Nelson v. McGrain

Filing 59

ORDER denying 55 Motion for reconsideration. (Clerk to send copy of Decision and Order to plaintiff by first class mail.) Signed by Hon. Michael A. Telesca on 5/31/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JEFFREY NELSON,
Plaintiff,

DECISION AND ORDER
No. 6:12-cv-06292(MAT)

-vsCORRECTION OFFICER MARC McGRAIN,
Defendant.

I.

Introduction
Jeffrey A. Nelson (“Nelson” or “Plaintiff”), a prisoner in the

custody of New York State Department of Corrections and Community
Supervision (“DOCCS”), instituted this pro se action pursuant to
42

U.S.C.

§

1983

against

Correctional

Officer

Marc

McGrain

(“McGrain” or “Defendant”), an employee of DOCCS. Nelson alleges
that McGrain engaged in conduct that was violative of the Eighth
Amendment’s prohibition against cruel and unusual punishment and
the First Amendment’s prohibition against retaliation for protected
speech, namely, Plaintiff’s filing of grievances against prison
staff.
II.

Procedural Status
McGrain

moved

for

summary

dismissing

the

complaint

on

August 30, 2012, which this Court granted in a decision and order
(Dkt

#11)

dated

October

22,

2013.

Nelson

appealed

to

the

United States Court of Appeals for the Second Circuit, which
granted Nelson leave to proceed in forma pauperis on May 8, 2014,

only with respect to his First Amendment retaliation claim, and
dismissed the appeal in all other respects.
On March 5, 2015, the Second Circuit issued an order (Dkt #19)
vacating in part this Court’s decision and order granting summary
judgment

in

favor

of

Defendant

and

dismissing

Plaintiff’s

complaint. See Nelson v. McGrain, No. 13-4226-pr (2d Cir. Mar. 5,
2015) (summary order). In particular, the Second Circuit “vacate[d]
the judgment insofar as it awarded judgment on [Plaintiff]’s First
Amendment claim and remand[ed] for [this Court] to consider that
claim in the first instance[,]” and it “further directed [this
Court] to consider whether [Plaintiff]’s allegations, understood as
retaliation claims, excused any failure to exhaust administrative
remedies as to his [1] sexual assault allegations and his [2] claim
that false misbehavior reports were filed against him[,]” pursuant
to Hemphill v. New York, 380 F.3d 680, 686-90 (2d Cir. 2004). (See
Dkt #19, p. 4).
On March 10, 2015, this Court issued an order (Dkt #17)
requesting that the parties submit additional briefing on the
issues identified by the Second Circuit in its order, namely,
(1) the merits of Plaintiff’s First Amendment retaliation claim
that

the

Second

Circuit

discerned

in

Plaintiff’s

pleadings,

(2) whether Plaintiff’s First Amendment retaliation claim excuses,
under Hemphill, 380 F.2d at 686-90, Plaintiff’s failure to exhaust
his administrative remedies as to the following claims (a) his
Eighth Amendment claim based on the alleged sexual assault upon him

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by Defendant, and (b) his due process claim that false misbehavior
reports

were

filed

against

him.

The

order

indicated

that

Defendant’s additional briefing was due 30 days from the date of
entry; Plaintiff’s additional briefing was due 30 days from the
date of his receipt of Defendant’s briefing, but in no event later
than May 11, 2015, at which time the matter would be deemed
submitted without oral argument. The order invited the parties to
submit any supplemental documents that would assist the Court in
resolving the identified issues.
On April 9, 2015, Defendant filed his memorandum of law
(Dkt #18). With regard to the exhaustion issue, Defendant argued
that none of the Hemphill exceptions to the exhaustion requirement
applied because (1) Plaintiff made no claim that administrative
remedies were unavailable to him given that he acknowledged filing
multiple grievances in the days prior to the alleged incident;
(2) Defendant timely raised the exhaustion defense and therefore
could not be deemed to have waived it; and (3) no “special
circumstances” existed that could justify Plaintiffs failure to
exhaust.
The Second Circuit’s order was not issued as a mandate until
April 9, 2015; it was entered on this Court’s docket (Dkt #19) on
April 10, 2015.
On April 15, 2015, the Court reissued a scheduling order
requesting additional briefing (Dkt #20), as there was a question
as to whether Plaintiff had received the prior scheduling order due

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to his transfer between facilities.1 The April 15, 2015 order (Dkt
#20) indicated that Defendant’s additional briefing was due 30 days
from the date of entry; Plaintiff’s additional briefing was due
30 days from the date of his receipt of Defendant’s briefing, at
which time the matter would be deemed submitted.
On April 21, 2015, the Court received Plaintiff’s response
(Dkt #22) to Defendant’s April 9, 2015 memorandum of law. Pursuant
to the prison mailbox rule, the response was deemed to have been
filed on April 17, 2015, the date on which Plaintiff mailed the
document. Plaintiff indicates that he had received Defendant’s
memorandum but that he had not received permission from the Court
to file a submission, which confirmed that Plaintiff had not yet
received

either

of

the

Court’s

scheduling

orders

(Dkt

#17,

Dkt #20).
On May 28, 2015, the Court received Plaintiff’s memorandum of
additional briefing (Dkt #24), with exhibits, in regard to the
Court’s scheduling orders (Dkt #17, Dkt #20).
On November 24, 2015, the Court issued a decision and order
(Dkt #25) declining to grant summary judgment to Defendant on
Plaintiff’s

First

Plaintiff’s

Eighth

Amendment
Amendment

retaliation
claims

claim

that

had

and

reinstating

been

previously

dismissed based on the failure to exhaust administrative remedies.

1

The Court’s CM/ECF system reflects a docket notation on April 20, 2015,
that Plaintiff’s address was updated from Attica Correctional Facility to Wende
Correctional Facility (“Wende”). On that date, copies of Dkt #17 through Dkt #21
were re-sent to Plaintiff at Wende.

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Defendant filed an answer to the complaint on December 8, 2015
(Dkt #26). Discovery has been proceeding

over the past two and

half years before Magistrate Judge Jonathan W. Feldman.
On November 10, 2016, Defendant filed a motion for a hearing
(Dkt #34) before Magistrate Judge Feldman to determine whether
Plaintiff exhausted his administrative remedies. Citing the two
scheduling orders (Dkt #17, Dkt #20), Defendant argued that this
Court

(1)

never

provided

him

with

an

opportunity

to

rebut

Plaintiff’s exhaustion arguments, and (2) did not conclusively
decide the

exhaustion

issue in

its

November

24,

2015

order.

Defendant accordingly requested that Magistrate Judge Feldman hold
a hearing to determine whether Plaintiff actually exhausted his
administrative remedies. Plaintiff filed a document captioned as
“objection memorandum to the defendant’s motion to delay the
proceedings” (Dkt #36). Plaintiff argued that the Court did afford
Defendant an opportunity to respond to Plaintiff’s exhaustion
argument, and that the November 24, 2015 order conclusively decided
the exhaustion issue. Plaintiff also submitted that under the thenrecent Supreme Court decision in Ross v. Blake, ___ U.S. ___, 136
S. Ct. 1850 (2016), any failure to exhaust would be excused.
Defendant filed an attorney declaration (Dkt #37) in response on
November 28, 2016, arguing that this Court’s ruling that Defendant
failed to address Plaintiff’s exhaustion arguments was only for
purposes of that pre-discovery motion for summary judgment, and
would not preclude a hearing on exhaustion. Plaintiff filed what

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essentially was a sur-reply (Dkt #38), reiterating that the Court
afforded

Defendant

an

opportunity

to

respond

to

Plaintiff’s

arguments, and argued that Defendant’s motion was a delaying tactic
warranting the imposition of a monetary sanction.
On September 19, 2017, Magistrate Judge Feldman issued a
decision and order (Dkt #44) finding that Defendant’s motion for a
hearing

was,

in

substance

if

not

in

form,

a

motion

for

reconsideration of this Court’s November 24, 2015 decision and
order.

After

Magistrate

thoroughly

Judge

Feldman

canvassing

the

determined

relevant

that

he

did

case

law,

“not

have

jurisdiction to hear defendant’s motion—the import of which would
be to reconsider [this Court]’s decision—even with consent from the
parties.” (Dkt #44, p. 7 (footnote omitted)).
On January 3, 2018, Defendant filed a pleading captioned as a
“motion for clarification” (Dkt #55) of this Court’s November 24,
2015 decision and order (Dkt #25). Nelson filed a memorandum in
opposition (Dkt # 56), and Defendant filed a reply (Dkt #57).
For

the

reasons

discussed

below,

Defendant’s

motion

for

clarification is denied.
III. Discussion
A.

The Untimeliness of Plaintiff’s Submissions

Defendant contends that Plaintiff’s submissions in response to
the Court’s scheduling orders (Dkt #17, Dkt #20) amounted to
unauthorized sur-replies, and also were untimely. This argument
does not find support in the chronology of filings, detailed supra
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in Section II. After the Court’s first scheduling order (Dkt #17),
Defendant filed his response on April 9, 2015; Plaintiff’s response
was due 30 days from his receipt of that pleading. Even though
Plaintiff did not timely receive a copy of the scheduling order, he
nevertheless filed a response on April 16, 2015, which was within
30

days

of

his

receipt

of

Defendant’s

response.

The

Court

subsequently issued a second scheduling order; Defendant did not
file an additional response, although Plaintiff did file another
submission. This submission cannot be deemed a sur-reply because
Defendant never filed a reply.

In sum, Plaintiff’s submissions

were not untimely; nor were they unauthorized.
B.

The Proper Characterization of Defendant’s Motion

Plaintiff

contends

that

Defendant’s

motion

is

properly

characterized as a motion for reconsideration pursuant to Fed. R.
Civ. P. 59(e), and that it is untimely because it was not filed
within 30 days of the order in question. As Magistrate Judge
Feldman cogently explained, Defendant’s “arguments are directed
principally at the correctness of the [November 24, 2015] Decision.
Indeed, the parties seem to agree that the present dispute concerns
[this

Court]’s

documentation

finding
submitted

that
in

‘[b]ased

on

connection

the

allegations

with

and

Plaintiff’s

supplementary briefing, which Defendant has failed to address, the
Court concludes that Defendant is equitably estopped from asserting
the failure to exhaust.’ . . .” (Dkt #44, p. 6).

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Defendant maintains that he is simply seeking “clarification”
from the Court as to whether the November 24, 2015 ruling was “for
purposes of the motion only, and that he may pursue, in motions or
at a hearing, dismissal of all unexhausted claims.” (Dkt #55-1,
p.

3).

The

Defendant’s

Court
motion

agrees
is

with

more

Magistrate

properly

Judge

considered

Feldman
a

motion

that
for

reconsideration of the this Court’s decision denying Defendant’s
motion for summary judgment on the exhaustion issue. (Id.).
A motion for reconsideration “must be filed no later than 28
days after the entry of the judgment.” FED. R. CIV. P. 59(e). The
time limitation in Rule 59(e) “is uncompromisable[,]” Lichtenberg
v. Besicorp Grp. Inc., 204 F.3d 397, 401 (2d Cir. 2000), for [Fed.
R. Civ. P.] 6(b) provides, in pertinent part, that the district
court ‘may not extend the time for taking any action under Rules
50(b) and (c)(2), 52(b), 59(b), (d) and (e).’” Id. (quoting FED. R.
CIV. P. 6(b)(2)).
The question then becomes whether Defendant’s motion should be
recharacterized as a motion pursuant to Rule 60(b). The law in the
Second Circuit is clear that untimely Rule 59(e) motions may be
“properly considered a motion under [Rule] 60(b).” Branum v. Clark,
927 F.2d 698, 704 (2d Cir. 1991); see also, e.g., Kotlicky v.
United States Fidelity & Guar. Co., 817 F.2d 6, 8 (2d Cir. 1987)
(“Appellant . . . designated his motion as one brought pursuant to
Federal Rule of Civil Procedure 59. However, the motion should in
fact be treated as a Rule 60(b) motion, since it was filed more

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than ten days after the entry of judgment.”).

“Rule 60(b), in

turn, contains six bases for which a motion may be properly brought
for the general purpose of seeking ‘relief’ from ‘a final judgment,
order, or proceeding’ and prescribes a substantially lengthier
limitation period.” Ueno v. Napolitano, No. 04 CV 1873 (SJ)VVP,
2007 WL 1395517, at *2 (E.D.N.Y. May 11, 2007) (quoting FED. R. CIV.
P. 60(b)(1)-(6) (“The motion shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one year
after the judgment, order, proceeding was entered or taken.”)). In
deciding a Rule 60(b) motion, a court “must balance the policy in
favor of hearing a litigant’s claims on the merits against the
policy in favor of finality.” Kotlicky, 817 F.2d at 9 (citation
omitted). In furtherance of that goal, Rule 60(b) “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) (quotation and citations omitted). Moreover,
since Rule 60(b) “allows extraordinary judicial relief, it is
invoked only upon a showing of exceptional circumstances.” Id.
(collecting cases; emphasis supplied). The Second Circuit has
emphasized that Rule 60(b) “may not be used as a substitute for a
timely appeal.” Id. (collecting cases).
Cognizant of the Second Circuit’s directive that Rule 60(b)
should be “broadly construed” to do “substantial justice,” the
Court has considered Defendant’s argument that the Court acted
unfairly in not permitting him an opportunity to reply. Although it

-9-

is true that the Court’s scheduling orders did not provide for the
filing of reply pleadings, there is no reason why Defendant could
not have requested the Court to allow him to file an additional
submission addressing Plaintiff’s exhaustion arguments. Indeed, the
Court notes that prior to filing the instant motion, Defendant’s
attorney called the Court’s Chambers and verbally requested the
same relief sought in this application. Defendant certainly had
ample time2 in which to do so prior to the Court’s filing of the
order addressing the exhaustion issue. After the Court issued its
order on November 24, 2015, Defendant waited more than two years
before he filed his motion for clarification claiming that he had
been treated unfairly. All of these factors militate against a
finding that it is necessary to invoke Rule 60(b) to do substantial
justice. Moreover, Defendant has not demonstrated the existence of
exceptional circumstances, and none are apparent to this Court on
the present record. Absent a showing of exceptional circumstances,
the longstanding precedent in this Circuit makes clear that relief
under Rule 60(b) is not warranted. See, e.g., United States v.
Cirami, 563 F.2d 26, 30 (2d Cir. 1977) (“[T]he movant under Rule
60(b)(6)

must

show

‘exceptional

circumstances’

or

‘extreme

hardship.’”) (quotation omitted).

2

Plaintiff’s second submission was received on May 28, 2015. Thus,
approximately six months elapsed before the Court filed its order on November 24,
2015.

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IV.

Conclusion
For

the

clarification

foregoing
(Dkt

#55),

reasons,
which

in

Defendant’s
substance

is a

motion
motion

reconsideration, is denied.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

May 31, 2018
Rochester, New York.

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for
for