Salim v. Bare Hill Correctional Facility et al

Filing 29

ORDER: Denying the # 28 Motion for Reconsideration. It is further ORDERED that the Clerk of the Court shall serve a copy of this Order on the parties inaccordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on September 3, 2019. (Copy served via regular mail).(rep)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
INFA SALIM, also known as Salim Infa, also
known as Ben Hannida Ramzi,
Plaintiff,
vs.

9:18-cv-57
(MAD/ATB)

SERGEANT PATNODE, Bare Hill Correctional
Facility
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

INFA SALIM
16-A-4833
Great Meadow Correctional Facility
Box 51
Comstock, New York 12821
Plaintiff, pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendant

MATTHEW P. REED, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision ("DOCCS"), commenced this action pro se on January 18, 2018,
pursuant to 42 U.S.C. § 1983 ("Section 1983"). See Dkt. No. 1. Plaintiff alleged that on
November 17, 2017, while housed at Bare Hill Correctional Facility ("Bare Hill C.F."), Defendant
Patnode and four unknown officers assaulted him causing physical injuries for which he received
no medical attention. See id. at 5. Plaintiff further alleged that after being put into his cell, he
was deprived of "food, supplies and showers for [five] days." Id. at 5-6.

In its March 5, 2018, Decision and Order, this Court found that Plaintiff's Eighth
Amendment excessive force claim survived initial review and merited a response, and dismissed
all other Defendants and claims. See Dkt. No. 7. On May 2, 2018, Defendant Patnode filed a
motion to dismiss grounded in Plaintiff's alleged failure to exhaust all administrative remedies
before commencing his Section 1983 action, as required by the Prison Litigation Reform Act
("PLRA"). See Dkt. No. 16. Plaintiff responded in opposition to Defendant's motion on October
21, 2018, asserting that he filed his grievance with the intention of exhausting his administrative
remedies—an effort he nevertheless found pointless1—and when the Inmate Grievance Review
Committee ("IGRC") directed Plaintiff to the Bare Hill C.F. law library, he mistakenly thought
that he could proceed to file his Section 1983 complaint. See Dkt. No. 24 at 1-2. On November
9, 2018, Magistrate Judge Andrew T. Baxter issued his Report and Recommendation, finding
Plaintiff had not exhausted his administrative remedies as required by the PLRA, and that
Plaintiff did not demonstrate that the grievance process was "unavailable," that is, "operat[ing] as
a simple dead end," or unnavigable by an ordinary prisoner because "it is so opaque that it
becomes, practically speaking, incapable of use," or that "prison administrators thwart inmates
from taking advantage of the grievance process through machination, misrepresentation, or
intimidation." Dkt. No. 25 at 7 (quoting Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850, 1859
(2016)). This Court in its December 6, 2018, Order adopted Judge Baxter's recommendation in
its entirety and dismissed Plaintiff's claim against Defendant Patnode. See Dkt. No. 26.
On June 19, 2019, the Court received a submission from Plaintiff that it has construed as a
motion for reconsideration. See Dkt. No. 28. In his motion, Plaintiff argues that the Court

See Dkt. No. 24 at 1-2 ("[N]o apparent solution . . . could have been offered by the
facility. How was the facility supposed to help me after complaining that Defendant Patnode
abused me physically, send me an apology letter?").
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disregarded his reasonable arguments against dismissing his remaining claim. See id. at 1.
Plaintiff also asserts that Magistrate Judge Baxter misstated the law library to which the IGRC
directed Plaintiff. See id. at 1-2. Plaintiff laments the faith he lost in the justice system,
informing the Court that he may also lose his left eye because of injuries sustained during the
alleged incident, see id. at 2-3, and that he has "attempt[ed] to commit suicide about a dozen
time[s] and spen[t] almost [three] months in an intensive suicide[]watch," id. at 3. He states that
the PLRA should be amended to afford prisoners in "special circumstances" the right to bypass
the statute's mandatory exhaustion requirement and file suit directly in federal court. See id.
Plaintiff speculates that the Office of Special Investigations of DOCCS possesses "plenty of
complaints where inmates suffered retaliation after filing a grievance at their facility." Id.
The standard for granting a motion for reconsideration "is strict, and reconsideration will
generally be denied unless the moving party can point to controlling decisions or data that the
court overlooked—matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)
(citing Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990); Adams v. United States,
686 F. Supp. 417, 418 (S.D.N.Y. 1988)). The burden of proof in a Rule 60(b) motion falls on the
party challenging the earlier judgment. See United States v. Int'l Bhd. of Teamsters, 247 F.3d
370, 391 (2d Cir. 2001) (citing Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir.
1994)).
The purpose of reconsideration is not for "advanc[ing] new facts, issues or arguments not
previously presented to the Court." In re Gildan Activewear, Inc., No. 08 Civ. 5048, 2009 WL
4544287, *2 n.3 (S.D.N.Y. Dec. 4, 2009) (citing Caribbean Trading & Fid. Corp. v. Nigerian
Nat'l Petroleum Corp., 948 F.2d 111, 115 (2d Cir. 1991)). Additionally, a motion for
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reconsideration should not be granted if the moving party "seeks solely to relitigate an issue
already decided." Shrader, 70 F.3d at 257; see also Lichtenberg v. Besicorp Grp., Inc., 28 Fed.
Appx. 73, 75 (2d Cir. 2002) ("A motion for reconsideration is not an opportunity for the moving
party to argue those issues already considered when a party does not like the way the original
motion was resolved") (quotation omitted).
"In this district, there are only three circumstances under which a court will grant a motion
for reconsideration: '(1) an intervening change in controlling law; (2) the availability of new
evidence; or (3) a need to correct a clear error of law or prevent manifest injustice.'" Shaughnessy
v. Garrett, No. 5:06-CV-103, 2011 WL 1213167, *1 (N.D.N.Y. Mar. 31, 2011) (citing Taormina
v. Int'l Bus. Machs. Corp., No. 1:04-CV-1508, 2006 WL 3717338, *1 (N.D.N.Y. Dec. 14, 2006)).
Courts have not outlined the precise contours of the "manifest injustice" that ought to be
prevented, see Oneida Indian Nation of New York v. Cty. of Oneida, 214 F.R.D. 83, 99 (N.D.N.Y.
2003), but "the Supreme Court has cautioned that 'as a rule courts should be loathe to [grant
motions to reconsider] in the absence of extraordinary circumstances,'" Niagara Mohawk Power
Corp. v Stone & Webster Eng'g Corp., No. 88-CV-819, 1992 WL 121726, *20 (N.D.N.Y. May
23, 1992) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988)).
In the present matter, the Court finds that Plaintiff fails to present any valid ground for
reconsideration. Plaintiff does not identify any specific argument that the Court did not consider
that would merit reexamining its original conclusion. Magistrate Judge Baxter's recommendation
to dismiss Plaintiff's action did not turn on the law library to which Plaintiff was referred, so
likewise does not compel reconsideration. Plaintiff suggests an amendment to the PLRA instead
of arguing, as he must, that the statute or controlling case law have already changed to cover his
circumstances. Plaintiff offers no evidence of widespread retaliatory behavior on the part of
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DOCCS employees, much less that it rendered the administrative grievance process unavailable.
And he gives no indication the Court's original conclusion was clearly erroneous, nearly
admitting as much when he writes that this Court "followed rules and procedures [in] judging this
case." Dkt. No. 28 at 2.
Finally, while Plaintiff feels aggrieved by the Court's earlier decision, Plaintiff does not
explicitly argue that the Court must reconsider its dismissal to avoid an obvious injustice. Even if
he did, the Court dismissed Plaintiff's claim without prejudice, leaving open another opportunity
for him to seek redress through the administrative process, or, if exhausted or proved unavailable
under the rule in Ross, 136 S. Ct. at 1859, by re-filing his Section 1983 complaint in a court of
competent jurisdiction.
Accordingly, the Court hereby
ORDERS that Plaintiff's motion for reconsideration is DENIED; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 3, 2019
Albany, New York

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