Butler v. New York State Department of D.O.C.

Filing 85

-CLERK TO FOLLOW UP-ORDER granting 84 Plaintiff's Motion for Reconsideration and Plaintiffs Second Amended Complaint (Dkt #76) is restored to the Courts active docket. Defendants are directed to file an Answer to the claims in the Second Ame nded Complaint that remain pending within thirty (30) days of the date of this Decision and Order. Within thirty (30) days of the date of this Order, Defendants may file a further motion to dismiss the Second Amended Complaint, accompanied by appropr iate exhibits demonstrating that an Answer is unnecessary. The timely filing of such a motion shall extend the time for filing an Answer by fourteen (14) days, but the Courts failure to act upon the motion to dismiss within that time shall not further extend the time to file an Answer.. Signed by Hon. Michael A. Telesca on 7/17/13. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KEITH TERRELL BUTLER,
Plaintiff,

DECISION AND ORDER
No. 08-CV-6385(MAT)

-vsJAMES CONWAY, RICK WOODS, CAPTAIN
ROBINSON, LIEUTENANT W. MURRAY,
LIEUTENANT T. DIXON, LIEUTENANT
BORAWSKI, G.B. KRAZIK, STEVE BULLIS, LT.
JAN VANN, C.O. W. SKELLY, C.O. T.
HARRIS, C.O. J. SMITH, SERGEANT GARY C.
BELTZ, RN J. JILSON, RN J. CLEMENS,
NURSE ADMINISTRATOR C. FELKER, MAIL
SUPERVISOR K. WASHBURN, I.G.P.
SUPERVISOR B. ABRUNZO, D.O.C.S.
COMMANDING CHIEF LIABLE BRIAN FISCHER,
ACTING SUPERINTENDENT M. SHEAHAN,
Defendants.

I.

Background
On April 3, 2013, the Court granted Defendants’ partial motion

to dismiss the pro se civil rights complaint of inmate Keith Butler
(“Butler” or “Plaintiff”) for failure to state a claim, thereby
dismissing a number of causes of action and terminating several
defendants. The Court directed Defendants to file an answer with
regard to the claims that remained pending.1 See Dkt #81.

1

The remaining claims were not addressed by Defendants in their
partial motion to dismiss and did not appear to warrant dismissal
for failure to state a claim: Southport corrections officers Sgt.
Beltz, C.O. Harris, C.O. Smith, and C.O. Skelly, along with R.N.
Jilson, utilized excessive force on September 30, 2009, against
Butler in violation of the Eighth; Deputy Superintendent of
Security/Acting Superintendent of Southport M. Sheahan failed to

On April 23, 2013, and April 29, 2013, two items of Court
correspondence sent to Butler at his last address of record (Five
Points

Correctional

Facility)

were

returned

to

the

Court

as

undeliverable. The Court discovered, through a search of the Inmate
Information Database maintained by the New York State Department of
Corrections and Community Supervision (“DOCCS”), that Butler had
been released to parole supervision on March 7, 2012.2 However, the
most recent docket entry indicating a change of address notice
received from Plaintiff had been on December 16, 2011, when the
Clerk’s Office noted that “pltf address updated from Medford NY to
Five Points CF.” It therefore appeared that Butler had failed to
apprise the Court of his release from a DOCCS’ facility and his new
address in violation of the procedural rules for the Western
District of New York–namely, Local Rule 5.2(d) (“L.R. 5.2(d)”).
Accordingly, on May 2, 2013, the Court entered a Decision and
Order dismissing the action with prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure (“F.R.C.P.”), based upon
Butler’s failure to prosecute this action; and pursuant to L.R.

protect Butler from harm in connection with the alleged September
30, 2009 assault; (3) Southport employees R.N. Jilson and R.N.
Felker were deliberately indifferent to Plaintiff’s serious medical
needs in violation of the Eighth Amendment; (4) Southport Mailroom
Supervisor K. Washburn interfered with Plaintiff’s legal mail in
violation of the First Amendment on November 1, 2009; and (5)
Plaintiff was denied the right to freely exercise his religion.
2

http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ2/WINQ120
(accessed May 1, 2013).
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5.2(d), based upon his failure to advise the Court of a current
address. See Dkt #82. Judgment was entered on May 3, 2013. See Dkt
#83.
On May 16, 2013, Butler, who apparently has been returned to
DOCCS’ custody, filed a pleading titled “Opposition to Decision and
Order”

(Dkt

#84),

which

was

docketed

as

a

Motion

for

Reconsideration. Butler states that he informed the Court by “phone
and mail of change of address of 52 Clearview Drive Selden NY 11783
and P.O. Box 126 Shirley NY 11697" but there “was never a response
sent to either address.” Plaintiff’s Motion for Reconsideration
(“Pl’s Mot.”), ¶¶ 3, 8 (Dkt #84). Plaintiff filed an additional
pleading on June 16, 2013, titled, “Opposition to Dismissle [sic]
for Failure to Prosecute” (Dkt #85), in which he reiterates that he
“was in contact with the clerk of the court and has called them
quite a few times” and requests that the Court reinstate his case.
Defendants have not filed any papers in opposition to Plaintiff’s
motion or otherwise objected to his request.
II.

Discussion
Although Butler does not cite a specific rule, “[m]otions to

set aside a dismissal for failure to prosecute are properly brought
under [F.R.C.P.] 60(b)[,]” Canini v. United States Dept. of Justice
Federal Bureau of Prisons, No. 04 Civ. 9049(CSH), 2008 WL 818696,
at *2 (S.D.N.Y. Mar. 26, 2008), which provides that “on motion and
upon such terms as are just . . . the court may relieve a party .

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. . from a final judgment, order or proceeding.” FED. R. CIV. P.
60(b). F.R.C.P. 60(b) enumerates six grounds for relief, including
a catch-all provision authorizing the Court to consider “any other
reasons justifying relief from the operation of the judgment.” FED.
R. CIV. P. 60(b)(6). “Properly applied Rule 60(b) strikes a balance
between serving the ends of justice and preserving the finality of
judgments. In other words it should be broadly construed to do
substantial justice, yet final judgments should not be lightly
reopened.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).
Once

Butler

received

notice

of

the

Court’s

order

of

involuntary dismissal, apparently upon being reincarcerated, he
promptly notified the Court that he was not abandoning his case. He
explained that he had provided updates of two residential addresses
over the time he had been released to parole, but he had never
received any correspondence from the Court at those addresses.
Butler then sent a second request to the Court to have his case
reinstated, demonstrating that he is intent on pursuing his legal
claims against DOCCS. Review of the docket indicates that Butler,
in the past, regularly updated the Court with his residential and
DOCCS’

addresses.

Thus,

his

claim

that

his

change-of-address

request was not processed by the Clerk’s Office has some credence.
Furthermore, the Court cannot say at this juncture that Butler’s
remaining claims do not have potential merit. Given the brief
duration

of

time

from

the

Court’s

-4-

involuntary

dismissal

and

Butler’s request to reopen the case (approximately two weeks),
Defendants have not suffered any demonstrable prejudice. For all of
these reasons, Court finds that relief from the harsh sanction of
a F.R.C.P. 41(b) involuntary dismissal is warranted in Butler’s
case.
III. Conclusion
Plaintiff’s Motion for Reconsideration (Dkt #84) is granted,
and Plaintiff’s Second Amended Complaint (Dkt #76) is restored to
the Court’s active docket.
Defendants are directed to file an Answer to the claims in the
Second

Amended

Complaint

that

remain

pending

within

thirty

(30) days of the date of this Decision and Order. Within thirty
(30) days of the date of this Order, Defendants may file a further
motion to dismiss the Second Amended Complaint, accompanied by
appropriate exhibits demonstrating that an Answer is unnecessary.
The timely filing of such a motion shall extend the time for filing
an Answer by fourteen (14) days, but the Court’s failure to act
upon the motion to dismiss within that time shall not further
extend the time to file an Answer.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

July 17, 2013
Rochester, New York
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