Jimenez v. F.C.I. Otisville- Bureau of Prison et al

Filing 51

OPINION & ORDER re: 38 MOTION for Reconsideration re; 35 Memorandum & Opinion filed by Virgilio Jimenez. For the foregoing reasons, Plaintiff's motion for reconsideration is GRANTED. Plaintiff's Bivens claim against Defendant Sommer is reinstated. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 38. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 6/3/2016) Copies Mailed By Chambers. (mml)

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
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UNITED STA TES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DATE FILED:

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VIRGILIO JIMENEZ,
Plaintiff,
No. 14-cv-5166 (NSR)
OPINION & ORDER

-againstM.D. DIANE SOMMER, et al.,
Defendants.

NELSON S. ROMAN, United States District Judge
Plaintiff has moved for reconsideration of this Court's February 3, 2016 Opinion and
Order (the "Motion to Dismiss Opinion," ECF No. 35). (See ECF No. 38.) In particular,
Plaintiff seeks reconsideration of this Cou1t's determination to dismiss Plaintiffs Bivens claim
asserted against Defendant Sommer in light of the Supreme Court's holding in Jones v. Bock,
549 U.S. 199 (2007) (hereinafter, "Jones"). For the reasons that follow, Plaintiffs motion for
reconsideration is GRANTED.

LEGAL STANDARD
Motions for reconsideration are governed by Local Civil Rule 6.3 and Federal Rule of
Civil Procedure 60(b). "The standard for granting a motion for reconsideration pursuant to Local
Rule 6.3 is strict." Targwn v. Citrin Cooperman & Company, LLP, No. 12-cv-6909 (SAS), 2013
WL 6188339, at* 1 (S.D.N.Y. Nov. 25, 2013). Motions for reconsideration are "addressed to the
sound discretion of the district court and are generally granted only upon a showing of
exceptional circumstances." Mendell ex rel. Viacom, Inc. v. Go/lust, 909 F.2d 724, 731 (2d Cir.
1990). A motion to reconsider "is not a vehicle for ... presenting the case under new theories ..
. or otherwise taking a second bite at the apple." Analytical Surveys, Inc. v. Tonga Partners,

L.P., 684 F.3d 36, 52 (2d Cir. 2012) (quotation and citation omitted); see also Nat'/ Union Fire

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Ins. Co. of Pittsburgh, PA v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001) (quoting Polsby v. St.
Martin's Press, No. 97-cv-690 (MBM), 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000)
(Mukasey, J.) (in moving for reconsideration, “‘a party may not advance new facts, issues, or
arguments not previously presented to the Court.’”). They “‘will generally be denied unless the
moving party can point to controlling decisions or data that the court overlooked.’” Analytical
Surveys, 684 F.3d at 52 (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
Reconsideration of a Court's previous order is “an extraordinary remedy to be employed
sparingly in the interests of finality and conservation of scarce judicial resources.” In re Initial
Pub. Offering Sec. Litig, 399 F. Supp. 2d 298, 300 (S.D.N.Y. 2005) (internal citation and
quotation omitted), aff'd sub nom. Tenney v. Credit Suisse First Boston Corp., Nos. 05-cv-3430,
05-cv-4759, & 05-cv-4760, 2006 WL 1423785, at *1 (2d Cir. 2006).
DISCUSSION
As an initial matter, Defendants assert that Plaintiff’s motion for reconsideration should
be denied as untimely. Local Civil Rule 6.3 provides that a notice of motion for reconsideration
“shall be served within fourteen (14) days after entry of the Court’s determination of the original
motion . . . .” Here, Plaintiff’s motion was served 47 days after the Court issued the Motion to
Dismiss Opinion—well past the appropriate period to seek reconsideration. Nevertheless, the
Court finds that the interests of justice warrant the Court’s consideration of Plaintiff’s motion,
particularly in light of Defendants’ failure to alert the Court to case law adverse to their position.
Plaintiff contends that the Supreme Court’s decision in Jones warrants reconsideration of
Plaintiff’s Bivens claim against Defendant Sommer. In Jones, the Supreme Court held that “[t]he
level of detail necessary in a grievance to comply with the grievance procedures will vary from
system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that

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define the boundaries of proper exhaustion.” 549 U.S. at 218. Therefore, “exhaustion is not per
se inadequate simply because an individual later sued was not named in the grievances.” Id. at
219. Subsequently, the Second Circuit had the occasion to address the exhaustion requirements
of New York’s grievance procedures in Espinal v. Goord, 558 F.3d 119 (2d Cir. 2009). In
Espinal, the plaintiff filed a grievance alleging that he was beaten by two named officers and
“other countless security officers.” 558 F.3d at 122. The defendants challenged the sufficiency
of the grievance with respect to the unnamed officers; however, the Second Circuit determined
that since the plaintiff’s grievance “included the specific date, time, and location of the incident
about which he complained” and stated “that he was beaten for retaliatory reasons,” those
“allegations provided enough information to ‘“alert the prison to the nature of the wrong for
which redress [was] sought . . . .”’ 558 F.3d at 127 (quoting Johnson v. Testman, 380 F.3d 691,
697 (2d Cir. 2004) (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002))). Further, the
grievance enabled the prison to investigate and address the complaint. 558 F.3d at 127. Because
the “prison officials had the necessary information to investigate the complaints and the
opportunity to learn which officers were involved in the alleged incident,” the plaintiff’s
“grievance was sufficient to advance the ‘benefits of exhaustion.’” Id. (quoting Jones, 549 U.S.
at 219). 1
In the present case, even though Plaintiff’s prison grievance details only conduct
attributable to Defendant Baker, on reconsideration, it appears that the grievance was sufficient
to impart the necessary information on prison officials to investigate Plaintiff’s complaints and
learn about the involvement of Defendant Sommer. While the Bureau of Prison’s grievance
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In Jones, the Supreme Court “identified the benefits of exhaustion to include allowing a prison to address
complaints about the program it administers before being subjected to suit, reducing litigation to the extent
complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a
useful record.” 549 U.S. at 219.

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regulations do not require a prisoner’s grievance to specifically name all potential, future
defendants, the inmate must provide “requested identifying information.” 28 C.F.R. § 542.14(c).
Additionally, Form BP-8 directs a prisoner to detail the “specific issue needing resolution” and
asks that the prisoner “[e]xplain the issue in detail.” Here, Plaintiff’s prison grievance details
only the conduct of Defendant Baker, specifically, the alleged insufficiency of the medical
treatment she provided to Plaintiff. (ECF No. 35 at 8.) However, Plaintiff now brings to the
Court’s attention the prison warden’s response to Plaintiff’s grievance. (Plaintiff’s Reply
Memorandum of Law in Support of Motion for Reconsideration (“Reply”), ECF No. 50, at 7.)
In the warden’s response, he describes steps taken by the Clinical Director—Defendant
Sommer—to address Plaintiff’s medical issues. (ECF No. 26-2 at 2.) From the warden’s
response, it is evident that prison officials were aware of Defendant Sommer’s involvement in
Plaintiff’s medical treatment. While the Court is not of the opinion that in every instance in
which a prisoner grieves improper medical treatment that such a grievance should be interpreted
to sufficiently exhaust claims against all prison staff in the medical unit, including supervisors of
the medical unit, in this case, it appears that Plaintiff’s grievance equipped prison officials with
information sufficient to enable them to investigate Plaintiff’s complaints and learn of Defendant
Sommer’s involvement. Accordingly, Plaintiff’s Bivens claim against Defendant Sommer
should not have been dismissed on exhaustion grounds.

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CONCLUSION

For the foregoing reasons, Plaintiffs motion for reconsideration is GRANTED.
Plaintiffs Bivens claim against Defendant Sommer is reinstated. The Clerk of the Court is
respectfully directed to terminate the motion at ECF No. 38.

Dated:

SO ORDERED:

June}, 2016
White Plains, New York

United States District Judge

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