affecting the conditions of his confinement, and because plaintiff
had not demonstrated that the hearing determination had been invalidated, his due process
claim against defendant Cuttle was 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
1
The amended complaint, as modified by the March 2016 Order, is the operative pleading. See Dkt.
No. 83; see also March 2016 Order.
2
to any sanctions that affect the duration of his confinement." Peralta v. Vasquez, 467 F.3d
98, 104 (2d Cir. 2006); see also March 2016 Order at 8-10. Thus, the Court advised plaintiff
that in order for him to proceed with his due process claim against defendant Cuttle, 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; see
also McEachin v. Selsky, 225 F. App'x 36, 37 (2d Cir. 2007) (where an inmate brings a
"mixed sanction" claim, the district court must provide the inmate with the option to "waive all
claims relating to sanctions affecting the duration of his imprisonment in order to proceed
with claims challenging the sanctions affecting the conditions of his confinement."). The
March 2016 Order therefore afforded plaintiff thirty days within which to advise the Court in
writing whether he wished to waive his due process claims challenging the recommended
loss of good time credits (the "Peralta Waiver"). March 2016 Order at 10, 19.
Currently before the Court is plaintiff's response to the March 2016 Order. Dkt. No.
87. Construed liberally, plaintiff argues that defendant Cuttle should remain as a defendant
because plaintiff has alleged a meritorious due process claim against him. Id. at 2-3.
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 at this time with his challenge to the
sanctions that affected the conditions of his confinement. See Peralta, 467 F.3d at 104.
In light of plaintiff's pro se status, he is hereby afforded a second (and last) opportunity
3
to submit the required Peralta Waiver if he wishes to proceed with his Fourteenth
Amendment due process claim arising out of the disciplinary proceeding conducted by
defendant Cuttle. As advised in the March 2016 Order, 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. See March 2016
Order at 8-10, 19.
Plaintiff is advised that in the event a proper Peralta waiver is not filed within twenty
(20) days of the filing date of this Decision and Order, defendant Cuttle and the due process
claim against him will be dismissed without prejudice in accordance with Heck v. Humphrey,
512 U.S. 477. 2
WHEREFORE, it is hereby
ORDERED that plaintiff is afforded a second (and last) opportunity to file the Peralta
Waiver required by the March 2016 Order if he wishes to proceed in this action with his
Fourteenth Amendment due process claims against Cuttle challenging the disciplinary
sanctions affecting the conditions of his confinement; and it is further
ORDERED that plaintiff must file his Peralta Waiver within twenty (20) days of the
date of this Decision and Order; and it is further
ORDERED that upon plaintiff's filing of the Peralta Waiver, and in all events, at the
2
The dismissal of this claim would be without prejudice. 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).
4
expiration of the twenty (20) day period from the filing date of this Decision and Order, the
Clerk shall return the file to the Court for further review; 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:
April 4, 2016
_____________________________________
Hon. Thomas J. McAvoy, SUSDJ
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