Ewers v. City Of New York et al

Filing 165

MEMORANDUM AND ORDER denying 147 Motion to Alter Judgment re: 147 MOTION to Alter Judgment Rule 60(b)(2) and (3). Ewers's motion for relief under Rule 60(b) is meritless and therefore denied. The Clerk of the Court is respectfully directed to terminate docket number 147. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 2/9/2023) (mml) Modified on 2/9/2023 (mml).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------X
ALTURA ST. MICHAEL EWERS,
Plaintiff,
MEMORANDUM AND ORDER
- against -

17 Civ. 1116 (NRB)

CITY OF NEW YORK, NEW YORK CITY DEPARTMENT
OF CORRECTION OFFICERS ALEXIS GOODRIDGE,
NATHALIE MENDOZA, MICHAEL HAYWOOD, CAPTAIN
ROBERT DIAZ, JOHN AND JANE DOE CORRECTION
OFFICERS
#1-5,
CORIZON
HEALTH,
INC.,
CORRECTION OFFICER NATHALIE MENDOZA, and
JOHN AND JANE DOE MEDICAL PROVIDERS #6-10,
Defendants.
-------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

Plaintiff Altura St. Michael Ewers (“Ewers” or “plaintiff”)
initiated this § 1983 lawsuit in 2017 against the City of New York
and New York City Department of Correction Officers Alexis Goodridge
(“Goodridge”),
(“Haywood”),

Nathalie

Captain

Mendoza

Robert

Diaz

(“Mendoza”),
(“Diaz”),

Michael

John

and

Haywood
Jane

Doe

Correction Officers #1-5, Corizon Health, Inc. (“Corizon”), and John
and Jane Joe Medical Providers #6-10, seeking damages for defendants’
alleged failure to protect plaintiff and for indifference to injuries
plaintiff sustained at the hands of a fellow inmate on November 23,
2014 while he was incarcerated at Rikers Island Correctional Facility
(“Rikers Island”).

ECF No. 1.

On May 28, 2021, this Court granted

defendants’ motion for summary judgment in its entirety.
1

Ewers v.

City of New York, No. 17-cv-1116 (NRB), 2021 WL 2188128 (S.D.N.Y.
May 28, 2021), appeal dismissed No. 21-1563 (2d Cir. Jan. 10, 2022).1
On May 13, 2022, Ewers filed a motion for partial relief from that
judgment under Rule 60(b)(2) and (3) of the Federal Rules of Civil
Procedure

on

grounds

of

newly

discovered

misrepresentation, or other misconduct.

evidence

ECF No. 147.2

and

fraud,

Plaintiff

also requested oral argument, ECF No. 158, which we held on January
12, 2023 (the “Oral Argument,” or “Tr. ____.”).

For the reasons

that follow, Ewers’s motion is denied.
I.

BACKGROUND

We assume familiarity with the facts of the case and only
provide the background relevant to decide this motion.
Plaintiff was an inmate at the George Motchan Detention Center
on Rikers Island while facing charges of grand larceny, money
laundering, and falsifying business records in the New York State
Supreme Court.

Def’s. Rule 56.1 Statement, ECF No. 127 (“56.1

Statement”) ¶¶ 3-4.3

1

For the first two-and-a-half years of this case, plaintiff was represented by
attorneys Carmen S. Giordano and Stephanie Behler of Giordano Law Offices PLLC.
Ewers, 2021 WL 2188128, at *3.
However, following document discovery and
depositions, plaintiff’s counsel moved to withdraw, ECF No. 86, which motion we
granted on December 12, 2019 after an exchange of submissions and plaintiff’s
failure to communicate with the Court for months and attend a hearing on counsel’s
motion. ECF No. 104. Plaintiff therefore appeared pro se in opposing defendants’
summary judgment motion, and we afforded him “special solicitude” in deciding that
motion. Ewers, 2021 WL 2188128, at *3.
2

With respect to the instant motion, Ewers is represented by Nathaniel Akerman
of the Law Office of Nathaniel Akerman.

3

On December 18, 2014, plaintiff pled guilty to charges of grand larceny, money
laundering, and falsifying business records in New York State Supreme Court, and
though he later moved to withdraw his plea in January of 2015, the New York State
Supreme Court denied his motion.
Id. ¶ 32; Notice of Motion to Withdraw Plea,

2

On November 23, 2014, Ewers and another inmate at Rikers Island,
Charles Hamilton (“Hamilton”), had a verbal disagreement.
Statement ¶¶ 10-11.

56.1

Several minutes later, Hamilton ran over to

plaintiff and punched him in the facial area.

Id. ¶ 13.

Officer

Goodridge yelled at Hamilton to stop as he saw Hamilton running
towards Ewers and arrived “within seconds” to break up the fight.
Id. ¶¶ 15-16.

Plaintiff received continuous treatment at Rikers

Island throughout the day, id. ¶¶ 19-20; was transferred to Bellevue
Hospital that night, id. ¶ 20; and was treated at the Rikers Island
medical clinic nine times over the following 30 days.

Id. ¶ 23.

Ewers filed an initial complaint in the instant matter on
February 14, 2017; shortly thereafter filed an amended complaint on
February 28, 2017; and then filed a second amended complaint -- the
operative complaint -- on July 18, 2017, asserting several claims
stemming from the November 23, 2014 incident.

ECF Nos. 1, 11, 39.

Specifically, plaintiff brought failure to protect and deliberate
indifference to a serious medical need claims against Officers
Goodridge, Mendoza, Haywood, and Diaz (together, the “Correction
Officer Defendants”), as well as against John and Jane Doe Correction
Officers #1-5; a claim of deliberate indifference to a serious
medical need against Corizon and John and Jane Doe Medical Providers
#6-10 (together, the “Medical Provider Defendants”); a Monell claim

at 5, ECF No. 134-1; Decision & Order, Ind. #73/14, Feb. 17, 2015. A few months
later, in a parallel SEC action in the Southern District of New York, plaintiff
signed a Consent to the Entry of Final Judgment, admitting to the conduct to which
he pled guilty in state court and agreeing to a civil penalty of $361,492.99. SEC
v. Lawrence E. Penn, et al., No. 14-cv-0581, ECF No. 105 (S.D.N.Y. Dec. 11, 2015).

3

alleging unconstitutional practices and policies against the City of
New York; and state law claims of negligence, intentional infliction
of

emotional

distress,

and

against all defendants.

negligent

training

and

supervision

Ewers, 2021 WL 2188128, at *1.

Following the close of discovery, defendants moved for summary
judgment on September 9, 2020; plaintiff opposed the motion on
November 13, 2020; and defendants filed a reply on November 30, 2020.
ECF Nos. 124, 132, 136.
For a myriad of reasons, the Court granted defendants’ motion
in its entirety on May 28, 2021.

Ewers, 2021 WL 2188128.

Notably,

we held that Ewers’s claim that defendants failed to protect him
prior to the incident could not succeed on the merits -- regardless
of whether he filed any grievances or made any oral complaints to
prison officials -- because he did “not provide[] any evidence that
he and Hamilton engaged in prior physical altercations that should
have indicated . . . that there was an unreasonable risk of serious
harm

to

plaintiff.”

Ewers,

quotation marks omitted).
that

there

was

no

2021

WL

2188128,

at

*6

(internal

Focusing on the incident itself, we found

evidence

that

any

prison

official

requirement of acting “recklessly toward plaintiff.”

met

the

Id. at *7.

In addition, we found that defendants “made a prima facie
showing that plaintiff never filed written grievances or, at a
minimum, that no individual defendant was aware of any written
grievance” prior to the incident.
five

New

York

City

Id. at *5.

Department

of
4

Defendants submitted

Correction

Interdepartmental

Memoranda

in

support,

which

detailed

its

officers’

exhaustive,

unsuccessful searches for written grievances filed by plaintiff.
See 56.1 Statement ¶¶ 24-25; ECF No. 125-8; Ewers, 2021 WL 2188128,
at *5.

One such memorandum was authored by Pauline P. Mimms, at the

time a Rikers Island Inmate Grievance and Request Program (“IGRP”)
Supervisor.

ECF No. 125-8.

By contrast, plaintiff presented

“entirely inconsistent testimony regarding the filing of written
grievances against Hamilton.”

Ewers, 2021 WL 2188128, at *5-7

(detailing the discrepancies in Ewers’s testimony).

It is also

unchallenged that plaintiff failed to produce a copy of any grievance
he filed and could not name anyone who witnessed him filing a
grievance.

56.1 Statement ¶ 25.4

Plaintiff filed a pro se notice of appeal on June 26, 2021, ECF
No. 142, and his appeal was dismissed on January 25, 2022 for failure
to perfect, ECF No. 145.
On May 13, 2022, plaintiff, now represented by Mr. Akerman,
filed the instant motion under Fed. R. Civ. P. 60(b)(2) and (3),
seeking relief from the Court’s summary judgment order on Ewers’s
failure to protect claim.5

The predicate for Ewers’s motion is a

4

The Court further concluded that support for plaintiff’s claim that he complained
orally to prison officials was both inconsistent and insufficient as a matter of
law to trigger a failure to protect claim. Ewers, 2021 WL 2188128, at *6. Although
a fellow inmate, Arun Ganguly (“Ganguly”), testified that he witnessed plaintiff
complain orally to correction officers about threats from Hamilton at least six
times, Ganguly could not recall any of the names of the correction officers to
whom plaintiff orally complained other than Officer Haywood. Deposition of Arun
Ganguly at 65-67, ECF No. 134-2.
5

See Plaintiff’s Memorandum of Law in Support of His Motion for Partial Relief
from a Final Judgment, ECF No. 157 (“Pl. Br.”); Declaration of Nathaniel H. Akerman
in Support of Plaintiff’s Motion, ECF No. 155 (“Akerman Decl.”). Defendants filed

5

declaration authored by William M. Evans –- a former inmate who was
incarcerated at Rikers Island between September 2009 and August 2010.
Akerman Decl. ¶ 10; Declaration of William M. Evans, ECF No. 156
(“Evans Decl.”) ¶ 8.

Mr. Evans states that he was assigned to work

in the IGRP for two months in 2010, during which time he witnessed
Pauline P. Mimms “ripping up [detainee] grievances and disposing of
them in the trash” “on a regular basis.”

Evans Decl. ¶¶ 9-10.

Plaintiff argues that Mr. Evans’s declaration could lead to “direct
corroboration of Ewers’ deposition testimony and claim that, prior
to the assault perpetrated by Hamilton, Ewers had submitted multiple
grievances in the Rikers grievance box complaining of the threats on
his life from inmate Hamilton.”

Pl. Br. at 1.

Ewers therefore asks

the Court to relieve him from its final judgment “for the limited
purpose of pursuing discovery to determine whether Ms. Mimms had
continued her pattern of destroying inmate grievances to include the
grievances filed by Ewers” in 2014.
II.

Id. at 2.

LEGAL STANDARD

Ewers moves under two sections of Rule 60(b) -- (b)(2) and
(b)(3) -- pursuant to which the Court may relieve a party from final
judgment

on

grounds

of:

“newly

discovered

evidence

that,

with

reasonable diligence, could not have been discovered in time to move
for a new trial under Rule 59(b)”; and “fraud (whether previously

a Memorandum of Law in Opposition on July 8, 2022, ECF No. 161 (“Def. Opp.”), and
plaintiff filed his Reply on July 20, 2022, ECF No. 162 (“Pl. Reply”), along with
a Reply Affidavit, ECF No. 163.

6

called intrinsic or extrinsic), misrepresentation, or misconduct by
an opposing party.”

Fed. R. Civ. P. 60(b)(2), (3).6

Rule 60(b) grants a court the discretion to relieve a party
from a final judgment if “(1) the circumstances of the case present
grounds justifying relief and (2) the movant possesses a meritorious
claim in the first instance.”

Thomas v. City of New York, 293 F.R.D.

498, 503 (S.D.N.Y. 2013) (quoting Cobos v. Adelphi Univ., 179 F.R.D.
381, 385 (E.D.N.Y. 1998)).

However, relief is only warranted upon

a showing of “exceptional circumstances,” and the burden of proof is
on the party seeking relief.

See Motorola Credit Corp. v. Uzan, 561

F.3d 123, 126 (2d Cir. 2009) (quoting Ruotolo v. City of New York,
514 F.3d 184, 191 (2d Cir. 2008)).
III.

DISCUSSION

A. Meritorious Claim or Defense
Ewers’s motion fails at the outset, because he cannot satisfy
the precondition for Rule 60(b) relief: namely, that he has a
meritorious claim or defense.

See Davis v. Musler, 713 F.2d 907,

915–16 (2d Cir. 1983); Local 59 v. Superline Transp. Co., 953 F.2d
17, 20 (1st Cir. 1992) (the meritorious claim or defense requirement
“guards the gateway to Rule 60(b) relief”).7

6

As a preliminary matter, defendants do not contest that plaintiff’s motion was
made within a reasonable time. See Fed. R. Civ. P. 60(c)(1) (“A motion under Rule
60(b) must be made within a reasonable time — and for reasons (1), (2), and (3)
no more than a year after the entry of the judgment or order or the date of the
proceeding.”).
7

Here, “meritorious” does not mean that the moving party must show that he is
likely to prevail, but plaintiff must nonetheless make allegations that, if
established at trial, would constitute a valid claim or defense. See 12 Moore’s
Federal Practice § 60.24 (Matthew Bender 3d Ed.).

7

The
plaintiff’s

Court’s

summary

failure

to

judgment

protect

decision

claims

was

“fail[ed]

on

clear
the

that
law,”

regardless of whether Ewers had submitted written grievances or made
oral complaints regarding Hamilton.

Ewers, 2021 WL 2188128, at *6-

7 (internal quotation marks omitted).

In other words, our holding

that Ewers’s failure to protect claims lacked substantive merit was
wholly independent from whether he filed grievances prior to the
incident, and thus is certainly unaffected by Ms. Mimms’s alleged
destruction of Mr. Evans’s grievances in 2010.
Indeed, having never grounded our decision on the filing of
grievances, nothing plaintiff could learn from further discovery
would vitiate our determinations that he failed to show: (1) an
unreasonable risk of serious damage prior to the incident because
there was no history of physical altercations between Hamilton and
Ewers; or (2) that prison officials acted recklessly towards him
during the incident.

Id.

Accordingly, Ewers’s motion fails at the

threshold and must be denied.

See Beshear v. Weinzapfel, 474 F.2d

127, 132 (7th Cir. 1973) (party moving for relief under 60(b) “must
show facts which, if established, might reasonably be said to be a
basis for recovery”).8

8

In any event, plaintiff’s claims that he filed written grievances were shaky at
best. As we outlined in our summary judgment decision, plaintiff’s testimony was
“entirely inconsistent” regarding this very issue. See Ewers, 2021 WL 2188128,
at *5.
Likewise, plaintiff’s deposition testimony revealed that he never
specifically delivered a written grievance to an officer, nor did he identify any
officer who saw him place a grievance in the grievance box. See Deposition of
Ewers, ECF No. 125-3, at 113-14, 118.

8

B. Rule 60(b)(2)
Although the absence of a meritorious claim is sufficient to
deny Ewers’s motion, we also hold that he does not meet Rule
60(b)(2)’s requirements.
To obtain relief under Rule 60(b)(2), a movant must demonstrate
that:
(1) The newly discovered evidence was of facts that existed
at the time of trial or other dispositive proceeding, (2)
the movant must have been justifiably ignorant of them
despite due diligence, (3) the evidence must be admissible
and of such importance that it probably would have changed
the outcome, and (4) the evidence must not be merely
cumulative or impeaching.
United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir.
2001) (quoting United States v. Int’l Bhd. of Teamsters, 179 F.R.D.
444, 447 (S.D.N.Y. 1998)).

A motion pursuant to Rule 60(b)(2) is

disfavored and “properly granted only upon a showing of exceptional
circumstances.”

Teamsters, 247 F.3d at 391; accord United States ex

rel. Brutus Trading, LLC v. Standard Chartered Bank, No. 18-cv-11117
(PAE), 2021 WL 4772142, at *4 (S.D.N.Y. Oct. 13, 2021).
Plaintiff does not meet these specific requirements, because his
purported new “evidence” is (i) inadmissible; and (ii) would not
have likely changed the outcome of the Court’s summary judgment
decision.
i.
Ewers

Admissibility

presents

no

new

admissible

evidence

in

his

motion.

Rather, based on an inadmissible declaration, he asks the Court to
reopen discovery in the hopes that additional discovery may lead to
9

information related to Ewers.

See 12 Moore’s Federal Practice §

60.42(7) (Matthew Bender 3d Ed.) (“[C]ourts require newly discovered
evidence

to

be

‘material’

before

it

may

justify

relief

from

judgment.”); Fed. R. Evid. 401.
There is a chasm between Mr. Evans’s declaration and our summary
judgment decision.

First and foremost, Mr. Evans’s declaration

describes a single eyewitness account of events that took place over
a one-to-two-month period four years before Ewers was incarcerated,
seven years before he filed this case, and twelve years before the
filing of this motion.
Beyond these obvious gaps, the irrelevance of Mr. Evans’s
declaration was exposed by the discovery program plaintiff’s counsel
proposed during oral argument.

If the Court were to grant Ewers’s

application, he would seek: (1) a deposition of Pauline Mimms; (2)
an interrogatory request to the defendants to identify the names and
last known addresses of all inmates who worked in the grievance
office under Ms. Mimms during the period Ewers was incarcerated at
Rikers Island; (3) depositions of those inmates who worked in the
grievance office; (4) an interrogatory requesting other claims by
inmates

whose

grievances

have

been

destroyed;

and

(5)

an

interrogatory request to identify other cases brought against the
City where Pauline Mimms searched for grievances and attested none
existed.

See Tr. at 5-6.

“Limited” is not the proper adjective for

this additional discovery sought.

See Pl. Reply Br., at 2.

Rather,

Ewers’s expansive wish list simply demonstrates how far afield Mr.
10

Evans’s

declaration

admissibility.
ii.
Even

is

from

plaintiff’s

claims,

and

thus

from

See 12 Moore’s Federal Practice § 60.42.9
Change in Outcome

assuming,

arguendo,

that

plaintiff

presented

new

and

admissible evidence, Mr. Evans’s declaration does not meet another
60(b)(2) requirement, namely that it would likely change the outcome
of our summary judgment decision.

As discussed in the section above

on the precondition that plaintiff must establish a meritorious
claim, our summary judgment decision was based on legal conclusions
entirely independent of whether plaintiff filed written grievances.
Mr. Evans’s declaration is simply substantively irrelevant to the
outcome.
C. Rule 60(b)(3)
For

similar

reasons,

the

application under Rule 60(b)(3).
granted

absent

clear

and

Court

also

denies

plaintiff’s

“A Rule 60(b)(3) motion cannot be

convincing

evidence

of

material

misrepresentations and cannot serve as an attempt to relitigate the
merits.”

Fleming v. N.Y. Univ., 865 F.2d 478, 484 (2d. Cir. 1989).

Moreover, the evidence in support of plaintiff’s motion must be
“‘highly convincing.’”
Co., 817

F.2d

6,

9

Kotlicky v. United States Fidelity & Guar.
(2d

Cir.

1987)

(quoting United

States

v.

Cirami, 563 F.2d 26, 33 (2d Cir. 1977)).

9

Defendants also maintain that plaintiff’s purported new evidence is inadmissible
character evidence under Federal Rule of Evidence 404(b)(1). See Def. Br. at 56 n.3. Because the Court concludes that plaintiff’s new evidence is irrelevant
and would not have likely changed the outcome of our summary judgment order, we
need not address this argument.

11

Mr. Evans’s declaration does not present “highly convincing”
evidence in support of his motion.

To hold otherwise would require

assuming a fact not in evidence, i.e., that there is any link between
Mr. Evans’s eyewitness account in 2010 and Ewers’s incarceration in
2014.
Indeed, even the most charitable interpretation of Mr. Evans’s
declaration –- namely, that Ms. Mimms maintained a practice of
destroying inmate grievances for one-to-two months in 2010 -- is so
attenuated from this action that it could never meet Rule 60(b)(3)’s
exacting standards.

Plaintiff was incarcerated at Rikers Island in

2014, and Mr. Evans alleges no link between himself and Ewers in his
declaration, nor is there any evidence that Ewers’s grievances were
destroyed.

Rather, plaintiff asks this Court to make a considerable

number of logical leaps in the absence of any solid proof: because
Mr. Evans may have observed Ms. Mimms destroying some grievances
during the summer of 2010, she may have maintained a years-long
practice of doing so, which may have continued up until plaintiff’s
incarceration, and thus may have extended to destroying plaintiff’s
grievances.

We are unwilling to reopen discovery based on such

speculative grounds.

See Nemaizer v. Baker, 793 F.2d 58, 61 (2d

Cir. 1986) (noting that “final judgments should not be lightly
reopened”) (internal quotation marks omitted).
Accordingly, the Court concludes that the conduct complained of
in Ewers’s motion does not come close to reaching the “clear and
convincing evidence” threshold required by Rule 60(b)(3).
12

IV.

CONCLUSION

Ewers’s motion for relief under Rule 60(b) is meritless and
therefore denied.

The Clerk of the Court is respectfully directed

to terminate docket number 147.
SO ORDERED.
DATED:

New York, New York
February 9, 2023
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

13