Locenitt v. LaBrake et al

Filing 21

ORDER denying 10 Motion to Dismiss. SO ORDERED. Plaintiff has been mailed this Order at his address of record. Signed by Hon. Frank P. Geraci, Jr. on 3/31/2016. (BD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KIAZA LOCCENITT
Plaintiff,
DECISION AND ORDER
v.

Case# 14-CV-6703-FPG

LABRAKE, et al.,
Defendants.

Before the Court is a motion to dismiss filed by the Defendants in this action. ECF No.

10.

BACKGROUND
Plaintiff brings this action pro se under 42 U.S.C. § 1983. In short, he alleges that on
August 27, 2014, various officials at Five Points Correctional Facility, located in Romulus, New
York, used excessive force and thus violated his civil rights. ECF No. 1 at 1-5.
At issue in the pending motion is Plaintiff's answer to a question on the form complaint
provided to prisoners filing § 1983 actions. The pertinent question on the form complaint asks as
follows: "Have you filed other lawsuits in state or federal court otherwise relating to your
imprisonment?" Id at 8. Plaintiff checked the "Yes" box, and indicated that he had filed one
other lawsuit in federal court, Loccenitt v. Warden of GRVC, et al., 1:2012-cv-948 (Feb. 3,
2012). 1 Id.
Defendants assert that Plaintiff had, in actuality, filed at least six other lawsuits in state or
The date in this citation refers to when the action was filed. Notably, Plaintiff styled this
case in the form complaint as "Kiaza Loccenitt v. NYC. et. al., 12 Civ. 948 (LTS) (MHD)."
ECF No. 1 at 8.

federal court relating to his imprisonment. ECF No. 17 at

if 3. Accordingly, Defendants now

move to dismiss the Complaint as a sanction for Plaintiff "omitt[ing] material information from
the Complaint pertaining to his litigation history, [thus] rendering the Complaint materially
misleading." ECF No. 10-2 at 2. Though the Defendants do not cite Rule 11 of the Federal
Rules of Civil Procedure in their papers, the only reasonable basis for their motion to dismiss is
Rule 11. See Dolberry v. Correction Officer Silvernail, 620 F. App'x 34, 35 (2d Cir. 2015).
DISCUSSION

Defendants' motion fails for two reasons. First, while Rule 11 does empower the Court
to sanction a party for baseless or false representations, see Fed. R. Civ. P. l l(b), this power is
subject to an important safe-harbor provision. In short, provision (c)(2) of Rule 11 requires a
party moving for sanctions to first serve the motion on the opposing party before submitting it to
the Court. See Fed. R. Civ. P. ll(c)(2). Then,

if the opposing party does not correct the

challenged assertion within twenty-one days of service, then the motion for sanctions can be
submitted to the Court. See id.

Accordingly, for Defendants to have properly brought this

motion for sanctions, they needed to have served the motion on Plaintiff twenty-one days before
filing it with the Comi. Such service would have given Plaintiff an opportunity to correct the
error on the form complaint regarding his litigation history.
There is no indication that the Defendants served the pending motion on Plaintiff twentyone days before filing it with the Court. Indeed, per the certificate of service that Defendants
filed along with their motion to dismiss (ECF No. 10 at 2), Defendants served Plaintiff with this
motion on the exact same day, August 6, 2015, that they filed it with the Court. Accordingly,
Defendants' motion is procedurally improper and must be denied. See Perpetual Sec., Inc. v.
Tang, 290 F.3d 132, 142 (2d Cir. 2002) (observing that a district court abuses its discretion by

2

imposing Rule 11 sanctions on a party when the movant has not complied with the 11 (c)(2) safe
harbor provision).
There is also a second independent reason why the motion must be denied. In short, the
Second Circuit recently found that a question very similar to the one Plaintiff wrongfully
answered is at least arguably ambiguous, especially to a pro se litigant. See Dolberry, 620 F.
App'x at 36-37.
The facts in Dolberry are strikingly similar to the facts at hand. In Dolberry, a court in
the Northern District of New York dismissed a complaint as a sanction after the prisoner-plaintiff
misrepresented his litigation history on a form complaint. Id. at 35.

On the form, the prisoner

answered "No" when asked "Have you begun any other lawsuits in federal court which relate to
your imprisonment?" Id. The prisoner had, in actuality, previously filed seven other lawsuits in
federal court. Id.
On appeal, the Second Circuit found that the district court had abused its discretion in
dismissing the complaint as a sanction. Id. at 37. It noted that the prisoner was confused by the
question; he had apparently interpreted it as asking whether he had (a) previously filed other
lawsuits "related to the reasons of his imprisonment" or (b) previously filed other lawsuits
related to the "the imprisonment one is recently lock [sic] up for." Id. at 36. Under these two
apparent interpretations, the prisoner had truthfully answered "No" to the question of whether he
had "begun any other lawsuits in federal court." Id. at 35-36. In short, the Second Circuit
observed that the wording of the question was "sufficiently ambiguous to a pro se litigant" to
have understandably elicited a "No" answer. Id. at 36. Thus, it reversed the district court's
dismissal of the complaint based on Rule 11. Id. at 37.
In the case at hand, Plaintiff similarly asserts that he misinterpreted a functionally
equivalent question on the form complaint at issue.
3

ECF No. 14 at 3-4.

Plaintiff's main

argument is that he did not list lawsuits relating to his incarceration at Rikers Island and/or in
New York City because he thought the question only asked for lawsuits relating to his
incarceration at "N.Y.S. D.O.C.," i.e., the New York State Department of Corrections and
Community Supervision. Id. Defendants attempt to parse this argument and conclude that it is
internally inconsistent, but in light of Dolberry, the Court finds that Plaintiff could indeed have
reasonably misconstrued the question.

Accordingly, Defendants' motion to dismiss is also

denied for this separate reason.
CONCLUSION

For the foregoing reasons, the motion to dismiss (ECF No. 10) is DENIED.
IT IS SO ORDERED.
DATED:

March 31, 2016
Rochester, New York

4