Toliver v. Colvin et al

Filing 108

DECISION AND ORDER ADOPTING 98 REPORT AND RECOMMENDATION DENYING defendants' 84 motion for summary judgment and adopting and affirming all objected-to-orders in the 98 R&R/D&O with the modification, as specified. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 2/8/2017. (CMD)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
MICHAEL TOLIVER,
Plaintiff,
DECISION AND ORDER
12-CV-227(LJV)(LGF)

v.
JOHN C. COLVIN et al.,
Defendants.
________________________________________

INTRODUCTION
This case, brought under 42 U.S.C. § 1983, was referred to United States
Magistrate Judge Leslie G. Foschio pursuant to 28 U.S.C. § 636(b)(1). On September
28, 2016, Judge Foschio addressed several pending motions in a combined Report and
Recommendation/Decision and Order (“R&R/D&O”). Docket Item 98. The plaintiff then
objected to Judge Foschio’s decision to revoke his in forma pauperis status. See
Docket Item 99 (plaintiff’s objections). And the defendants objected to Judge Foschio’s
recommendation that their motion for summary judgment, which argued that the plaintiff
had failed to exhaust his administrative remedies, be denied. See Docket Item 101
(defendants’ objections).
On November 9, 2016, this Court heard oral argument on the objections by both
sides and permitted the parties to make additional submissions. See Docket Item 104.
Both sides then submitted additional briefing. Docket Items 105 & 106. For the reasons
set forth below and in Judge Foschio’s R&R/D&O, this Court adopts Judge Foschio’s
recommendations and affirms his orders, as modified.

STANDARD OF REVIEW
With respect to dispositive matters, such as the defendants’ motion for summary
judgment, this Court “must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to” and “may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see 28 U.S.C. § 636(b)(1).
With respect to non-dipositive matters, this Court “may reconsider” a magistrate judge’s
decision only “where it has been shown that the magistrate judge’s order is clearly
erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see Fed. R. Civ. P. 72(a).
DISCUSSION
I.

Motion to Revoke In Forma Pauperis Status
The defendants filed a motion to revoke the plaintiff’s in forma pauperis status

“as improvidently granted” under 28 U.S.C. § 1915(g).1 Docket Item 57-1 at 1.
According to the defendants, the plaintiff had “accumulated over three strikes prior to
the filing of the Complaint in this case.” Id. The defendants then identified six specific
actions that, they argued, should be treated as “strikes” for the purposes of 28 U.S.C.
§ 1915(g). See Docket Item 57-1 at 3-4.
Judge Foschio agreed with the defendants on three of the alleged strikes. See
Docket Item 98 at 18-24. He therefore found that the plaintiff had “accumulated three

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28 U.S.C. § 1915(g) provides: “In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under this section if the prisoner has,
on 3 or more prior occasions, while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless
the prisoner is under imminent danger of serious physical injury.”
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strikes prior to commencing this action, requiring revocation of his IFP status.” Id. at 24.
Judge Foschio further ordered and recommended that this action
be stayed pending Plaintiff’s payment of the $350 filing fee no later than
forty-five (45) days of any order adopting this report and recommendation.
Should Plaintiff fail to pay the filing fee within the recommended forty-five
day period, the Clerk of the Court should be directed to dismiss the
Second Amended Complaint and to close the file.
Id. (emphasis in original, footnote omitted).
This Court has reviewed the plaintiff’s objections, which largely focus on whether
the three strikes that Judge Foschio relied on were, in fact, strikes. See Docket Item 99.
Under either a de novo or deferential standard, this Court agrees with Judge Foschio’s
analysis and declines to reject or reconsider Judge Foschio’s recommendation and
decision concerning the alleged strikes. This Court therefore adopts and affirms the
R&R/D&O to the extent that it finds that the plaintiff had three strikes and revokes his in
forma pauperis status.
This Court does, however, modify the R&R/D&O in one respect. In his
objections, the plaintiff claims to have been released from prison. Docket Item 99 at 2.
If that still is the case—that is, if the plaintiff no longer is a prisoner—and if the plaintiff
“can establish his eligibility for in forma pauperis status,” then “he, like any nonincarcerated litigant” who has established in forma pauperis status, “should be excused
from paying the filing fee.” Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010)2; see

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In Harris, the Second Circuit found “that a district court can invoke § 1915(g) to
dismiss a prisoner lawsuit” without prejudice, even if the prisoner since has been
released, so long as the prisoner is permitted to refile and either pay the filing fee or
apply for in forma pauperis status “like any non-incarcerated litigant.” 607 F.3d at 2324. This Court does not read Harris as requiring such a dismissal and refiling in all
cases, however, and especially not when the parties are four years into litigation. See
also Liner v. Fischer, 2014 WL 5438037, at *3 (S.D.N.Y. Oct. 27, 2014) (former-prisoner
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also McGann v. Comm’r, Soc. Sec. Admin., 96 F.3d 28, 30 (2d Cir. 1996) (upon
prisoner’s release, “his obligation to pay fees is to be determined, like any non-prisoner,
solely by whether he qualifies for i.f.p. status”). Therefore, this Court orders that unless
the plaintiff pays the $350.00 filing fee3 or, assuming he no longer is a prisoner, submits
a new application to proceed in forma pauperis4 within forty-five days of the date of this
order, the Second Amended Complaint will be dismissed and the Clerk of Court will
close the case.
II.

Motion for Summary Judgment
The defendants also moved for summary judgment, arguing that the plaintiff

failed to exhaust his available administrative remedies as required by 42 U.S.C.
§ 1997e(a). See Docket Item 84 and attachments. Judge Foschio recommended
denying the motion because “there exists a genuine issue of material fact as to whether
the [inmate grievance process procedures] were in reality available to permit Plaintiff to
exhaust administrative remedies prior to commencing this action.” Docket Item 98 at
32. Judge Foschio further recommended that, assuming the filing fee issue is resolved,
“an evidentiary hearing should be scheduled to resolve whether Plaintiff is excused from
properly exhausting administrative remedies.” Id. at 34.

plaintiff with three strikes “directed to pay the Court’s filing fee in full or to file an
amended IFP application” by certain date or the action would be dismissed).
3

As Judge Foschio noted, the $50 administrative fee is not required because the
plaintiff filed this action in 2012. See Docket Item 98 at 24 n.12.
4

Even without three strikes, it still would be appropriate to request updated information
from the plaintiff regarding his in forma pauperis status in this matter. Indeed, in his
earlier application to proceed in forma pauperis, the plaintiff answered most of the
questions on the Court’s form with some variation of “Not applicable[,] plaintiff is in
custody.” Docket Item 4 at 2 (¶ 10). As a result, this Court has almost no information
regarding the plaintiff’s ability to pay fees after his release.
4

The defendants’ objections focus on whether Judge Foschio erred by crediting
unsworn allegations in the Second Amended Complaint. See Docket Item 101 at 5-8.
The defendants argue that they are entitled to summary judgment because the plaintiff
“cited no evidence at all—other than his own unsworn allegations in the [Second
Amended Complaint]—in opposing Defendants’ Summary Judgment Motion.” Id. at 3.
According to the defendants, “[t]here are no sworn statements in the record attesting to
the validity of Plaintiff’s allegations in the [Second Amended Complaint].” Id. at 5.
The defendants, however, have ignored the sworn statements of the plaintiff that
appear elsewhere in the record, in which the plaintiff affirms, under penalty of perjury,
his allegations that administrative remedies were not available to him. See, e.g., Docket
Item 23 at 28, 32. In fact, the Second Amended Complaint—which seems to be the
culmination of a long struggle to condense the plaintiff’s various handwritten, pro se
filings into one set of allegations—is premised explicitly on those sworn statements.
See Docket Item 74 at 7 n.1 (“All facts derived from Plaintiff’s ProSe Amended
Complaint, Dkt. No.7 and Motion to file a Second Complaint, Dkt. Nos.22 &23. Further,
all quotes are cited and/or taken from said original ProSe filings.”). In other words,
although the Second Amended Complaint was not verified, many of the factual
statements in it were made under oath in other documents in the record. For that
reason, the defendants’ argument lacks merit. And, upon de novo review, this Court
agrees with Judge Foschio’s analysis and his conclusion that there is a genuine dispute
as to whether administrative remedies were available to the plaintiff. See generally
Ross v. Blake, 136 S. Ct. 1850, 1855 (2016) (“A prisoner need not exhaust remedies if
they are not ‘available.’”).

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Moreover, the docket reveals the tortured procedural history that apparently led
up to the filing of the Second Amended Complaint—something about which Judge
Foschio undoubtedly was aware when he cited the Second Amended Complaint in the
R&R/D&O. Unfortunately, neither side addressed that history—nor did they point out
that certain quotations in the Second Amended Complaint were taken from sworn
statements elsewhere in the record—when briefing the objections to the R&R/D&O.5
Given the nature of the defendants’ objections, which largely focus on whether the
Second Amended Complaint was or was not sworn, counsel should have addressed
these issues more candidly or more carefully.
This Court also has conducted a de novo review of the defendants’ remaining
objections, which also are without merit. On the issue of whether the Supreme Court
has rejected the “special circumstances” exception to exhaustion, the defendants are
correct. See Ross, 136 S. Ct. at 1858. Judge Foschio recited that exception and
discussed it in a footnote, but his reasoning in the R&R/D&O in no way relies upon it.
Instead, his recommendation is based on whether administrative procedures were
actually available, and—as noted above—this Court agrees with his analysis.
Accordingly, this Court adopts Judge Foschio’s recommendation, and defendants’
motion for summary judgment (Docket Item 84) is denied.

5

In response to the defendants’ primary argument, the plaintiff’s papers offered very
little. See, e.g. Docket Item 105 at 5. And at oral argument, the plaintiff’s counsel
stated that he thought the Second Amended Complaint was itself verified, which was
mistaken. Regardless, although this Court “‘is not required to consider what the parties
fail to point out” when ruling on a motion for summary judgment, “it may in its discretion
opt to ‘conduct an assiduous review of the record.’” Holtz v. Rockefeller & Co., 258
F.3d 62, 73 (2d Cir. 2001) (quoting Monahan v. N.Y. City Dep’t of Corrections, 214 F.3d
275, 292 (2d Cir. 2000)).
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III.

Defendants’ Request that Plaintiff’s Counsel Be Relieved
In their objections, the defendants also argue that Judge Foschio’s revocation of

the plaintiff’s in forma pauperis status renders the plaintiff “ineligible to receive court
appointed counsel.” Docket Item 101 at 4-5. Relying on Mills v. Fischer, 645 F.3d 176
(2d Cir. 2011), the defendants then ask that the plaintiff’s counsel “be relieved of their
representation in this matter.” Docket Item 101 at 5. But neither Mills nor 28 U.S.C.
§ 1915 provides any basis for this Court to grant that request.
Initially, Mills is distinguishable because it involved the denial of a pro se litigant’s
motion “for appointment of counsel.” Id. at 177. In the case at bar, by contrast, the
plaintiff’s counsel has been representing the plaintiff for more than two years. And
“[d]eciding whether to remove counsel after appointment, as distinguished from deciding
whether to initially appoint counsel, raises unique problems and concerns for a court.”
United States v. Zelenka, 112 F. Supp. 2d 708, 717 (M.D. Tenn. 1999) (applying
Criminal Justice Act, 18 U.S.C. § 3006A(c), under which court may “terminate the
appointment of counsel or authorize payment . . . as the interests of justice may dictate,”
and finding that terminating appointment of counsel would be unduly prejudicial).
What is more, no real “appointment” of counsel ever was at issue in this case—
or, for that matter, in Mills6—so the defendants have no legitimate interest in the relief
they are requesting. In criminal cases, such as Zelenka, supra, attorneys are paid with
public money to represent indigent defendants. For that reason, if an ostensibly
indigent defendant actually is able to afford counsel, the government has the right to

6

The Mills court even explained its colloquial use of the term “appointment” in a
footnote: “A district court is empowered only to ‘request’ an attorney to represent an
IFP plaintiff, § 1915(e)(1), but case law commonly refers to the arrangement as
‘appointed’ counsel.” 645 F.3d at 177 n.3.
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bring that to a court’s attention. See Zelenka, 112 F. Supp. 2d at 712 (“The Court notes
as an initial matter that the government has standing to bring this Motion. . . The
government always has the right, and indeed it is charged with the responsibility, of
bringing to the Court’s attention any possible misuse or waste of public funds.”). But
under 28 U.S.C. § 1915(e)(1), a court may only “request an attorney to represent any
person unable to afford counsel.” (emphasis added). “Section 1915 . . . does not
authorize reimbursement of appointed counsel for the expenses incurred in his
representation,” Moss v. ITT Cont’l Baking Co., 83 F.R.D. 624, 625 (E.D. Va. 1979), nor
does it empower courts to coerce unwilling attorneys into providing uncompensated
legal services, see Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296 (1989)
(distinguishing § 1915’s use of the “operative term . . . ‘request’” from “statutes
empowering courts to ‘assign’ or ‘appoint’”).
Thus, Judge Foschio made a “request” of the plaintiff’s counsel pursuant to
§ 1915(e)(1). They could have refused the request, but instead they agreed to
represent the plaintiff pro bono. Conceivably, they could have agreed to represent the
same client even in the absence of a request from the Court. And in the same way,
they can continue to represent that client, regardless of whether the Court’s request
actually was a mistake. If the plaintiff’s attorneys later seek to withdraw, they are free to
make the appropriate motion, assuming that it does not conflict with their ethical duties
to their client. The defendants, on the other hand, have no legitimate basis to interfere
in that relationship. Their request therefore is denied with prejudice.

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ORDER
For the reasons set forth above and in Judge Foschio’s R&R/D&O dated
September 28, 2016, the defendants’ motion for summary judgment (Docket Item 84) is
DENIED, and this Court adopts all recommendations and affirms all objected-to orders
in the R&R/D&O (Docket Item 98) with the following modification: Instead of the last
three sentences of the R&R/D&O, it is hereby
ORDERED that the plaintiff has until 45 days from the date of this Order to
pay the $350.00 filing fee or submit a new application to proceed in forma pauperis; if
the plaintiff does not do so, the action will be dismissed without further order of this
Court and the Clerk of Court will close the file; and it is further
ORDERED that if the plaintiff pays the $350.00 filing fee or submits a new
application to proceed in forma pauperis within 45 days of the date of this order, the
action will continue to be referred to Judge Foschio for all pretrial matters, pursuant to
28 U.S.C. § 636(b)(1), including conducting an evidentiary hearing on the issue of
exhaustion of administrative remedies.
IT IS SO ORDERED.
Dated:

February 8, 2017
Buffalo, New York

s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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