DeLee v. Rossi et al
Filing
65
DECISION AND ORDER: For the reasons set forth in the attached Decision and Order, plaintiff DeLee's 61 motion for reconsideration of the Decision and Order issued on October 18, 2019 is denied. A copy of this Decision and Order along with this docket entry have been mailed to Maurice Larry DeLee, 07-B-0369, FRANKLIN CORRECTIONAL FACILITY, Box 10, Malone, NY 12953-0010. SO ORDERED. Signed by Hon. Richard J. Arcara on 11/5/2019. (LAS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MAURICE LARRY DeLEE,
Plaintiff,
DECISION AND ORDER
17-CV-448-A
v.
MR. RUSSO, et al.,
Defendants.
Plaintiff Maurice Larry DeLee has filed a pro se motion for reconsideration of an
October 18, 2019 Decision and Order dismissing his prisoner’s civil rights action
pursuant to 42 U.S.C. § 1997e(a) and Fed. R. Civ. P. 12(b)(6) because plaintiff DeLee
failed to exhausted administrative remedies before commencing the action. For the
reasons that follow, the motion is denied.
In his motion for reconsideration, plaintiff DeLee overlooks that the Court
explicitly dismissed the action without prejudice. See Dkt. Nos. 56, 57, and 61, p.1.
Accordingly, to the extent that the relief the plaintiff is seeking is the option to re-file
the action because his administrative remedies were exhausted after the case was
filed, the motion for reconsideration is moot. He can re-file.
Plaintiff DeLee argues that the Court should reconsider the October 18, 2019
Decision and Order because it “failed to address” that his administrative remedies
were exhausted after the action was filed. That is incorrect. See Dkt. No. 56, pp. 2-5.
The Court noted that plaintiff filed the case before his final administrative appeal was
due to be decided by the Central Office Review Committee, listed the steps plaintiff
took to exhaust his administrative remedies, and acknowledged that his final
administrative appeal was decided on or about June 13, 2018, which was more than a
year after the case was filed. Id.
Finally, none of the case law upon which plaintiff DeLee relies in his motion for
reconsideration supports his request that the Court excuse his failure to exhaust his
administrative remedies before filing this action. Plaintiff overlooks that the Supreme
Court’s decision in Ross v. Blake, 136 S.Ct. 1850 (2016), changed the applicable
standard under 42 U.S.C. § 1997e(a) and the “special circumstances test” for
excusing a prisoner’s failure timely to exhaust administrative remedies. The plaintiff
cites no controlling decision that the Court overlooked or misapprehended in
dismissing his action without prejudice, no intervening change in law, and the Court
therefore finds for all of the above reasons that plaintiff’s motion for reconsideration is
without merit. The motion for reconsideration (Dkt. No. 61) is therefore denied.
IT IS SO ORDERED.
_s/Richard J. Arcara________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: November 5, 2019
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