Morrison v. Hartman et al

Filing 98

ORDER denying defendants' 92 Motion to Dismiss. Signed by Hon. David G. Larimer on 6/25/13. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
PATRICK J. MORRISON,

Plaintiff,
DECISION AND ORDER
07-CV-6633L
v.
CORRECTIONAL OFFICER E. J. HARTMAN,
CORRECTIONAL OFFICER KOZLOWSKI,
CORRECTIONAL OFFICER KINGSLEY,

Defendants
________________________________________________
This is a pro se action under 42 U.S.C. § 1983, by Patrick Morrison, who was formerly an
inmate in the custody of the New York State Department of Correction and Community Supervision
(“DOCCS”). Defendants, all of whom were employees of DOCCS at the time of the relevant events,
have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. The ground for the motion is that plaintiff has not exhausted his administrative remedies,
as required by the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a).
This is not the first time that defendants have moved to dismiss the complaint in this action,
on this same ground. In March 2010, the Court denied defendants’ motion for summary judgment
on exhaustion grounds, 2010 WL 811319, and the Court did so again in October 2012. 898
F.Supp.2d 577. In the latter decision, I commented that defendants’ motion was “surprising,” since
the Court had previously rejected that same nonexhaustion argument. Id. at 581. I also stated that
defendants had not pointed to anything in the record “that call[ed] for a reexamination of the Court’s
earlier finding concerning this matter ... .”

Apparently heedless of this Court’s prior ruling that defendants were estopped from raising
failure to exhaust as a defense, 2010 WL 811319, at *3, and thinking that the third time might be the
charm, defendants have again moved against the complaint, this time advancing some arguments that
they failed to press earlier. Defendants’ motion papers, however, fail to show that any new evidence
has come to light, or that there has been an intervening change in the law since their prior motions
were decided. No reason is advanced as to why the present legal arguments could not have been
advanced in either of the two prior motions to dismiss. One cannot litigate piecemeal. I see no basis
for permitting defendants yet another bite at the apple, and their motion is denied.

CONCLUSION

Defendants’ motion for judgment on the pleadings (Dkt. #92) is denied.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
June 25, 2013.

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