Calvert v. State of NY, et al
DECISION AND ORDER denying 82 Motion to Dismiss for Failure to State a Claim. Defendants motion [#82] to dismiss is denied, and the Courts prior Motion Scheduling Order [#83] is vacated. Nevertheless, in light of the fact that Plaintiff is now rel eased from prison, having served his maximum sentence, the Court sua sponte questions whether there is a good faith legal basis for him to maintain claims for injunctive relief. See, e.g., Pugh v. Goord, 571 F.Supp.2d 477, 489 (S.D.N.Y. 2008) (Where a prisoner has been released from prison, his claims for injunctive relief based on the conditions of his incarceration must be dismissed as moot.) (citations omitted). Accordingly, Plaintiffs counsel is directed to submit a letter, not exceeding fi ve pages, within 30 days of entry of this Decision and Order, explaining how there is a good faith basis for maintaining such claims. In the alternative, Plaintiff shall voluntarily discontinue such claims by that date. By separate order the Court will schedule this matter for trial. The appearance for oral argument that had been scheduled for July 12, 2012 is cancelled.Signed by Hon. Charles J. Siragusa on 6/26/12. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NORMAN B. CALVERT,
No. 02-CV-6194 CJS
-vsDECISION AND ORDER
THE STATE OF NEW YORK, et al.,
J. Michael Wood, Esq.
Oppenheimer & Greenfield LLP
Two State Street, 1600 Crossroads Building
Rochester, New York 14614-1397
Benjamin A. Bruce, A.A.G.
New York State Attorney General’s Office
Department of Law
144 Exchange Boulevard
Rochester, New York 14614
This is an action, pursuant to, inter alia, 42 U.S.C. § 1983, 42 U.S.C. § 1985(3),
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans With
Disabilities Act (“ADA”), 42 U.S.C. § 12132, brought by plaintiff Norman Calvert
(“Plaintiff”), who was formerly a prison inmate in the custody of the New York State
Department of Corrections and Community Supervision (“DOCCS”). Now before the
Court is Defendants’ Motion to dismiss and/or for judgment on the pleadings. (Docket No.
[#82]). The application is denied.
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The facts of this case were set forth in detail in the Court’s Decisions and Orders
[#78][#79] issued on September 24, 2009 and October 27, 2009, respectively. It is
sufficient to note that on March 11, 2008, Defendants filed a motion for summary
judgment [#52]. The motion was untimely, since a prior Scheduling Order [#45] had
directed that all dispositive motions be filed by January 11, 2008. Prior to that deadline,
Defendants had requested an extension of time to file a dispositive motion, because they
had not completed discovery. Not having received a ruling on their application for an
extension of time, Defendants nevertheless failed to file their summary judgment motion
by January 11, 2008. The Court later excused the late filing, considered the application
on its merits, and granted partial summary judgment. The surviving claims included
claims under the ADA, Section 504 and Section 1983 (First Amendment retaliation and
Fourteenth Amendment claims). Some of these claims included requests for injunctive
On May 30, 2010, Plaintiff was released from DOCCS’ custody. Sixteen months
later, on October 6, 2011, Defendants filed the subject dispositive motion, characterized
as a motion under FRCP § § 12(b)(6) and 12(c). Although the deadline for filing
dispositive motions had long passed, Defendants seem to indicate that their application
was warranted based upon a change of circumstances in the case, namely, Plaintiff’s
release from prison. See, Bruce Declaration [#82-1] ¶ 3; Memo of Law [#82-3] at p. 1.
The application indicates that the ADA and Section 504 claims, as well as any claims for
money damages concerning due process violations, lack merit. Additionally, the
application contends that any application for injunctive relief should be dismissed as moot,
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since Plaintiff is now released from prison.
On November 17, 2011, counsel appeared before the undersigned for a status
conference. The Court directed Defendants’ counsel to send a letter to the Court
explaining why the subject application [#82] should not be denied as untimely. The Court
directed Plaintiff’s counsel to respond to Defendants’ letter, and to indicate whether
Plaintiff was willing to discontinue his claims for injunctive relief. On November 28, 2011,
Defendants’ counsel submitted a letter indicating that Plaintiff’s release from prison
constituted good cause for Defendants to bring a motion against the claims for injunctive
relief. Defendants’ counsel further stated that, “[t]he other issues raised in the motion are
dispositive in nature but serve to clarify arguments previously made.” Bruce letter dated
November 28, 2011. On December 5, 2011, Plaintiff’s counsel responded [#85],
maintaining that Defendants had not shown good cause for bringing a late dispositive
motion. As for the portion of the motion directed at Plaintiff’s claims for injunctive relief,
Plaintiff further indicated that the motion was untimely, since Defendants had waited more
than a year after Plaintiff was released from prison before raising the issue of mootness.
In the alternative, Plaintiff asked for an opportunity to respond to Defendants’ motion.
FRCP 16(b)(4) states that a scheduling order “may be modified only for good
cause and with the judge’s consent.” Moreover, “‘good cause’ depends on the diligence
of the moving party.” Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 243 (2d Cir.
2007) (citations omitted). In this case, Defendants have not shown good cause for their
untimely motion. Specifically, there does not appear to be any good reason for making a
motion to dismiss the ADA, Section 504 or money damages claims related to due process
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violations, at this stage of the litigation. As for the injunctive relief claims, there probably
was good cause for bringing a motion to dismiss when Plaintiff was released from prison,
but Defendants were not diligent in making the motion. Accordingly, the application [#82]
Defendants’ motion [#82] to dismiss is denied, and the Court’s prior Motion
Scheduling Order [#83] is vacated. Nevertheless, in light of the fact that Plaintiff is now
released from prison, having served his maximum sentence, the Court sua sponte
questions whether there is a good faith legal basis for him to maintain claims for injunctive
relief. See, e.g., Pugh v. Goord, 571 F.Supp.2d 477, 489 (S.D.N.Y. 2008) (“Where a
prisoner has been released from prison, his claims for injunctive relief based on the
conditions of his incarceration must be dismissed as moot.”) (citations omitted).
Accordingly, Plaintiff’s counsel is directed to submit a letter, not exceeding five pages,
within 30 days of entry of this Decision and Order, explaining how there is a good faith
basis for maintaining such claims. In the alternative, Plaintiff shall voluntarily discontinue
such claims by that date. By separate order the Court will schedule this matter for trial.
The appearance for oral argument that had been scheduled for July 12, 2012 is cancelled.
Dated: Rochester, New York
June 26, 2012
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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