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)

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  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 Servs., No. 14-4536, ECF No. 41 (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)) (unpublished order).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 2      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 3      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 4   

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