Wright v. City of New York et al

Filing 146

DECISION & ORDER: Defendants' 124 motion in limine is GRANTED IN PART and DENIED IN PART. Because a decision on the exhaustion issue must necessarily precede any further action in this case, the Court will conduct an evidentiary hearing on tha t issue on September 29, 2021 at 10:00 A.M. in US Courthouse, 2 Niagara Square, Buffalo, NY 14202-3350.Defendants' 128 motion to dismiss Defendants Koengismann, Post, and Misa is GRANTED as to Defendant Post and DENIED WITHOUT PREJUDICE as to Defendants Koengismann and Misa. Defendants may renew this motion as to Defendants Koengismann and Misa after the pretrial evidentiary hearing on administrative exhaustion. The Clerk of Court is directed to terminate Post from the caption of t his case.The parties' remaining pretrial motions, 123 , 125 , and 127 , are DENIED WITHOUT PREJUDICE. The parties may renew these motions after the pretrial evidentiary hearing on administrative exhaustion.SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 05/13/2021.(SFR)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LEDDARIUS WRIGHT,
Plaintiff,
v.

Case # 13-CV-563-FPG
DECISION AND ORDER

JACQUELYN LEVITT, M.D., et al.,
Defendants.
INTRODUCTION
On January 7, 2021, Defendant filed a motion in limine, ECF No. 124, seeking: (1) a
pretrial evidentiary hearing on the issue of whether Plaintiff exhausted his claim that Defendants
were medically indifferent for not referring him to a cochlear implant specialist; and (2) an order
precluding Plaintiff from proceeding with any claim that he suffered physical injury due to the
lack of a cochlear implant consultation. Plaintiff opposes this motion. ECF No. 129. On January
21, 2021, the Court held argument on Defendants’ motion for a hearing, ECF No. 124, and other
pending motions in limine, ECF Nos. 123, 125, 127, and 128, and reserved decision. ECF No. 136.
For the following reasons, Defendants’ motion in limine requesting a pretrial evidentiary
hearing, ECF No. 124, is GRANTED IN PART and DENIED IN PART. A hearing will be held
on September 29, 2021 at 10:00 A.M. in US Courthouse, 2 Niagara Square, Buffalo, NY 142023350. Defendants’ motion to dismiss Defendants Koengismann, Post, and Misa, ECF No. 128, is
GRANTED as to Defendant Post and DENIED WITHOUT PREJUDICE as to Defendants
Koengismann and Misa. The parties remaining pretrial motions, ECF Nos. 123, 125, and 127, are
DENIED WITHOUT PREJUDICE.

DISCUSSION
I.

Defendants’ Motion for a Pretrial Evidentiary Hearing
The Court assumes the parties’ familiarity with the underlying facts and the full record of

prior proceedings in this matter. On January 18, 2019, Defendants moved for summary judgment
arguing, inter alia, that Plaintiff had failed to sustain his burden of proving that the grievance
procedure was unavailable to him. ECF No. 83 at 2. On June 27, 2019, Magistrate Judge Hugh
Scott issued a Report and Recommendation (“R&R”) recommending denial of Defendants’
summary judgment motion, ECF No. 92, and, on February 25, 2020, District Judge Lawrence
Vilardo issued an order adopting Judge Scott’s R&R on de novo review, ECF No. 97. In that order,
Judge Vilardo found that Plaintiff’s evidence—that even the prison officials in charge of the
process for appealing a denial of medical care were “not sure as to the appropriate procedure”—
was sufficient “to create an issue of fact as to whether the ‘administrative scheme [is] so opaque
that . . . no ordinary prisoner [could] make sense of what it demands.’” ECF No. 97 at 6 (citing
Ross v. Blake, 136 S. Ct. 1850, 1859 (2016)). Defendants now move in limine for a pretrial
evidentiary hearing, arguing that the Court, rather than a jury, should decide that factual issue.
ECF No. 124-1 at 7-9.
In response, Plaintiff argues that the administrative exhaustion requirement does not apply
here because this case is not about “prison conditions.” ECF No. 129 at 2. Plaintiff did not raise
this legal argument at the summary judgment stage. See ECF No. 76. The Court declines to
consider it for the first time at this juncture but will consider this argument when it rules on the
administrative exhaustion issue. Plaintiff also argues that the Court should deny Defendants’
request for a pretrial evidentiary hearing because such a hearing “would be unreasonably

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burdensome to explore an issue that Defendants have shown no realistic chance of winning.” ECF
No. 129 at 4.
“[T]he Second Circuit has held that disputed facts do not convert exhaustion into a jury
issue.” Sims v. Ellis, No. 15-CV-6355-CJS, 2019 WL 4918048, at *6 (W.D.N.Y. Oct. 4, 2019)
(citations omitted). Indeed, where factual disputes “prevent the Court from deciding whether [a
plaintiff] exhausted his claims and/or whether the administrative remed[ies], although officially
on the books, were actually available to [the plaintiff],” those factual questions are “reserved for
the Court and not the jury.” Shepherd v. Fisher, No. 08-CV-9297 (RA), 2017 WL 666213, at *24
(S.D.N.Y. Feb. 16, 2017) (citations omitted). Accordingly, Defendants’ motion for a pretrial
evidentiary hearing on administrative exhaustion is GRANTED and the Court will schedule a
hearing for September 29, 2021 at 10:00 A.M.
II.

Defendants’ Motion to Limit the Scope of the Pretrial Evidentiary Hearing
Citing language from Judge Scott’s R&R, Defendants argue that the Court should limit the

pretrial evidentiary hearing to whether Plaintiff exhausted his deliberate indifference claim as to
the second request for cochlear implants. The Court declines to address the issue at this time and
Defendants’ motion to limit the scope of the pretrial evidentiary hearing on exhaustion is therefore
DENIED.
III.

Defendants’ Motion to Preclude Plaintiff from Maintaining an Action Based Upon
Alleged Beatings, Solitary Confinement, or Harsh Consequences Because of
Plaintiff’s Inability to Hear
Defendants request that Plaintiff be foreclosed from maintaining an action relating to

“beatings, isolation or the conditions of his confinement” because Plaintiff failed to grieve these
issues and thus failed to “put prison officials on notice of, [or] give them an opportunity to respond
to, the alleged issues.” ECF No. 124-1 at 13-14. In response, Plaintiff concedes that such incidents

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are not distinct claims for liability from his claim for deliberate indifference to his serious medical
needs, but rather are provable damages that resulted from said deliberate indifference. ECF No.
129 at 5. Defendants have cited no case law to support the proposition that the exhaustion
requirement applies to provable damages, as opposed to claims themselves. See ECF No. 124.
Defendants’ motion is DENIED.
IV.

The Parties’ Remaining Motions in Limine
Defendants have moved in limine to preclude Plaintiff from maintaining any claim against

Defendants Koenigsmann, Post and Misa. ECF No. 128-1 at 2. Plaintiff does not oppose the
dismissal of Defendant Susan Post. ECF No. 135 at 1. Defendants’ motion to dismiss Post is
therefore GRANTED and Plaintiff’s claims against Post are DISMISSED.
The parties’ remaining motions in limine, ECF Nos. 123, 125, 127, and 128, including the
request for dismissal of Defendants Koengismann and Misa, present issues related to trial, not
administrative exhaustion. These motions are therefore DENIED WITHOUT PREJUDICE and
the parties may renew and refile in advance of trial once the Court has held the pretrial evidentiary
hearing on administrative exhaustion.
CONCLUSION
For the foregoing reasons, Defendants’ motion in limine, ECF No. 124, is GRANTED IN
PART and DENIED IN PART. Because a decision on the exhaustion issue must necessarily
precede any further action in this case, the Court will conduct an evidentiary hearing on that issue
on September 29, 2021 at 10:00 A.M.
Defendants’ motion to dismiss Defendant Post is GRANTED and Plaintiff’s claims against
Post are DISMISSED. The Clerk of Court is directed to terminate Post from the caption of this
case.

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The parties’ remaining motions in limine, ECF Nos. 123, 125, 127, and 128, are DENIED
WITHOUT PREJUDICE. The parties may renew these motions after the pretrial evidentiary
hearing on administrative exhaustion.
IT IS SO ORDERED.
Dated: May 13, 2021
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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