Crichlow v. Fischer et al

Filing 178

ORDER granting 172 Motion for Reconsideration re 172 MOTION for Reconsideration. filed by Kevin Damion Crichlow, 177 MOTION to Vacate 171 Order of Dismissal, filed by Kevin Damion Crichlow ; granting 177 Motion to Vacate 172 MOTION for Reconsideration., 177 MOTION to Vacate 171 Order of Dismissal. Therefore, Plaintiff's motion to vacate the dismissal is GRANTED. The Clerk of the Court is respectfully directed to reopen the action as to Defendants Doc tor Ellen Youssef, Superintendent of Downstate John Doe, and Grievance Program Director John Doe. The parties are directed to appear for a telephonic status conference on December 3, 2021 at 3:00 PM. It is Defendants' responsibility to make prior arrangements with the appropriate facility to have Plaintiff participate via telephone. To access the telephonic conference, please follow these instructions: (1) Dial the meeting number: [phone]; (2) enter the Access Code: 1231334#; ( 3) press pound (#) to enter the conference as a guest. The Clerk of Court is directed to terminate the motions at ECF Nos. 172 & 177, mail a copy of this order to pro se Plaintiff at the address on ECF, mail a copy of this order to the New York State Attorney General's Office at 28 Liberty St. NY, NY 10005, and show service on the docket. (Signed by Judge Nelson Stephen Roman on 11/12/2021) (ate) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KEVIN CRICHLOW,

11/12/2021
Plaintiff,
12 cv 7774 (NSR)

-againstDR. ELLEN YOUSSEF, SUPERINTENDENT
OF DOWNSTATE JOHN DOE, and GRIEVANCE
PROGRAM DIRECTOR JOHN DOE,

ORDER

Defendants.
NELSON S. ROMÁN, United States District Judge:
Plaintiff Kevin Crichlow (“Plaintiff”) filed the instant action pro se on October 16, 2012
against approximately 120 parties connected to his incarceration in the custody of the New York
State Department of Corrections and Community Supervision (“DOCCS”), including Doctor Ellen
Youssef, Superintendent of Downstate John Doe, and Grievance Program Director John Doe
(collectively, “Defendants”). Plaintiff alleges a host of claims, including claims arising under 42
U.S.C. § 1983, for violations of the First, Fourth, Fifth, Sixth, Eight, and Fourteenth Amendments;
the Rehabilitation Act of 1973 and the Americans with Disabilities Act; 42 U.S.C. § 1981 and the
Thirteenth Amendment; 42 U.S.C. § 1985; and New York state law.
On April 28, 2015, the Court transferred the action to the United States District Court for
the Western District of New York. (ECF No. 168.) On March 16, 2017, United States District
Judge Elizabeth Wolford remanded the action back to this Court as to the three Defendants. (ECF
No. 169.) On May 19, 2021, this Court issued an Order to Show Cause directing Plaintiff to show
cause in writing on or before June 18, 2021 why his claims against Defendants should not be
dismissed. (ECF No. 170.) After receiving no response from Plaintiff, this Court issued an Order

dismissing the case without prejudice. (ECF No. 171.)
On July 21, 2021, the Court received a letter from Plaintiff purporting to be a motion for
reconsideration. (ECF No. 172.) The Court issued an endorsement directing Defendants to
respond to Plaintiff’s motion by August 5, 2021. (ECF No. 173.) Defendants did not respond.
On August 26, 2021, the Court issued an endorsement setting a briefing schedule for Plaintiff’s
motion to vacate the dismissal. (ECF No. 175.) On September 30, 2021, the Court received
Plaintiff’s motion to vacate the dismissal under Rule 60(b), which was unopposed. (ECF No. 177.)
Federal Rule of Civil Procedure 60(b) provides in pertinent part:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons: (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 by an
opposing party; (4) the judgment is void; (5) the judgment has been satisfied,
released or discharged; it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable; or (6) any other reason
that justifies relief.
Fed. R. Civ. P. 60(b). The Rule is supposed 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). As
the Second Circuit has cautioned Rule 60(b) provides “extraordinary judicial relief” to be granted
“only upon a showing of exceptional circumstances.” Id. at 61. The decision of whether to grant
or deny a motion for reconsideration is “within ‘the sound discretion of the district court.’”
Premium Sports Inc. v. Connell, No. 10 Civ. 3753(KBF), 2012 WL 2878085, at *1 (S.D.N.Y. July
11, 2012) (quoting Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009)). Generally, a party seeking
reconsideration must show either “an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.” In re Beacon Assoc.
Litig., 818 F. Supp. 2d 697, 701 (S.D.N.Y. 2011) (quoting Catskill Dev., L.L.C. v. Park Place

Entm’t Corp., 154 F. Supp. 2d 696, 701 (S.D.N.Y. 2001)).
Since “a default judgment is ‘the most severe sanction which the court may apply,’” when
“ruling on a motion to vacate a default judgment, all doubts must be resolved in favor of the party
seeking relief from the judgment in order to ensure that to the extent possible, disputes are resolved
on their merits.” New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005) (internal citations omitted).
Here, Plaintiff is currently incarcerated, and claims that he did not receive the Court’s May
19, 2021 Order to Show Cause. (ECF No. 172 at 1-2.) 1 The Court interprets this to be an argument
for excusable neglect under the statute. In a default judgment context, the Second Circuit has
outlined the following considerations in evaluating a motion seeking relief for excusable neglect:
“(1) whether the default was willful; (2) whether defendant has a meritorious defense; and (3) the
level of prejudice that may occur to the non-defaulting party if relief is granted.” American
Alliance Ins. Co., Ltd. v. Eagle Ins. Co., 92 F.3d 57, 59 (2d Cir. 1996)).
Here, the Court holds that Plaintiff’s claim that he never received the Court’s Order to
Show Cause is excusable neglect under Rule 60(b), and that granting the motion will prevent
manifest injustice. As all doubts must be resolved in his favor, the Court finds that Plaintiff did
not willfully fail to respond to the Order to Show Cause. Further, while there has been a long
period of time since this action was transferred back to this Court, Defendants have not shown that
they will be prejudiced by setting aside the default, as they failed to oppose Plaintiff’s motion.
Therefore, Plaintiff’s motion to vacate the dismissal is GRANTED. The Clerk of the Court
is respectfully directed to reopen the action as to Defendants Doctor Ellen Youssef, Superintendent
of Downstate John Doe, and Grievance Program Director John Doe. The parties are directed to

While Plaintiff makes this claim in his initial letter to the Court and not in his motion to vacate the
dismissal, the Court will still consider it as “the Second Circuit affords incarcerated pro se litigants particular
consideration with regard to complying with formalities.” Banks v. Annucci, 9:14-CV-340 (LEK/DEP), 2017 WL
4357464, at *3 (N.D.N.Y. Sept. 29, 2017).
1

appear for a telephonic status conference on December 3, 2021 at 3:00 PM. It is Defendants’
responsibility to make prior arrangements with the appropriate facility to have Plaintiff participate
via telephone. To access the telephonic conference, please follow these instructions: (1) Dial the
meeting number: [phone]; (2) enter the Access Code: 1231334#; (3) press pound (#) to
enter the conference as a guest.
The Clerk of Court is directed to terminate the motions at ECF Nos. 172 & 177, mail a
copy of this order to pro se Plaintiff at the address on ECF, mail a copy of this order to the New
York State Attorney General’s Office at 28 Liberty St. NY, NY 10005, and show service on the
docket.
Dated:

November 12, 2021
White Plains, New York

SO ORDERED:
________________________________
NELSON S. ROMÁN
United States District Judge