Sioleski v. Fischer et al
Filing
48
ORDER denying 47 Plaintiff's Motion for Reconsideration with prejudice. (Copy of this Order sent by first class mail to the Plaintiff.) Signed by Hon. Michael A. Telesca on 8/24/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROBERT R. SIOLESKI,
No. 1:10-CV-0665(MAT)
DECISION AND ORDER
Plaintiff,
-vsLIEUTENANT (RET.) JUDD
SULLIVAN and J. ISAACS,
Defendants.
I.
Introduction
Pro se plaintiff Robert R. Sioleski (“PLaintiff”), an inmate
in the custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”), instituted this action against
Defendants pursuant to 42 U.S.C. § 1983. Plaintiff claimed that on
April 20, 2010, defendants harassed him about his Native American
hairstyle and placed him in keeplock for an hour while they
determined whether his hairstyle was in compliance with DOCCS’
rules.
Plaintiff
asserted
these
actions
violated
his
First
Amendment right to the free exercise of his religion. Plaintiff
also asserted that defendants filed a false misbehavior report
against him in retaliation for instituting this lawsuit.
On March 19, 2013, Defendants filed a Motion to Dismiss
(Dkt
Rules
#37)
Plaintiff’s
12(b)(1)
and
Third
12(b)(6)
Amended
of
the
Complaint
Federal
pursuant
Rules
of
to
Civil
Procedure. The Court (Skretny, D.J.) issued an Order (Dkt #40)
directing Plaintiff to file a response to Defendants’ Motion to
Dismiss by May 3, 2013, and stating that Plaintiff’s failure to
file and serve a timely response “may result in this Court granting
Defendants’ motion as uncontested pursuant to Local Rule 7(a)(2)(A)
or dismissing Plaintiff’s case for failure to prosecute.” Dkt #40.
The matter was transferred to the undersigned on August 16, 2013
(Dkt #41).
The due date specified in Judge Skretny’s Order passed without
Plaintiff filing a responsive pleading or requesting an extension
of time in which to file a response. This Court issued a Decision
and Order (Dkt #42) granting Defendants’ Motion to Dismiss as
uncontested pursuant to Local Rule 7(a)(2)(A), and dismissing
Plaintiff’s Third Amended Complaint in its entirety.
Plaintiff now has filed letter which was docketed as a Motion
for Reconsideration (Dkt #47). Plaintiff states that he seeks
“reargument” of his case and that this is his “second try to have
certain birth rights granted by the Court so while incarcerated” he
can “have [his] Native American hairstyle (mullet) [and] also
smudged sage/sweetgrass. . . .”
Dkt #47 at 1. Defendants have not
responded to the Motion for Reconsideration. For the reasons
discussed below, Plaintiff’s Motion for Reconsideration is denied.
II.
Discussion
The
rule
under
which
Plaintiff
seeks
reconsideration
is
unclear, but because his motion was not served within 28 days after
the entry of the Court’s determination of the original motion, the
Court
will
treat
the
reconsideration
motion
as
filed
under
Rule 60(b), rather than Rule 59(e), of the Federal Rules of Civil
Procedure. See, e.g., Ross v. Cooper, No. 90 Civ. 304(PGG), 2008 WL
5062727, at *2 (S.D.N.Y. Nov. 24, 2008)(treating pro se plaintiff’s
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reconsideration motion as filed pursuant to Rule 60(b) rather than
former Rule 59(e), where reconsideration motion was filed more than
ten days after entry of court’s determination of original motion)
(citing Briller v. Barnhart, No. 04 Civ. 3649(RWS), 2006 WL 118367,
at *1 n. 1 (S.D.N.Y. Jan. 16, 2006) (same)).
The Second Circuit has explained that Rule 60(b) “should be
broadly construed to do ‘substantial justice,’ yet final judgments
should not ‘be lightly reopened.’” Nemaizer v. Baker, 793 F.2d 58,
61 (2d Cir. 1986) (internal and other quotation and citations
omitted).
Further,
because
Rule
60(b)
permits
“extraordinary
judicial relief, it is invoked only upon a showing of exceptional
circumstances.” Id. (citations omitted).
Pursuant to Rule 60(b), “[o]n motion and just terms, a court
may relieve a party or its legal representative from a final
judgment, order, or proceeding” for any of 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 (whether previously called intrinsic or
extrinsic), 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). Plaintiff does not specify any of these
reasons as a basis for this Court to reconsider its Decision and
Order granting Defendants’ motion to dismiss.
-3-
Assuming Plaintiff had cited one or more of the first three
subsections under Rule 60(b), the instant motion fails because it
is untimely: “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.” FED. R. CIV. P. 60(c). Here, more than a year elapsed
since the entry of the August 27, 2013 order granting dismissal and
Plaintiff’s
February
11,
2015
motion
for
reconsideration.
Therefore, Rule 60(b)(1), (2), and (3) cannot provide a basis for
relief because Plaintiff’s motion was not filed within the one-year
time limit applicable to those subsections.
Rule 60(b)(4) is inapplicable. See Grace v. Bank Leumi Trust
Co. of N.Y., 443 F.3d 180, 193 (2d Cir.2006) (“A judgment is void
under Rule 60(b)(4) of the Federal Rules of Civil Procedure ‘only
if the court that rendered it lacked jurisdiction of the subject
matter, or of the parties, or if it acted in a manner inconsistent
with due process of law.’”) (quotation omitted). Rule 60(b)(5) is
also inapplicable to this case because the judgment has not “been
satisfied, released or discharged[,]” id., is not “based on an
earlier judgment that has been reversed or vacated,” id., and this
is not a situation where “applying it prospectively is no longer
equitable,” id.
Rule
60(b)(6),
the
catch-all
provision,
permits
reconsideration for “any other reason that justifies relief.” FED.
R. CIV. P. 60(b)(6). “It is well established, however, that a
‘proper case’ for Rule 60(b) relief is only one of ‘extraordinary
-4-
circumstances,’ or ‘extreme hardship.’” United States v. Cirami,
563 F.2d 26, 32 (2d Cir. 1977) (quotation omitted).
Plaintiff states that DOCCS’ employees “always want some kind
of proof” of his Native American heritage when he seeks to purchase
smudged sage/sweetgrass and to maintain his hair in a traditional
Native American hairstyle, and that it “gets to the point of
harassment.”
Dkt
#47
at
1.
To
the
extent
that
Plaintiff
is
attempting to demonstrate “extraordinary circumstances” or “extreme
hardship”,
his
allegations
pertain
to
the
substance
of
his
discriminatory treatment claims in his Third Amended Complaint,
which the Court dismissed without reaching the merits due to his
failure to comply with a Court order directing the filing of
opposition papers. Since the Decision and Order that Plaintiff
seeks to vacate did not decide the merits of his claim, the Court
finds that these allegations arguably are irrelevant to the present
motion
and,
in
any
event,
do
not
constitute
“extraordinary
circumstances” or “extreme hardship” as a matter of law. See, e.g.,
Broadway v. City of N.Y., No. 96 Civ. 2798(RPP), 2003 WL 21209635,
at *4 (S.D.N.Y. May 21, 2003) (holding that pro se plaintiff who
had been “in and out of the hospital, suffering from a mental
condition
and
in
and
out
of
prison”
had
not
demonstrated
“extraordinary” circumstances that would warrant reconsideration
under Rule 60(b)(6)).
Plaintiff
has
not
attempted
to
show
that
“extraordinary
circumstances” or “extreme hardship” prevented him from contesting
Defendants’ motion to dismiss, and therefore he has not provided
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the Court with any basis under Rule 60(b)(6) to vacate its order
dismissing the Third Amended Complaint pursuant to Local Rule
7(a)(2)(A). Finally, “[t]he “extraordinary circumstances” required
for relief under Rule 60(b)(6) must also suggest that the moving
party ‘is faultless in the delay.’” Orix Fin. Servs., Inc. v.
Thunder Ridge Energy, Inc.,
579 F. Supp.2d 498, 512 (S.D.N.Y.
2008) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 393 (1993)), vacated on other grounds, 369 F.
App’x 174 (2d Cir. 2010). There is no such suggestion on the record
here.
III. Conclusion
For
the
foregoing
reasons,
Plaintiff’s
Motion
Reconsideration (Dkt #47) is denied with prejudice.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
August 24, 2015
Rochester, New York
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for
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