Dublino v. Auburn Correctional Facility et al

Filing 70

SUMMARY ORDER: It is hereby ORDERED that Dublino's motion to vacate pursuant to Fed. R. Civ. P. 60(b) (Dkt. No. 60 ) is DENIED; and it is further ORDERED that the Clerk provide a copy of this Summary Order to the parties. Signed by Senior Judge Gary L. Sharpe on June 3, 2021. (Copy served via regular mail on plaintiff).(rep)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
MARK DUBLINO,
Plaintiff,

9:19-cv-381
(GLS/DJS)

v.
MR. SHEFTIC et al.,
Defendants.
________________________________
SUMMARY ORDER
Plaintiff pro se Mark Dublino commenced this civil rights action
pursuant to 42 U.S.C. § 1983, against defendants G. Schenk, Deputy
Superintendent of Auburn Correctional Facility (hereinafter “Auburn C.F.”);
Ms. Vanni, Steward at Auburn C.F.; Auburn C.F. correction officers Mr.
Sheftic, Sergeant, Mr. Carhart, Sergeant, and Mr. Vendetti; and several
other defendants that were dismissed in the early stages of this litigation.
(Compl., Dkt. No. 1; Dkt. No. 14.) Following initial review of the complaint,
the only remaining claims relate to the free flow of mail and alleged
retaliation with respect to attorney visits. (Dkt. No. 14 at 43.)
In a Summary Order dated March 31, 2020 (hereinafter, “the
Summary Order”), the court adopted Magistrate Judge Daniel J. Stewart’s

Report-Recommendation and Order (R&R), and dismissed this action
without prejudice based on Dublino’s failure to exhaust his administrative
remedies. (Dkt. Nos. 53, 58.) Now pending is Dublino’s motion to vacate
the Summary Order pursuant to Fed. R. Civ. 60(b). (Dkt. No. 60.) For the
reasons that follow, the motion is denied.
Rule 60(b) of the Federal Rules of Civil Procedure sets forth six
grounds upon which relief from a judgment or order may be granted:
(1)

mistake, inadvertence, surprise, or excusable
neglect;

(2)

newly discovered evidence that, with
reasonable diligence, could not have been
discovered in time to move for a new trial under
Rule 59(b);

(3)

fraud, misrepresentation, or misconduct;

(4)

the judgment is void;

(5)

the judgment has been satisfied, released, or
discharged; or

(6)

any other reason that justifies relief.

Rule 60(b) “provides extraordinary judicial relief which should be
granted only upon a showing of exceptional circumstances. It may not be
used as a substitute for an appeal, and a claim based on legal error alone

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is inadequate.” Mosquera v. Graham, No. 9:19-CV-0442, 2020 WL
1923237, at *1 (N.D.N.Y. Apr. 21, 2020) (internal quotation marks and
citations omitted). Courts generally “require that the evidence in support of
[a Rule 60(b)] motion . . . be highly convincing, that a party show good
cause for the failure to act sooner, and that no undue hardship be imposed
on other parties.” Id. (internal quotation marks and citation omitted). “The
decision whether to afford relief rests with the ‘sound discretion of the
district court.’” Id. (citation omitted).
Dublino moves to vacate the judgment rendered in the Summary
Order, arguing that the Second Circuit, in Hayes v. Dahlke, 976 F.3d 259
(2d Cir. 2020), “squarely rejected the exact reason this court dismissed the
claims.” (Dkt. No. 60 at 4.) Defendants argue that, while Hayes does
represent “a significant shift in the exhaustion landscape,” Dublino failed to
exhaust even in light of the same, and, thus, the motion to vacate should
be denied. (Dkt. No. 64 at 4-7.)
Two inmate grievances filed by Dublino pertain to the claims in this
action: Grievance AUB 75346-18 (hereinafter “the First Grievance”) relates
to a legal visit, and was filed in November 2018, and Grievance AUB
75805-19 (hereinafter “the Second Grievance”) relates to Dublino’s mail,
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and was filed in March 2019. (Dkt. No. 53 at 6-7.) In the Summary Order,
the court adopted the findings in the R&R that Dublino failed to exhaust his
administrative remedies with respect to both grievances, given that neither
grievance was decided by the Central Office Review Committee (CORC)
prior to commencement of this action. (Dkt. Nos. 53, 58.) In so holding,
the court rejected Dublino’s argument that the grievance process was
rendered unavailable by virtue of CORC’s failure to respond to his appeal.
(Id.)
At the time that the Summary Order was issued, district courts within
the Second Circuit “were divided as to whether, and when, delay by the
CORC in issuing a timely decision to a prisoner’s grievance renders
exhaustion unavailable.” Matagrano v. N.Y. State Dep’t of Corr. & Cmty.
Supervision, No. 9:19-CV-00763, 2020 WL 7338586, at *10 (N.D.N.Y. Dec.
14, 2020) (internal quotation marks and citation omitted). Subsequently,
the Second Circuit rendered its decision in Hayes, which definitively
resolved this issue, holding that:
[B]ecause the DOCCS Inmate Grievance Procedure
imposes a mandatory deadline for the CORC to
respond, an inmate exhausts administrative remedies
when he follows the procedure in its entirety but the
CORC fails to respond within the 30 days it is
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allocated under the regulations. We decline to
impose a “reasonableness” requirement found
nowhere in the text, which would leave inmates—and
courts—to blindly speculate how long one must wait
before filing suit.
976 F.3d at 270 (citations omitted). The Second Circuit made clear that
the thirty days begins to accrue from the time the appeal to CORC was
received. See id. at 264, 268, 271.
Here, CORC did not receive the First Grievance until March 4, 2019,
(Dkt. No. 28, Attach. 3 at 28), and, thus, it had until April 3, 2019 to render
a decision. And, as to the Second Grievance, Dublino did not even appeal
to CORC until April 24, 2019. (Dkt. No. 53 at 8-9.) As such, because the
complaint, which was mailed on March 20, 2019, (Dkt. No. 53 at 11), was
filed with the court on April 1, 2019, (Compl.), Dublino did not exhaust his
administrative remedies with respect to either grievance, even in light of
Hayes. See Hayes, 976 F.3d at 271 (“Hayes waited only 26 days after the
CORC received the appeal of his grievance against the superintendent,
four days short of the 30-day deadline for the CORC to respond. While
Hayes need not wait indefinitely after the agency fails to follow its own
deadline at the final stage of appeal, he must actually wait for that deadline
to expire before filing suit.” (citation omitted)).

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Accordingly, Dublino has not demonstrated the existence of any
“exceptional circumstances” that would warrant vacating the judgment
rendered in the Summary Order, and his motion is denied.
Accordingly, it is hereby
ORDERED that Dublino’s motion to vacate pursuant to Fed. R. Civ.
P. 60(b) (Dkt. No. 60) is DENIED; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
June 3, 2021
Albany, New York

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