Kearney v. N.Y.S. D.O.C.S. et al

Filing 51

DECISION AND ORDER DENYING 50 Motion to Vacate the Court's 9/18/14 Decision and Order. Leave to appeal in forma pauperis is again denied, and this action shall remain closed. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 5/17/17. A copy of this Decision and Order and the NEF have been mailed to the pro se Plaintiff. (SCE)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RICHARD KEARNEY,
Plaintiff,
Case # 11-CV-6033-FPG
v.
DECISION AND ORDER
CORRECTIONS OFFICERS R. DRANKHAN,
T. MCDONNEL, and R. LETINA,
Defendants.

By Decision and Order dated September 18, 2014, the Court granted Defendant’s
summary judgment motion and dismissed this case with prejudice because pro se Plaintiff
Richard Kearney failed to exhaust his administrative remedies before commencing this action.
ECF No. 44. Kearney appealed that decision to the United States Court of Appeals for the
Second Circuit, and on March 4, 2015, the appeal was dismissed “because it ‘lacks an arguable
basis in law or in fact.’” See Kearney v. N.Y. Dep’t of Corr. Servs., No. 14-4536, ECF No. 41
(quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)) (unpublished order). Kearney then
petitioned the United States Supreme Court for a writ of certiorari and for permission to proceed
in forma pauperis.

On October 13, 2015, the Supreme Court denied Kearney’s in forma

pauperis application and dismissed his certiorari petition. See Kearney v. N.Y. Dep’t of Corr.
Servs., 136 S. Ct. 355, reconsideration denied, 136 S. Ct. 606 (2015).
Kearney has now filed a motion under Fed. R. Civ. P. 60(b)(6) to vacate the Court’s
September 18, 2014 summary judgment decision and to reopen this case. ECF No. 50. For the
following reasons, the application is DENIED.
DISCUSSION
Federal Rule of Civil Procedure 60(b) “allows a party to seek relief from a final
judgment, and request reopening of his case, under a limited set of circumstances including

fraud, mistake, and newly discovered evidence.” Gonzalez v. Crosby. 545 U.S. 524, 528 (2005).
As relevant here, subsection 60(b)(6) “permits reopening when the movant shows ‘any ... reason
justifying relief from the operation of the judgment’ other than the more specific circumstances
set out in Rule 60(b)(1)-(5).” Id. at 528–29. To obtain relief under Rule 60(b)(6), a moving party
must demonstrate “extraordinary circumstances” justifying the reopening of the final judgment.
Id. at 536. “[A]s a general matter, a mere change in decisional law does not constitute an
‘extraordinary circumstance’ for the purposes of Rule 60(b)(6).” Marrero Pichardo v. Ashcroft,
374 F.3d 46, 56 (2d Cir. 2004).
Kearney argues that the Court should grant him relief under Rule 60(b)(6) for two
reasons. First, Kearney argues that the Court should have held a hearing to determine whether he
exhausted his administrative remedies, and second, he argues that he was entitled to a jury trial,
since he demanded a jury trial in this case and never waived his right to trial by jury.
The law of the case doctrine bars the Court from now considering these issues. Under that
doctrine, “[w]hen an appellate court has once decided an issue, the trial court, at a later stage of
the litigation, is under a duty to follow the appellate court’s ruling on that issue.” Brown v. City
of Syracuse, 673 F.3d 141, 147 (2d Cir. 2012). The doctrine also bars re-litigation in the district
court of matters implicitly decided by an appellate court, as well as re-litigation of matters that
could have been raised on appeal but were not. See United States v. Ben Zvi, 242 F.3d 89, 95 (2d
Cir. 2001) (“where an issue was ripe for review at the time of an initial appeal but was
nonetheless foregone, the mandate rule generally prohibits the district court from reopening the
issue on remand unless the mandate can reasonably be understood as permitting it to do so.”)
The proper time for Kearney to have argued that he was entitled to a hearing and a jury
trial was during his appeal to the Second Circuit, and whether he actually raised those issues or

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not before the Second Circuit, he certainly had the ability to do so. As a result, he is foreclosed
from raising those issues now through this Rule 60(b)(6) application.
Even if the Court could consider these issues, they are without merit. It is well settled
that the grant of summary judgment does not deprive a litigant of their constitutional right to a
jury trial. See, e.g., Maxwell v. N.Y. Univ., 407 F. App’x 524, 526 (2d Cir. 2010) (“Summary
judgment determines only issues of law and does not impair the right to a jury trial”); Benjamin
v. Traffic Exec. Ass'n E. R.R., 869 F.2d 107, 115 n. 11 (2d Cir. 1989) (“Plaintiffs cannot attack
summary judgment decisions as inimicable to the seventh amendment.”). Further, Kearney has
not advanced any basis to support his claim that a hearing on the summary judgment motion was
necessary, and it is well settled that district courts are not required to hold hearings on every
summary judgment motion. See, e.g., Greene v. WCI Holdings Corp., 136 F.3d 313, 316 (2d
Cir. 1998) (“Motions may be decided wholly on the papers, and usually are.”).
Kearney’s application discusses the Supreme Court’s recent decision in Blake v. Ross,
578 U.S. ----, 136 S. Ct. 1850 (2016), and while Kearney quotes several passages from the
Supreme Court’s decision, he does not point to any facts that make Blake applicable to his
circumstances. Indeed, Blake overruled the Second Circuit’s decision in Hemphill v. New York,
380 F.3d 680, 686 (2d Cir. 2004), which permitted courts to evaluate whether “special
circumstances” could excuse a plaintiff’s failure to exhaust his administrative remedies. Far
from relaxing the Hemphill standard, Ross does the opposite and eliminates “special
circumstances” from the exhaustion calculus. Rather, the only relevant consideration now under
Ross is whether administrative remedies were “available” to the prisoner.
In this case, the Court’s summary judgment decision analyzed whether Kearney’s failure
to exhaust his administrative remedies could be excused under the more lenient Hemphill

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standard, and conclu
,
uded that there was no basis for su an excu
uch
usal. Specif
fically, the C
Court
found tha “Plaintiff had the abil to file a grievance re
at
lity
egarding his allegations, but chose n to
s
,
not
do so. There is no al
llegation – much less an evidence – that Plaint was in an way prevented
m
ny
tiff
ny
from acc
cessing the grievance pr
g
rocess.” EC No. 44 a 6. Even i Ross supp
CF
at
if
ported Kearn
ney’s
argument (which it does not), he could not succeed un
ts
h
t
nder the mor demandin Ross stan
re
ng
ndard,
and in an event, he would still be foreclos from reny
e
sed
-litigating th exhaustion issue unde the
he
n
er
law of th case doctr
he
rine. Furthe and as previously sta
er,
ated, “as a ge
eneral matte a mere ch
er,
hange
in decisio
onal law do not const
oes
titute an ‘ex
xtraordinary circumstanc for the p
ce’
purposes of Rule
60(b)(6).” Marrero Pichardo, 374 F.3d at 56. As such, even if Kea
P
,
arney’s claim under Ros had
m
ss
merit (wh it does not), it woul not form the basis for relief under Rule 60(b)(
hich
n
ld
t
r
(6).
CON
NCLUSION
N
For all of these reasons, Kearney’s motion for re
K
m
elief under F
Fed. R. Civ. P. 60(b)(6) (ECF
No. 50) is without merit, and is therefore DE
i
m
ENIED. As it did in 20
s
014, the Cou again cert
urt
tifies,
pursuant to 28 U.S.C § 1915(a) that any appeal from this Order would not b taken in good
C.
),
a
m
be
faith and leave to app to the Court of App
d
peal
C
peals as a po or person is denied. Cop
oppedge v. U
United
States, 369 U.S. 438 (1962). Any request to proceed in forma pa
8
A
auperis on a
appeal shou be
uld
t
d
urt
als
Second Circu in accord
uit
dance
directed by motion to the United States Cou of Appea for the S
with Rule 24 of the Federal Rule of Appella Procedur This actio shall rem closed.
e
F
es
ate
re.
on
main
IT IS SO ORD
T
DERED.
DATED:
:

May 17, 2017
1
Roche
ester, New York
Y
__________
__________
___________
__________
_
HON. FRAN P. GER
ANK
RACI, JR.
Chief Judge
e
United State District C
es
Court

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