Woodward v. Lytle et al

Filing 106

ORDER denying 86 Motion for Reconsideration; denying 88 Appeal of Magistrate Judge Decision to District Court and denying the 100 Appeal as to costs as premature. The exhaustion hearing shall proceed as scheduled on April 12, 2019. Signed by Senior Judge Norman A. Mordue on 3/29/2019. (Copy served on Plaintiff via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
SHAWN WOODWARD,
Plaintiff,
v.

9:16-CV-1174 (NAM/DEP)

LYTLE, Correctional Officer, Cape
Vincent Correctional Facility, et al.,
Defendants.
________________________________________________
Appearances:
SHAWN WOODWARD, Plaintiff Pro Se
00-A-6563
Collins Correctional Facility
P.O. Box 340
Collins, New York 14034
Attorneys for Defendants:
Hon. Barbara D. Underwood,
Attorney General of the State of New York
Helena Lynch, Esq.,
Assistant Attorney General
The Capitol
Albany, New York 12224
Hon. Norman A. Mordue, Senior U. S. District Judge
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff pro se Shawn Woodward, a New York State prison inmate, brings this 42

U.S.C. § 1983 action against seven individual Defendants employed by the New York State
Department of Corrections and Community Supervision (“DOCCS”), alleging civil rights claims
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related to his confinement at Cape Vincent Correctional Facility (“Cape Vincent”). (Dkt. No. 1).
Plaintiff’s remaining claims are for First Amendment retaliation against all Defendants and
Eighth Amendment excessive force against Defendant Dawley. (Dkt. Nos. 30, 36). On
February 9, 2018, Defendants filed for summary judgment, on the basis that Plaintiff’s claims
were barred based on his failure to exhaust the available administrative remedies prior to filing
this action. (Dkt. No. 41). The matter was referred for a Report and Recommendation, which
the Court declined to adopt. (Dkt. Nos. 57, 61). The Court found that “Plaintiff failed to
exhaust his administrative remedies, since Plaintiff never actually filed a grievance related to the
claims in this action, nor did he appeal any such grievance to the CORC,” but an issue of fact
remains as to whether the grievance process was available to Plaintiff. (Dkt. No. 61, p. 7).
Thus, the Court denied Defendants’ motion for summary judgment without prejudice to renew
after an exhaustion hearing. (Id.). Several Defendants moved for reconsideration, which the
Court denied on November 27, 2018. (Dkt. Nos. 63, 66). In that decision, the Court found that
“an exhaustion hearing is necessary to resolve the issue of whether the grievance process was
unavailable to Plaintiff.” (Dkt. No. 66, p. 6).
An exhaustion hearing was scheduled for February 27, 2019 before Magistrate Judge
David E. Peebles, and Plaintiff was appointed pro bono counsel for purposes of the hearing.
(Dkt. No. 71). On January 16, 2019, Plaintiff filed a motion to compel discovery, which Judge
Peebles held in abeyance pending the evidentiary hearing and a written decision concerning the
exhaustion issue. (Dkt. Nos. 72, 73). On February 5, 2019, Judge Peebles held a telephone
conference with the parties, and Plaintiff stated that he wished to proceed pro se at the hearing.
Judge Peebles allowed Plaintiff to proceed pro se and discharged his pro bono counsel. (Dkt.
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Nos. 80, 81). Plaintiff then filed a motion to amend the Complaint, (Dkt. No. 82), which Judge
Peebles denied by order dated February 7, 2019, finding that Plaintiff’s motion was untimely,
and further, that he failed to show good cause for why such an amendment should be permitted.
(Dkt. No. 83). The exhaustion hearing was re-scheduled for April 12, 2019. (Dkt. No. 85). A
Writ of Habeas Corpus Ad Testificandum has been issued for the purpose of securing Plaintiff’s
presence at the hearing. (Dkt. No. 95). Judge Peebles also ordered that the State of New York
will advance the costs of Plaintiff’s transportation, but “these costs shall be repaid to the state
from the monetary award, if any, recovered by Woodward at trial.” (Dkt. No. 94, p. 1).
Now before the Court is a pro se motion from Plaintiff regarding: “(a) Reconsideration
of the November 27, 2018 Order, (b) Objections to Magistrate Judge Peebles’ February 5, 2019
Order.” (Dkt. No. 86). Plaintiff has also filed another pro se appeal regarding: “(i) Objections
to Denial (Dkt. #83) of Motion to Amend/Correct Complaint (Dkt. #82), (ii) Objections to Hold
Plaintiff’s Motion to Compel In Abeyance, (iii) Objections to Pretrial Discovery/Scheduling
Order In Abeyance (Dkt. #73) and Reconsideration of District Court’s (Dkt. #66) Decision to
Schedule Evidentiary Hearing.” (Dkt. No. 88). Defendants oppose these Plaintiff’s requests.
(Dkt. No. 103). Plaintiff has also filed another pro se appeal, which repeats many of these same
arguments, and adds an objection to Judge Peebles’s order regarding transportation costs to the
exhaustion hearing. (Dkt. No. 100).
II.

STANDARD OF REVIEW
a. Motion for Reconsideration
In general, a motion for reconsideration may only be granted upon one of three grounds:

“(1) an intervening change in law, (2) the availability of evidence not previously available, and
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(3) the need to correct a clear error of law or prevent manifest injustice.” Shannon v. Verizon
N.Y., Inc., 519 F. Supp. 2d 304, 307 (N.D.N.Y. 2007); see also Virgin Atl. Airways, Ltd. v. Nat’l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (same) (citing 18 C. Wright, A. Miller & E.
Cooper, Federal Practice & Procedure § 4478 at 790). “[A] motion to reconsider should not be
granted where the moving party seeks solely to relitigate an issue already decided.” Shrader v.
CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). “The standard for reconsideration is strict
and is committed to the discretion of the court.” S.E.C. v. Wojeski, 752 F. Supp. 2d 220, 223
(N.D.N.Y. 2010), aff’d sub nom. Smith v. S.E.C., 432 F. App’x 10 (2d Cir. 2011).
b. Appeal of Magistrate Decision
A magistrate judge may issue orders regarding non-dispositive pretrial matters; such
matters are committed to the discretion of the magistrate judge, and the district court reviews
such orders under the “clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A);
Fed. R. Civ. P. 72(a); see Kiobel v. Millson, 592 F.3d 78, 88 (2d Cir. 2010) (citing Thomas E.
Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990)). “A finding is clearly erroneous
when although there is evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.” Concrete Pipe and
Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993)
(citation omitted). An order is contrary to law “when it fails to apply or misapplies relevant
statutes, case law or rules of procedure.” Tompkins v. R.J. Reynolds Tobacco Co., 92 F. Supp.
2d 70, 74 (N.D.N.Y. 2000) (citation omitted).
“Because the nondispositive review standard is highly deferential, magistrate judges have
broad discretion to regulate nondispositive matters, and reversal is warranted only if that
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discretion is abused.” Carmona v. Wright, 233 F.R.D. 270, 276 (N.D.N.Y. 2006). Deference on
a discovery decision is particularly appropriate in a protracted case such as this one, requiring
frequent involvement by the magistrate judge. Bogan v. Northwestern Mut. Life Ins. Co., 144
F.R.D. 51, 53 (S.D.N.Y. 1992) (noting that a magistrate judge is clearly the best qualified to
“judge the entire atmosphere of the discovery process”).
III.

DISCUSSION
a. Objections to November 27, 2018 Order
First, Plaintiff appears to object to the November 27, 2018 order because Defendants did

not properly request an evidentiary hearing. (Dkt. No. 86, p. 2). Relatedly, Plaintiff seeks
reconsideration of the Court’s decision to schedule an evidentiary hearing. (Dkt. No. 88, p. 3).
However, exhaustion is a threshold issue which should be resolved in this case before further
proceedings. Although Defendants did not request an exhaustion hearing, the Court concluded
that “an exhaustion hearing is necessary to resolve the issue of whether the grievance process
was unavailable to Plaintiff.” (Dkt. No. 66, p. 6). The Court noted that, under the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(a), exhaustion “is a matter of judicial administration,
and the court, not a jury, determines factual disputes regarding an inmate’s alleged failure to
exhaust.” (Id.). Consequently, the Court referred the action to Judge Peebles to conduct an
exhaustion hearing. (Dkt. No. 67). Although Plaintiff disagrees with the Court’s decision, he
has not demonstrated any error or other basis for reconsideration.
b. Objections to February 5, 2019 Order
Second, Plaintiff appears to object to the February 5, 2019 Order for not giving Plaintiff
the opportunity to obtain discovery before the exhaustion hearing. (Dkt. No. 86, p. 2). Plaintiff
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asks for the November 27, 2018 Order to be rescinded, or alternatively, for the February 27,
2019 exhaustion hearing to “be suspended until the end of discovery.” (Id.). Relatedly, Plaintiff
argues that Defendants have not responded to his motion to compel, and the Court erred in
holding that motion in abeyance. (Dkt. Nos. 72, 75, 88, p. 2). However, all discovery in this
action has been stayed pending further order of the Court. (See Dkt. No. 102). And crucially,
the exhaustion hearing is narrowly focused on whether Plaintiff attempted to exhaust his
administrative remedies, which turns on his own testimony versus that of the Defendants—not
any additional discovery. Plaintiff alleges that, on July 14, 2015, while in the SHU, he
submitted a grievance complaining of retaliatory conduct by various Defendants, but that “[l]ater
that week when the Inmate Grievance Program Supervisor made her rounds[,] she told me that
she was not filing my grievance because she knew some of the officers and did not believe what
I was saying.” (Dkt. No. 52-2, pp. 1–2). That narrow factual issue shall be the subject of the
exhaustion hearing. Therefore, the Court finds no error or other basis for reconsideration.
c. Objections to Denial of Motion to Amend/Correct Complaint
On February 6, 2019, Plaintiff submitted a proposed Amended Complaint, noting that he
has not added any new defendants or alleged any new constitutional claims. (Dkt. No. 82).
Judge Peebles denied Plaintiff’s motion to amend as untimely, further finding that Plaintiff
failed to show good cause as to why such an amendment should be permitted. (Dkt. No. 83).
According to the Mandatory Pretrial Discovery and Scheduling Order, amended pleadings were
due by February 14, 2018. (Dkt. No. 39). Thus, while leave to amend be freely given “when
justice so requires,” Fed. R. Civ. P. 15(a)(2), Plaintiff’s proposed amended pleading came more
than one year late, and he did not offer any excuse for the delay, much less show good cause.
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See LaFlamme v. Carpenters Loc. No. 370 Pension Plan, 220 F.R.D. 181, 186 (N.D.N.Y. 2003)
(citing Local Rule 16.1(f)). Moreover, Plaintiff’s appeal of that decision does not point to any
good cause or reason why justice requires the untimely amendment. (Dkt. No. 88).
Accordingly, the Court finds no error in the decision of Judge Peebles.
d. Objection to Order Regarding Transportation Costs
Plaintiff also objects that “if the April 12, 2019 exhaustion hearing is held then because
Defendants raised the affirmative defense of a failure to exhaust claim . . . [i]t should be
Defendants’ responsibility to cover all transportation fees.” (Dkt. No. 100, pp. 2–3). Judge
Peebles ordered that the State of New York will advance the costs of Plaintiff’s transportation,
but “these costs shall be repaid to the state from the monetary award, if any, recovered by
Woodward at trial.” (Dkt. No. 94, p. 1). Plaintiff’s objection to costs is premature at this point,
since the issue will only become ripe if, after the exhaustion hearing, Plaintiff prevails at trial.
e. Request for Interlocutory Appeal
Lastly, Plaintiff requests that, if the Court fails to reconsider its order to schedule an
exhaustion hearing, the Court should certify the issue for appeal to the Second Circuit. (Dkt.
No. 88, p. 5). A party seeking leave to appeal a district court’s interlocutory order must first
obtain certification from that court pursuant to 28 U.S.C. § 1292(b). In order to certify, the
district court must find that: (1) the order “involves a controlling question of law”; (2) “as to
which there is substantial ground for difference of opinion”; and that (3) “appeal from the order
may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b); see
also Cooper Industries, Inc. v. Agway, Inc., 987 F. Supp. 92, 98–99 (N.D.N.Y. 1997). In this
case, the Court finds that Plaintiff cannot make this showing, for substantially the same reasons
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articulated by the Defendants. (See Dkt. No. 103, pp. 14–17). The Court emphasizes again that
exhaustion is a threshold issue under the Prison Litigation Reform Act, and a hearing is
necessary in this case to make that determination, which will also advance the litigation.
Accordingly, Plaintiff’s request for certification is denied.
IV.

CONCLUSION
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Plaintiff’s motion for reconsideration (Dkt. No. 86) is DENIED; and it

is further
ORDERED that Plaintiff’s appeal (Dkt. No. 88) is DENIED; and it is further
ORDERED that the exhaustion hearing shall proceed as scheduled on April 12, 2019;
and it is further
ORDERED that Plaintiff’s appeal as to costs (Dkt. No. 100) is DENIED as premature;
and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Dated: March 29, 2019
Syracuse, New York

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