Kinlaw v. Walsh et al

Filing 69

DECISION & ORDER denying 54 Motion. For the reasons stated herein and in the Order, Plaintiff's Motion to reconsider the Order [#54] is respectfully denied. (Signed by Judge Richard M. Berman on 11/8/2011) (tro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ARTHUR KINLAW,
:
Plaintiff,
:
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- against :
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JAMES WALSH, et al.,
:
:
Defendants.
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I.
Background

10 Civ. 7539 (RMB)
DECISION & ORDER

By Decision and Order, dated May 18, 2011 (“Order”), the Court denied several
applications for preliminary injunction filed by pro se plaintiff Arthur Kinlaw (“Plaintiff”), in an
action against Brian Fischer, Commissioner of the New York State Department of Correctional
Services (“DOCS”); Theresa Knapp-David, Associate Commissioner of DOCS; James Walsh,
Superintendent of Sullivan Correctional Facility (“Sullivan”); Lynn Lilley, Deputy
Superintendent of Sullivan; Dr. Wladyolaw Sidorowicz, Facility Health Services Director of
Sullivan; Patrick Griffin, Superintendent of Southport Correctional Facility; Correctional Officer
Van Fuller, and Floyd Darbee, a nurse (collectively, “Defendants”). 1 In the Order, the Court
found, among other things, that Plaintiff failed to establish irreparable harm if he were not
transferred from Elmira Correctional Facility (“Elmira”) to Eastern Correctional Facility
(“Eastern”) as he had requested; that Plaintiff failed to establish irreparable harm if he were not
readmitted to the Elmira infirmary; and that Plaintiff failed to show that he was being “denied the
opportunity to participate in or benefit from Defendants’ services, programs, or activities.”

1

The record is unclear as to where Floyd Darbee is employed.

(Order at 4−6 (quoting Lighthall v. Vadlamudi, No. 04 Civ. 0721, 2006 WL 721568 at *19
(N.D.N.Y. Mar. 17, 2006)).)
On July 22, 2011, Plaintiff filed a motion for reconsideration, which we construe liberally
as a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (“FRCP”), arguing,
among other things, that (1) Defendants violated the Americans with Disabilities Act, 42 U.S.C.
§ 12101 (“ADA”) by housing Plaintiff at Elmira and by “continu[ing] to deny Plaintiff” his
“approved reasonable accommodation items”; (2) “Plaintiff was subjected to retaliatory
discharge from the Elmira infirmary”; and (3) Defendants’ counsel committed perjury when
responding to the injunction motion. (Pl.’s Mot. for Rec., dated June 22, 2011 (“Pl. Mem.”), at
2−3, 12, 16.)
On September 21, 2011, Defendants submitted an opposition arguing, among other
things, that (1) Plaintiff’s motion is untimely because “[it was] submitted to prison authorities for
mailing on June 26, 2011, well beyond the fourteen days after this Court’s May 18, 2011 Order,
permitted under Local Civ. R. 6.3, and beyond the twenty-eight days permitted under [FRCP]
Rule 59(e),” and (2) “Plaintiff has failed to submit any controlling legal decisions or new facts
that [the Court] may have overlooked.” (Defs.’ Opp’n to Mot. for Rec., dated Sept. 20, 2011
(“Defs. Opp’n”), at 2.)
On October 12, 2011, Plaintiff submitted a reply, arguing, among other things, that
Defendants “caused Plaintiff to file an untimely motion” because they engaged in “mail
tampering” and deprived him of “law library supplies . . . for weeks at a time.” (Pl. Ltr., dated
September 19, 2011, at 3.) Plaintiff did not respond to Defendants’ argument that he has failed
to submit any controlling legal decisions or new facts that the Court overlooked.
For the reasons set forth below, Plaintiff’s motion for reconsideration is denied.
2

II.

Legal Standard
A Rule 60(b) motion is granted only under “extraordinary circumstances,” or to prevent

“extreme and undue hardship.” DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994)
(quoting Matarese v. Le Fevre, 801 F.2d 98, 106 (2d Cir. 1986)). When evaluating a Rule 60(b)
motion, courts strive to “strike a balance between serving the ends of justice and preserving the
finality of judgments.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).
While a “pro se litigant[] should be afforded leeway,” LaGrande v. Key Bank Nat’l
Ass’n, 393 F. Supp. 2d. 213, 219 (S.D.N.Y. 2005), and “should not be impaired by harsh
application of technical rules,” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983), he or she is not
excused from producing “highly convincing evidence in support of [his or her] motion to vacate
a final judgment” under Fed. R. Civ. P. 60(b). Gwynn v. Deleo, No. 86 Civ. 1596, 1991 WL
125185, at *4 (S.D.N.Y. July 3, 1991) (quoting Kotlicky v. U.S. Fid. & Guar. Co., 817 F.2d 6, 9
(2d Cir. 1986)).
III.

Analysis
In deference to Plaintiff’s pro se status, the Court liberally construes Plaintiff’s motion

for reconsideration as a Rule 60(b) motion, as the time for a reconsideration motion has expired.
See e.g., Lora v. O’Heaney, 602 F.3d 106, 111 (2d Cir. 2010) (“An untimely motion for
reconsideration is treated as a Rule 60(b) motion.”)
Plaintiff fails to identify any controlling law or factual matters that the Court overlooked
in the Order or that might reasonably have altered the outcome as set forth in the Order. See
Painewebber Inc. v. Nwogugu, No. 98 Civ. 2441, 1999 WL 219908, at *1 (S.D.N.Y. Apr. 15,
1999) (“[H]aving failed to demonstrate an exceptional circumstance, or that there is an issue of
fact or law that controls the decision and which the Court has overlooked, [pro se defendant’s]
3

Rule 60(b) motion is denied.”); see also Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir.
1995). Nor does Plaintiff point to any mistake, fraud, or other reason that would warrant relief
under Rule 60(b).
The (unpersuasive) arguments presented in Plaintiff’s motion are largely duplicative of
the arguments previously submitted by Plaintiff in numerous written submissions to the Court.
See Muina v. Hous. Pres. & Dev., No. 91 Civ. 4154, 1995 WL 521037, at *1–2 (S.D.N.Y. Sept.
1, 1995). 2
(1) Disabilities
Recognizing Plaintiff’s legal blindness and mental health issues, Defendants persuasively
contend that resources at Elmira together with Plaintiff’s maximum security classification makes
his transfer to Eastern not in the public interest. (See Order at 4 (quoting Bellamy v. Mount
Vernon Hosp., No. 07 Civ. 1801, 2009 U.S. Dist. LEXIS 54141 at *5 (S.D.N.Y. June 26, 2009));
see also Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994). 3 No evidence, including letters
written by, among other people, Plaintiff’s primary care physician and the Deputy
Superintendent for Program Services at Elmira (Pl. Ltr., dated April 7, 2011, at 7; Pl. Ltr., dated
Oct. 5, 2011, at 25.), is presented that Defendants have violated the disability laws by continuing
to house Plaintiff at Elmira, nor has Plaintiff established that he was denied reasonable
accommodation, including the opportunity to participate in or benefit from Defendants’ services,
programs, or activities, or was otherwise discriminated against by Defendants, by reason of his

2

Any argument and/or claims not specifically discussed herein were considered by the
Court and rejected. See Weissman v. First UNUM Life Ins. Co., 44 F. Supp. 2d 512, 524
(S.D.N.Y. 1999).
3
‘It appears that ‘Plaintiff’s attached security classification is a ‘Max 01’ . . . which Elmira
falls under, whereas Eastern is classified at a ‘Max 2.’” (Order at 4 n.2 (quoting Defs. Ltr., dated
Apr. 21, 2011, at 1–3).)
4

medical and mental health issues. (See Order at 6 (quoting Lighthall v. Vadlamudi, No. 04 Civ.
0721, 2006 U.S. Dist. LEXIS 74734, at *19 (N.D.N.Y Feb. 6, 2006).)
In addition, according to the Office of Mental Health (“OMH”) Psychiatric Unit Chief at
Elmira, Dr. Katrina Kemerie, Eastern has fewer OMH programs and services than Elmira, and
Plaintiff engages productively with the OMH services Elmira offers. (Defs. Ltr., dated Apr. 21,
2011, at 3; Pl. Ltr., dated Oct. 5, 2011, at Ex. 35.) Plaintiff also receives accommodation(s) for
his vision, including large font written materials. (Pl. Ltr., dated Oct. 5, 2011, at 23.)
(2) Discharge from Elmira Infirmary
Plaintiff re-alleges (without any newly discovered support) that “he was subjected to
retaliatory discharge” from the Elmira infirmary. (Pl. Mem. at 12.) But several prison medical
officials, including Dr. Alves, Plaintiff’s primary care physician, confirm that Plaintiff was
discharged from the Elmira infirmary after being treated for a leg ulcer and being found
medically stable. (Def.s Ltr., dated Apr. 1, 2011, at 1). “[D]isagreement over medications,
diagnostics techniques, [or] forms of treatment, . . . are not adequate grounds for a 1983 claim.”
(Order at 5 (quoting Estelle v. Gramble, 429 U.S. 97, 106 (1976)); see also Arroyo v. Sturtz,
2009 U.S. Dist. LEXIS 90176, at*8 (N.D.N.Y Aug. 31, 2009) (A decision to discharge a patient
from a prison infirmary “implicate[s] medical judgment and not the Eight Amendment.”); Veloz
v. N.Y., 339 F. Supp. 2d 505, 525 (S.D.N.Y. 2004).
(3) Alleged Perjury
Plaintiff argues that, in a letter to the Court, dated April, 21, 2011, “[Defendants’
counsel] committed perjury when responding to the injunction motion” when Defendants
asserted that “there [were] no OMH letters in Plaintiff’s record recommending that he be
transferred to Eastern, nor would there be because Eastern has fewer OMH programs and
5

services than Elmira." (Mot. for Rec, dated July 22, 2011, at 3; Defs. Ltr., dated April 21, 2011,
at 2.) Defendants respond that Plaintiff is merely reiterating the arguments which were resolved
in the Order, (Order at 3-6), that Eastern would be better able to accommodate his legal
blindness than Elmira. "Plaintiff's disagreement with [D]efendants' position [does not]
constitute evidence of perjury." (Opp'n to Mot. for Rec. at 2.) Although some of the letters
submitted by Plaintiff state that there may be other correctional facilities that offer services that
would also suit Plaintiffs medical conditions, (PI. Ltr., dated Oct. 5,2011, at 25 ("If this facility
cannot meet your needs then you should be transferred to a facility where all of your needs can
be met."», none of them is authored by an OMH official. Defendant's counsel accurately stated
"there are no OMH letters in Plaintiffs records recommending that he be transferred to Eastern."
(Defs. Ltr., dated Apri121, 2011, at 3).

IV.

Conclusion and Order
For the reasons stated herein and in the Order, Plaintiffs Motion to reconsider the Order

[#54] is respectfully denied.

Dated: New York, New York
November 8, 2011

US DC SONY

RICHARD M. BERMAN, U.S.D.J.

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