Hill v. Napoli
Filing
67
ORDER denying with prejudice 65 Plaintiff's Motion for Reconsideration. Signed by Hon. Michael A. Telesca on 12/1/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
MICHAEL HILL,
DECISION AND ORDER
No.6:09-CV-6546-MAT
Plaintiff,
-vsDAVID F. NAPOLI, et al.,
Defendants.
____________________________________
I.
Introduction
Michael Hill (“Plaintiff”), an inmate in the custody of the
New York State Department of Corrections and Community Supervision
(“DOCCS”), brought this pro se action pursuant to 42 U.S.C. §§ 1983
and 1985 against Defendants for alleged violations of his First,
Eighth, and Fourteenth Amendment rights. See Complaint (“Compl.”)
(Dkt #1). After Defendants answered the Complaint, the matter
proceeded to discovery. Plaintiff then filed a Motion to Compel
Discovery (Dkt #51) and Motion for Summary Judgment (Dkt #26).
Defendants opposed both of Plaintiff’s motions, and cross-moved for
dismissal of the Complaint (##47, 53) pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure (“Rule 12(b)(6)”). Based upon
the contents of the parties’ submissions and the arguments made
therein,
the
Defendants’
judgment.
Court
motion
determined
to
dismiss
that
as
a
it
was
proper
cross-motion
to
for
treat
summary
On March 31, 2014, the Court issued a Decision and Order
(Dkt #58) denying with prejudice Plaintiff’s Motion to Compel
Discovery (Dkt #51); denying with prejudice Plaintiff’s Motion for
Summary
Judgment
(Dkt
#26);
granting
Defendants’
Motion
to
Dismiss/Cross-Motion for Summary Judgment (Dkt #47); and dismissing
the Complaint in its entirety with prejudice. Judgment (Dkt #59)
was entered that day. Plaintiff filed a Notice of Appeal with the
Second Circuit Court of Appeals on May 5, 2014.
On July 22, 2014, Plaintiff filed a document in this Court
captioned as a “Motion to Reconsider/Reargue Pursuant to 59(e)
60(b)”,
which
was
docketed
as
a
Motion
for
Reconsideration
(Dkt #65). On September 5, 2014, a Notice of Stay (Dkt #66) was
filed in this Court with regard to Plaintiff’s appeal to the Second
Circuit.
Defendants
have
not
responded
to
Plaintiff’s
Motion
for
Reconsideration. For the reasons set forth below, Plaintiff’s
application is denied.
II.
Relevant Legal Standards
Motions to alter or amend the judgment under Rule 59(e) “must
be filed no later than 28 days after the entry of the judgment.”
FED. R. CIV. P. 59(e). Importantly, “a court must not extend time to
act under Rules . . .
59(b), (d), and (e) and 60(b).” FED. R. CIV.
P. 6(b)(2). This rule limiting the Court’s discretion is “mandatory
and jurisdictional and . . . cannot be circumvented regardless of
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excuse.” Rodick v. City of Schenectady, 1 F.3d 1341, 1346 (2d Cir.
1993) (citation and quotation omitted). Furthermore, Plaintiff’s
pro se status “does not exempt [him] from compliance with relevant
rules of procedural and substantive law.” Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 477 (2d Cir. 2006).
Plaintiff’s Motion for Reconsideration was not filed until
nearly three months after the entry of judgment in this case, and
it therefore is untimely. However, under Second Circuit case law,
“an untimely motion for reconsideration is treated as a Rule 60(b)
motion” to vacate the judgment. Lora v. O’Heaney, 602 F.3d 106, 111
(2d Cir. 2010) (citing Branum v. Clark, 927 F.2d 698, 704 (2d Cir.
1991)). Rule 60(c) provides that “[a] motion under Rule 60(b) must
be made within a reasonable time-and for reasons (1), (2), and (3)
no more than a year after the entry of the judgment or order or the
date of the proceeding.” FED R. CIV. P. 60(c). A Rule 60(b) motion
“is addressed to the sound discretion of the district court. . . .”
Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986) (citations
omitted).
It is clearly settled, however, that a motion under Rule 60(b)
“cannot serve as an attempt to relitigate the merits” of a prior
decision. Fleming v. New York Univ., 865 F.2d 478, 484 (2d Cir.
1989) (citing Mastini v. American Tel. & Telegraph Co., 369 F.2d
378, 379 (2d Cir. 1966), cert. denied, 387 U.S. 933 (1967);
Nederlandsche Handel–Maatschappij, N.V. v. Jay Emm, Inc., 301 F.2d
-3-
114, 115 (2d Cir. 1962)). A court considering a Rule 60(b) motion
“must balance the policy in favor of hearing a litigant’s claims on
the merits against the policy in favor of finality.” Kotlicky v.
United States Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987)
(citation omitted). The Second Circuit has characterized Rule 60(b)
relief
as
“extraordinary”
requiring
proof
of
“exceptional
circumstances.” Id. (citations omitted). Thus, before granting a
Rule 60(b) motion, a court should be satisfied that the claims are
supported by “highly convincing” evidence; that “good cause” is
shown as to why the movant could not have acted sooner; and that
“no undue hardship [is] imposed on other parties.” Kotlicky, 817
F.2d at 9 (citations omitted).
A court may grant a motion brought under Rule 60(b) for the
following
reasons:
“(1)
excusable
neglect;
(2)
mistake,
newly
inadvertence,
discovered
surprise,
evidence
that,
or
with
reasonable diligence, could not have been discovered in time to
move
for
a
new
trial
under
Rule
59(b);
(3)
fraud
.
.
.
misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged . . . ; or (6) any other reason that justifies relief.”
FED. R. CIV. P. 60(b). According to Plaintiff, vacatur is warranted
because this Court erroneously resolved disputes meant for a trial
jury; “misquoted, misconstrued, misinterpreted, and misapplied
facts, exhibits and case law”; and committed a “clear mistake or a
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misconduct that has caused an injustice.” Plaintiff’s Motion for
Reconsideration
(“Pl’s
Mot.”),
¶
4.
The
Court
finds
that
Plaintiff’s motion is most properly considered under subsection (1)
of Rule 60(b), which allows a litigant relief from judgment because
of “mistake, inadvertence, surprise, or excusable neglect.” Fed. R.
Civ.
P.
60(b)(1).
The
other
subsections
of
Rule
60(b)
are
inapplicable here. While subsection (6), also known as Rule 60(b)’s
catchall provision, potentially could apply, the Second Circuit has
made clear that a district court may consider a motion under that
provision “only if the other, more specific grounds for relief
encompassed
by
[Rule
60(b)]
are
inapplicable.”
Maduakolam
v.
Columbia Univ., 866 F.2d 53, 56 (2d Cir. 1989) (citing Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 863-64 (1988); other
citation omitted).
III. Discussion
In his Motion for Reconsideration, Plaintiff has assigned
error to the Court’s analysis of each and every one of his causes
of actions. His arguments are discussed in turn below.
A.
Interference with Legal Papers
In his Complaint, Plaintiff asserted that Corrections Officer
(“C.O.”) Harvey read his trial transcripts and destroyed a large
portion of his legal papers, thereby violating his Due Process
rights. Plaintiff did not allege a First Amendment retaliation
claim, but the Court construed these allegations broadly to assert
-5-
one. The Court found the critical element of “actual injury”
lacking because Plaintiff failed to allege that he was hindered in
his ability to pursue a lawsuit based on C.O. Harvey’s actions. See
Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (actual injury
necessary for an interference-with-First Amendment-rights claim
occurs only when the loss of the inmate’s pleadings prejudiced his
ability to pursue a legal claim).
Plaintiff now asserts that the Court’s ruling was “false”
because
he
“was
in
settlement
negotiation
and
C.O.
Harvey’s
destroying of transcripts and communications from pro bono counsel
. . . caused an unfavorable settlement of case Hill v. Beall.” Pl’s
Mot., ¶ 16. This Court’s research reveals that “Hill v. Beall” was
a case pending in this District before District Judge Siragusa.
See Hill v. Beall, et al., 6:06-cv-06568-CJS-JWF (W.D.N.Y. 2006).
It terminated on May 5, 2010, with DOCCS paying $21,500.00 to
settle Plaintiff’s claims.
As an initial matter, the Court notes that Plaintiff failed to
mention Hill v. Beall in connection with his allegations concerning
C.O. Harvey in his Complaint. Furthermore, Hill v. Beall resulted
in Plaintiff’s receipt of a favorable settlement–notwithstanding
C.O. Harvey’s alleged interference with his legal papers. This fact
contradicts Plaintiff’s claim of prejudice and precludes a finding
of actual injury resulting from C.O. Harvey’s actions. Accordingly,
the
Court
finds
no
basis
to
deviate
-6-
from
its
holding
that
Plaintiff’s retaliation claim against C.O. Harvey fail as a matter
of law.
B.
Mechanical Restraints
In its Decision and Order, the Court interpreted Plaintiff’s
Complaint as alleging that Defendants violated his Due Process
rights by placing him in mechanical restraints during his transfer
to Level 1. The Court found no constitutional violation because the
restraint order was reviewed regularly by prison staff. Plaintiff
states that the Court “lied” because his placement in restraints
occurred during all of his out-of-cell movements, not just during
his transfer. This is irrelevant to the disposition of Plaintiff’s
Due Process claim.
As
Plaintiff
states
in
his
Motion
for
Reconsideration,
“Defendants’ co-workers daily review[ed] said [restraint] status.
. . .” Pl’s Mot., ¶ 17. Plaintiff thus admits that Defendants
complied with the applicable State regulation, Title 7, N.Y. Comp.
R. & Reg., § 305.2(c). Clearly, there was no violation of New York
State law, much less a Due Process error of Federal constitutional
magnitude. See, e.g., Dawes v. Coughlin, 964 F. Supp. 652, 658
(N.D.N.Y. 1997) (“It has been held that the daily review of
deprivation
orders,
the
availability
of
the
inmate
grievance
program, and the fact that an inmate has a judicial remedy to
challenge deprivation orders, and restraining orders, under [Civil
Practice Law and Rules]
article 78 clearly provide due process of
-7-
law.”) (citation omitted), aff’d, 159 F.3d 1346 (2d Cir. 1998). The
Court adheres to its ruling that Plaintiff’s Due Process claim
regarding the restraint order fails as a matter of law.
C.
Deprivation Orders
Plaintiff states that the Court erred because it did not
mention the
dates
on
which
certain
of
his
privileges
(e.g.,
exercise and haircut) were restored. Based upon this alleged
omission, Plaintiff surmises that the Court failed to completely
examine the actual conditions of his confinement. Contrary to
Plaintiff’s contention, the Court reviewed all of the deprivation
orders in the record. As the Court found in its Decision and Order,
each order was of a limited duration and insufficient to implicate
a liberty interest. Again, Plaintiff has failed to establish a
violation of his Due Process rights.
D.
Retaliation for Filing Grievances
Plaintiff takes issue with the Court’s ruling that because it
did not sufficiently establish a causal nexus between C.O. Held’s
filing of a misbehavior report against him on July 13, 2009, and
any protected conduct, he failed to state a claim of retaliation.
Plaintiff states that he alleged in his Complaint that “almost
immediately after Mr. Hill complained to the Inspector General’s
office regarding the events in Hill v. Washburn WDNY 08-CV-6285,”
C.O. Held “wrote his false report. . . .” Compl., ¶ 35 (citing
Exhibit (“Pl’s Ex.”) L). This exhibit is a memorandum from Vernon
-8-
Fonda, Director of Operations, Inspector General’s Office (“IGO”),
dated July 2, 2009, indicating that he had received Plaintiff’s
letter dated June 29, 2009, and that they were referring it to the
Southport superintendent “for review and any action they deem
appropriate.” Pl’s Ex. L.
As an initial matter, C.O. Held’s misbehavior report was not
issued “almost immediately” after Plaintiff’s correspondence to the
IGO.
Furthermore,
C.O.
Held
was
not
a
defendant
in
Hill
v.
Washburn, the case that was the subject of Plaintiff’s letter to
the IGO. The conduct complained of in Hill v. Washburn (the alleged
mishandling of Plaintiff’s mail) was wholly unrelated to C.O. Held
or this lawsuit, and it predated the July 2009 misbehavior report
by two years. The Court therefore adheres to its ruling that
Plaintiff has not shown a causal nexus between any action Plaintiff
may have taken in regard to Hill v. Washburn and C.O. Held’s
misbehavior report on July 13, 2009.
E.
Adjournments of the Disciplinary Hearing
Plaintiff continues to assert that a jury must resolve whether
Hearing
Officer
applicable
New
James
York
Esgrow
State
(“H.O.
Esgrow”)
regulations
when
complied
he
obtained
with
an
adjournment in the disciplinary hearing about which Plaintiff
complains in this matter. As the Court previously held, this claim
is
not
cognizable
constitutional
in
a
standards
Section 1983
rather
-9-
than
action
state
because
law
“Federal
define
the
requirements of procedural due process.” Russell v. Coughlin, 910
F.2d 75, 78 n.1 (2d Cir. 1990) (citation omitted). Plaintiff has
offered no basis for reconsideration of this ruling, and the
Court’s dismissal of this claim stands.
F.
Failure to Call Inmate Witness
Plaintiff attempts to reargue his Due Process claim regarding
H.O.
Esgrow’s
Marshall
decision
(“Marshall”).
not
to
call
According
inmate
to
witness,
Plaintiff,
H.O.
Deatrick
Esgrow
improperly labeled Marshall’s testimony as “redundant, knowing I
was prevented from knowing the nature of [it] due to him ordering
assistant not to bring it back to me.” Pl’s Mot., ¶ 23.
The
Court
again
has
reviewed
the
disciplinary
hearing
transcript, and adheres to its ruling that the hearing officer did
not improperly find Marshall’s testimony to be cumulative. When the
hearing officer asked Hill what Marshall would say differently than
what the three testifying inmate witnesses had already said (i.e.,
that Hill had not said what C.O. Held accused him of saying),
Plaintiff was unable to articulate anything specific, commenting,
“maybe he going to say I didn’t say anything, that he was the one
who actually said it or you know what I mean.” Thus, Plaintiff did
not
even
know
if
Marshall
would
have
provided
exonerating
testimony. His assertion that Marshall would have confessed to
saying what C.O. Held accused Hill of saying is pure speculation.
H.O. Esgrow thus did not abuse his discretion in declining to call
-10-
Marshall, and the Court adheres to its ruling that there was no
constitutional violation in this regard.
G.
Inadequate Employee Assistant
In his Complaint, Plaintiff asserted H.O. Esgrow “caus[ed]
assistant [Jacqueline Mackey] not to question witnesses and bring
back statements describing their potential testimony.” Compl.,
¶ 57(ii). The Court found that there was no evidence that Mackey
failed to fulfill her duties as Plaintiff’s assistant, given that
she
verified
in
writing
that
she
had
interviewed
all
of
Plaintiff’s witnesses, and that they all agreed to testify that
Plaintiff had not made any threats to C.O. Held about withholding
feed-up
trays
Reconsideration,
or
choosing
Plaintiff
porters.
has
In
his
impermissibly
Motion
for
altered
his
allegations to accuse Mackey directly, stating that she never
brought back written statements of witnesses and never allowed
Plaintiff to know what they were going to say. The Court rejects
Plaintiff’s attempt to relitigate his Due Process claim regarding
the assistance he received at his hearing, which was, by all
accounts, more than adequate.
H.
Application of Erroneous Evidentiary Standard
Plaintiff contends that the Court erred in finding that H.O.
Esgrow’s disciplinary finding satisfied Due Process requirements
because it met the “some evidence” standard articulated by the
Supreme Court in Superintendent v. Hill, 472 U.S. 445 (1985)
-11-
(holding
that
a
state
prison
disciplinary
determination
will
withstand a due process challenge if the decision is supported by
“some
evidence”).
Plaintiff
contends
that
this
was
incorrect
because H.O. Esgrow has been “shown to be partial and arbitrarily
exercising bids.” Pl’s Mot., ¶ 25. Therefore, Plaintiff asserts,
the Court should have applied the more demanding “preponderance of
the evidence” standard. Plaintiff’s allegations of partiality and
bias on the part of H.O. Esgrow are pure speculation. Furthermore,
his citation of footnote 4 in Brown v. Fauver, 819 F.2d 395, 399
n.4 (3d Cir. 1987), is inapposite inasmuch as that dealt with the
legality of a New Jersey prison regulation in the context of the
burden of proof to be applied at prison disciplinary hearing, not
to the standard of review to be used by a federal court when
assessing the constitutionality prison disciplinary hearing. In the
latter situation, the Third Circuit indicated, Hill applies. Brown,
819 F.2d at 399 n.4. Thus, Brown does not support the proposition
that this Court erred in applying Hill in Plaintiff’s case.
Finally, Plaintiff reiterates his argument that Director of
Special Housing Norman Bezio should be held liable because, by
affirming the disciplinary hearing on administrative appeal, he
condoned and ratified all of the errors committed by H.O. Esgrow
and Southport staff members. As the Court previously found, there
were no errors of constitutional magnitude in the conduct of
-12-
Plaintiff’s disciplinary hearing. Accordingly, there is no basis to
impose liability on Director Bezio.
J.
Conspiracy
Plaintiff asserts that because the Court did not cite every
paragraph of his Complaint, it ignored various allegations that
were relevant to his claims of conspiracy under 42 U.S.C. § 1983
and § 1985. Contrary to Plaintiff’s suggestion, the Court did
consider his Complaint in its entirety. Nevertheless, the Court
could
not,
and
cannot
find,
any
non-conclusory,
colorable
allegations of conspiracy in the Complaint. The Court therefore
finds
no
basis
to
reconsider
its
holding
that
Plaintiff’s
conspiracy claims fail as a matter of law.
K.
Cell Conditions
Plaintiff takes issue with the Court’s resolution of his claim
concerning the allegedly unhygienic conditions of his cell–that it
was dirty, infested with ants, and smelled of urine. As a result,
he suffered from intestinal-related symptoms for “days”. Plaintiff
also mentioned in passing in his Complaint that he was deprived of
meals for 72 hours, but he provided no other specifics. The Court
dismissed these allegations as contradicted by his exhibits and as
insufficient as a matter of law.
Plaintiff now has amplified his allegations regarding his cell
stating that the “ants were actually termites”, and speculating
that an inmate with mental health problems had previously lived in
-13-
his cell and urinated on the walls and floor. This alteration of
Plaintiff’s allegations is an impermissible attempt to belatedly
amend his Complaint and reargue his motion for summary judgment. In
any event, the Court declines to reconsider its ruling that these
claims must fail because Plaintiff has not shown that Defendants
violated the Eighth Amendment. The conditions alleged, as the Court
stated in its Decision and Order, did not expose Plaintiff to
conditions posing an unreasonable, substantial risk of harm to his
health. And, as the Court previously noted, the exhibits indicate
that Plaintiff was seen on sick call for his complaints of ill
health stemming from his cell conditions.
Finally, with regard to the alleged deprivation of meals,
Plaintiff again has expanded upon the allegations in his Complaint.
He now identifies who allegedly was responsible, stating that
Superintendent Napoli ordered his staff to “not feed” Plaintiff
from August 3, to August 6, 2009 in retaliation for Plaintiff
complaining to Superintendent Napoli about various topics. He also
states that he was deprived of 9 meals. Again, this embellishment
represents an impermissible attempt by Plaintiff to belatedly amend
his Complaint and reargue his motion for summary judgment.
Furthermore, there is an additional basis for dismissing this
claim, namely, that Plaintiff failed to exhaust his administrative
remedies. See, e.g., Macias v. Zenk, 495 F.3d 37, 40 (2d Cir. 2007)
(stating that “‘the PLRA’s exhaustion requirement applies to all
-14-
inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive
force
or
some
other
wrong’”)
(quotation
omitted).
Although an inmate’s informal complaints may give prison officials
substantive notice of the inmate’s claim, the inmate, to avoid
dismissal, nevertheless must “procedurally exhaust his available
administrative
remedies.”
omitted).
record,
The
Macias,
consisting
495
of
F.3d
at
documents
43
(citation
submitted
by
Defendants and Plaintiff, are replete with grievances filed by
Plaintiff with regard to his other claims, but there is no evidence
of a grievance, formal or informal filed with regard to the alleged
deprivation of meals. This claim accordingly must be dismissed
based on Plaintiff’s failure to exhaust remedies as required by the
PLRA. See, e.g., Brown v. Commissioner, No. 99 Civ. 0976(WHP), 2003
WL 1571699, at *4 (S.D.N.Y. Mar. 26, 2003) (granting summary
judgment to correctional officers where there was no evidence that
inmate filed any grievance with respect to officer’s alleged
retaliatory conduct, and even if he filed something akin to a
“constructive grievance,” he failed to make any attempt to exhaust
administrative appeals process); see also Collins v. Cunningham,
No. 06-CV-420F, 2009 WL 2163214, at *7 (W.D.N.Y. July 20, 2009)
(granting summary judgment to correctional defendants because no
reasonable jury could find plaintiff’s evidence sufficient to raise
-15-
a genuine issue of fact as to whether his exhausted available
administrative remedies) (citation omitted).
L.
Deliberate Medical Indifference
A large portion of Plaintiff’s Motion for Reconsideration
concerns the allegedly unconstitutional medical care he received at
Southport. The gist of Plaintiff’s complaints is that he was denied
appropriate
skin
cream
for
his
alleged
eczema
and
that
the
administration of a tuberculosis (“TB”) vaccine was mishandled.
Plaintiff merely repeats his confusing and obtuse allegations
concerning the circumstances surrounding his TB vaccination, which
the Court has already addressed and found meritless.
As for his alleged eczema, the Court re-reviewed Plaintiff’s
medical records, and there is no indication that he was
actively
suffering from eczema the time relevant to his Complaint. The only
notation in the records regarding eczema is that, a number of years
prior to the Complaint, Plaintiff self-reported a history of
eczema. Plaintiff has come forward with no basis for the Court to
reconsider its dismissal of his claims of deliberate medical
indifference as insufficient as a matter of law.
IV.
Conclusion
For
the
reasons
Reconsideration
is
discussed
denied
about,
with
Plaintiff’s
prejudice.
The
Motion
Court
for
hereby
certifies that any appeal from this Decision and Order would not be
-16-
taken in good faith, and therefore denies leave to appeal in forma
pauperis.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
December 1, 2014
Rochester, New York
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