Harris v. Loverde et al
Filing
37
DECISION AND ORDER denying 30 Motion for Summary Judgment; denying 20 Motion for Summary Judgment; denying 21 Motion for Default Judgment. Defendants cross-motion for summary judgement is granted (Doc. No. 25), and Plaintiffs complaint (Doc. No. 1) is dismissed without prejudice.Signed by Hon. Charles J. Siragusa on 10/26/11. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MR. DAMECHA HARRIS 92-A-1389,
Plaintiff,
DECISION & ORDER
-vs08-CV-6069-CJS
MS. C. LOVERDE, et al.,
Defendants.
APPEARANCES
For Plaintiff:
Damecha Harris, pro se
92-A-1389
Coxsackie Correctional Facility
Post Office Box 999
West Coxsackie, NY 12051-0999
For Defendants:
Gary M. Levine, A.A.G.
New York State Attorney General’s Office
144 Exchange Boulevard, Suite 200
Rochester, NY 14614
INTRODUCTION
Siragusa, J. Pending before this Court are three motions filed by Plaintiff: a
motion for summary judgment (Doc. No. 20) filed on March 15, 2010; a motion for a
default judgment (Doc. No. 21) filed on May 13, 2010; and a second motion for
summary judgment (Doc. No. 30) filed on July 1, 2010. In addition, Defendants have
filed a cross-motion for summary judgment (Doc. No. 25), which is also pending. For the
reasons stated below, the Court grants Defendants’ cross-motion, and denies Plaintiff’s
two motions as moot.
BACKGROUND
The Court issued a briefing schedule with regard to Plaintiff’s first motion for
summary judgment (Doc. No. 20), and another with regard to his motion for default
judgment (Doc. No. 21). (Doc. No. 22.) The Court did not issue a scheduling order with
regard to Plaintiff’s second motion for summary judgment (Doc. No. 30). On July 6,
2010, the Court issued a briefing schedule for Defendants’ cross-motion for summary
judgment, setting a response date of July 23, 2010, and reply date of August 20, 2010.
(Doc. No. 29.) Defendants’ cross-motion included the notice required by local rule and
case law. (Doc. No. 26 “Irby Notice.”)
Plaintiff’s First Motion for Summary Judgment
In his first motion for summary judgment, Plaintiff contends that he is entitled to
judgment because, “the documents provided by the Defendants’ attorney under ‘Initial
Discovery,’ on or about August 31, 2009, clearly contradict the Defendants’ responses
of May 15, 2009, and Clearly support [sic] all of the allegations raised in the complaint.”
(Doc. No. 20, Harris Aff. ¶ 2.) Plaintiff contends that Defendants used “the pretext of a
cell search for the sole purpose of confiscating and reading plaintiff’s legal mail,” in
violation of his constitutional rights. (Id. ¶ 3.)
Defendants oppose this motion, arguing that Plaintiff failed to follow the
requirements of W.D.N.Y. Local Rule of Civil Procedure 56.1 and that Plaintiff’s
assertion, that Defendants’ Federal Rule of Civil Procedure 26 discovery and their
answer support his motion, “is incorrect.” (Doc. No. 25, Bove Decl., ¶ 7.)
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Plaintiff’s Motion for Default Judgment
Plaintiff moved for entry of a default judgment (Doc. No. 21) on May 13, 2010.
Unfortunately, the motion is difficult to read owing to Plaintiff’s handwriting. In his
motion, Plaintiff asks for entry of judgment “against all three of the defendants….” (Doc.
No. 21 at 1.) The basis for his request is his contention that Defendants,
fail[ed] to comply with the Court exigent imposed [sic] order of 05-07-10,
to file a[n] answer to the Plaintiff[‘s] Notice of Motion and Affirmation in
support for summary judgment, which none of the defendants addressed
or objected to the relief [illegible] within the time prescribed by law
imposed by this court order….
(Doc. No. 21 at 1.) Defendants responded to this motion by stating:
Plaintiff’s Motion for Default must be denied as the Court has extended
the deadline for filing dispositive Motions in this Action on February 16,
2010 to April 30, 2010 and on May 24, 2010 to June 30, 2001. Docket
Numbers 15 and 23. In addition the deadline for defendant’s Response
to plaintiff’s Motions has been set as June 30, 2010. Docket Number 24.
Unless there is an explicit deadline in a scheduling Order, it is the practice
of the Court to issue a scheduling Order setting the time frames for the
opposing party’s response. Defendants have complied with the Court’s
Orders. The scheduling order plaintiff is relying on was superseded by
subsequent orders.
(Doc. No. 25, Bove Decl., ¶ 8.)
Plaintiff’s Second Motion for Summary Judgment
On July 1, 2010, Plaintiff filed a second motion for summary judgment. (Doc. No.
30.) In that application, however, he simply opposed Defendants’ request for an
extension of time to respond to Plaintiff’s original summary judgment motion and asked
that the Court deny Defendants the opportunity to file papers in opposition to Plaintiff’s
original summary judgment motion. (Doc. No. 30 at 2–3.) He also repeated his argument
from the original summary judgment motion: that Defendants’ initial discovery provides
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the basis for granting him judgment and that none of the defendants is entitled to
qualified immunity. (Id. ¶¶ 5–6.) In particular, Plaintiff refers to what he identifies as
“Defendants[‘] Declaration of title part of paragraph [sic] 2, 5, as stated below….” (Id. ¶
8.) He then quotes the language as follows:
There is only one claim remaining in this action in the complaint filed on
February 15, 08 Docket # 1, to wit, that Plaintiff’s legal mail was
confiscated and read by defendants in November 2007 at Attica Corr.
Facility and Defendants do not object to the Relief Requested in
Plaintiff[‘]s motion, et al.
(Id.) Since Plaintiff did not specifically cite to the declaration from which he supposedly
quoted this language, the Court has searched the declaration of Emil Bove, Assistant
Attorney General (Doc. No. 25) and found the following language, which appears to
track closely, but not exactly, the language Plaintiff quoted:
Damecha Harris, 92-A-1389, commenced the instant Action on February
15, 2009 [sic]. In the claims in the Complaint dated December 31, 2007
remaining after the June 13, 2008 Order, plaintiff alleged that his right to
access to the Courts was denied in November 2007 at Attica Correctional
Facility when his legal mail was confiscated and read. Specifically, plaintiff
claims defendants improperly read mail from his attorney. Docket
Numbers 1 and 3.
(Doc. No. 25, Bove Decl., ¶ 2.) Mr. Bove’s declaration also contains this language:
The facts as to which there is no genuine issue demonstrate: (A) that the
letter from plaintiff’s attorney describing how the proceeds of a civil action
that had been settled were distributed to other inmates was confiscated
as evidence of misconduct from plaintiff’s cell after it had been delivered
to him; (B) the confiscation of the letter did not interfere with the type of
case that might give rise to a claim for denial of access; (C) plaintiff did
not suffer detriment to the case in question as a result of the interference;
and (D) plaintiff did not exhaust his administrative remedies concerning
this claim.
(Id. ¶ 5.)
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ANALYSIS
Defendants are correct in their contention that Plaintiff did not comply with the
local rule requiring a statement of facts in support of any motion seeking summary
judgment. That rule, 56(a)(1), reads as follows:
(a) Statements of Facts on Motion for Summary Judgment.
(1) Movant’s Statement. Upon any motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56,
there shall be annexed to the notice of motion a separate,
short, and concise statement, in numbered paragraphs, of
the material facts as to which the moving party contends
there is no genuine issue to be tried. Failure to submit such
a statement may constitute grounds for denial of the motion.
Plaintiff’s failure to submit a statement of material facts with his summary judgment
motions. (Doc. Nos. 20, 30), provides a ground for denying his applications. However,
as discussed below, the Court, instead, dismisses Plaintiff’s complaint, thereby
rendering his pending motions moot.
Plaintiff failed to exhaust his administrative remedies prior to filing his lawsuit.
Under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), “[n]o action shall
be brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” (emphasis added). With
certain exceptions addressed below, such exhaustion of administrative remedies is
mandatory. See Porter v. Nussle, 534 U.S. 516, 524 (2002) (“[E]xhaustion in cases
covered by § 1997e(a) is now mandatory.”) (citation omitted). “Even when the prisoner
seeks relief not available in grievance proceedings, notably money damages,
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exhaustion is a prerequisite to suit.” Id. The “PLRA’s exhaustion requirement applies to
all inmate suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other wrong.” Id.
at 532. Generally in order to satisfy § 1997e(a), a plaintiff must use the DOCCS1’s
inmate grievance procedures:
To initiate the process, an inmate must file a written complaint with the
Inmate Grievance Resolution Committee (“IGRC”), a facility committee
composed of inmates and appointed staff members. See N.Y.C.R.R.
§ 701.4–.5. The complaint must “contain a concise, specific description of
the problem and the action requested.” N.Y.C.R.R. § 701.7(a)(1)(i) (1998)
(now codified as amended at N.Y.C.R.R. § 701.5(a)(2) (2007)). Second,
the inmate can appeal an unfavorable IGRC determination to the
superintendent of the facility. See N.Y.C.R.R. § 701.7(b) (1998) (now
codified as amended and renumbered at N.Y.C.R.R. § 701.5(c) (2007)).
Finally, an inmate can appeal an unfavorable superintendent’s
determination to the Central Office Review Committee (“CORC”). See
N.Y.C.R.R. § 701.7(c) (1998) (now codified as amended and renumbered
at N.Y.C.R.R. § 701.5(d) (2007)); Directive No. 4040.
Amador v. Andrews, No. 08-2079-pr, --- F.3d ---, 2011 WL 3629717 at *4 (2d Cir. 2011).
Plaintiff states in his Response to Defendants’ Cross-Motion (Doc. No. 32) that
he filed a grievance (Ex. A). However, there is no record of his filing. He alleges that if
there is no record of it, then the grievance committee must have misplaced it. (Id. at 2).
However, Plaintiff took no further action to continue pursuing his administrative
remedies prior to filing this action. Where an inmate fails to exhaust his administrative
remedies in accordance with prescribed prison procedures, the following three-part
1
The department has changed it name following a merger with the Division of Parole.
The department is now known as the New York State Department of Corrections and Community
Supervision.
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inquiry is appropriate:
The Court must ask whether administrative remedies were in fact
available to the prisoner. The Court should also inquire as to whether the
defendants may have forfeited the affirmative defense of non-exhaustion
by failing to raise or preserve it, or whether the defendants’ own actions
inhibiting the inmate’s exhaustion of remedies may estop one or more of
the defendants from raising the plaintiff’s failure to exhaust as a defense.
If the Court finds that administrative remedies were available to the
plaintiff, and that the defendants are not estopped and have not forfeited
their non-exhaustion defense, but that the plaintiff nevertheless did not
exhaust available remedies, the Court should consider whether special
circumstances have been plausibly alleged that justify the prisoner’s
failure to comply with administrative procedural requirements.
Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004) (citations and internal quotation
marks omitted); See also, Brownell v. Krom, 446 F.3d 305, 311 (2d Cir. 2006).The
United States Supreme Court decided in Woodford v. Ngo, 548 U.S. 81 (2006) the
question of whether “a prisoner can satisfy the [PLRA’s] exhaustion requirement, 42
U.S.C. § 1997e(a), by filing an untimely or otherwise procedurally defective
administrative grievance or appeal.” Id. at 83–84. There, the Supreme Court held that
the PLRA requires “proper exhaustion,” which “means using all steps the agency holds
out, and doing so properly (so that the agency addresses the issues on the merits).” Id.
at 90 (internal quotations omitted); see also Ruggiero v. County of Orange, 467 F.3d
170, 176 (2d Cir. 2006) (interpreting Woodford as holding that PLRA exhaustion
mandates “compliance with an agency’s deadlines and other critical procedural rules”)
(quoting Woodford v. Ngo, 548 U.S. at 90).
Here, reviewing the three-part inquiry directed d by Hemphill, the Court finds that
Plaintiff has failed to exhaust his administrative remedies. First, Plaintiff had
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administrative remedies available to him. Second, Defendants raised the exhaustion
defense in their answers, as well as in the cross-motion for summary judgement, and
there is no evidence that they took any action to inhibit Plaintiff’s exhaustion of
remedies. Finally, the Court finds no special circumstances in this case to justify
Plaintiff’s failure to comply with the procedural requirements. In that regard, Plaintiff’s
statement that “they [the grievance committee] misplaced it” does not present a
reasonable excuse or a special circumstance. (Doc. No. 32). The Court finds the “copy”
of the grievance (Id. at Ex. A) unreliable as it was not produced with the Complaint, not
notarized, and there is no record of it having been filed. Additionally, Plaintiff failed to
follow-up his filed complaint pursuant to the the procedure set out in the DOCCS
Directive and required by the PLRA. Consequently, DOCCS was not allowed to address
his claim on its merits. Therefore, Plaintiff was not justified in failing to exhaust his
administrative remedies prior to filing his § 1983 claim, and his claim must be dismissed
without prejudice.
CONCLUSION
For the reasons discussed above, Plaintiff’s motions (Doc. Nos. 20, 21, 30) are
denied, Defendants’ cross-motion for summary judgement is granted (Doc. No. 25), and
Plaintiff’s complaint (Doc. No. 1) is dismissed without prejudice.
IT IS SO ORDERED.
Dated: October 26, 2011
Rochester, New York
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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