Griggs v. Schmauss et al
Filing
11
DECISION AND ORDER granting in part and denying in part 10 Motion to Vacate. Plaintiff's Motion to Vacate is granted with respect to the Judgment entered in favor of Defendant R. Schmauss and denied as to the remaining defendants. Plaintiff s hall file a second amended complaint against R. Schmauss only, no later than thirty (30) days from entry of this Decision and Order, at which time the Court will screen it under 28 U.S.C. §§ 915(e)(2)(B)(ii) and 1915A(b). Signed by Hon. Michael A. Telesca on 1/4/19. A copy of this Decision and Order was sent to the Plaintiff on today's date by first-class U.S. Mail. (AFB)
PS
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
PERRY GRIGGS,
Plaintiff,
-vs-
6:17-cv-06456-MAT
DECISION AND ORDER
R.
SCHMAUSS,
DDS;
Maureen
Keller, RDH; R. Tenbrink, DDS;
Stewart Eckert,
Superintendent,
Defendants.
___________________________________
INTRODUCTION
This
is
a
pro
se
action
instituted
by
Perry
Griggs
(“Plaintiff” or “Griggs”), an inmate in the custody of the New
York State Department of Corrections and Community Supervision,
who alleges deprivations of his constitutional rights pursuant to
42 U.S.C. § 1983. Specifically, Plaintiff alleges that he was
denied access to adequate dental care in violation of the Eighth
Amendment to the United States Constitution.
On initial screening
under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, the found that the
Amended Complaint failed to state a claim upon which relief could
be granted because it lacked plausible allegations pertaining to
the subjective component of an Eighth Amendment claim.
6.
Docket No.
Judgment was entered dismissing the Amended Complaint with
prejudice.
1
Presently before the Court is Plaintiff’s Motion to Vacate
the Judgment based on newly discovered evidence. For the reasons
set forth below, the Motion to Vacate the Judgment is granted as
to defendant R. Schmauss, DDS (“Dr. Schmauss”) only. The remaining
defendants are dismissed based on Plaintiff’s failure to plausibly
allege their personal involvement in the asserted constitutional
violation. Plaintiff will be directed to file a second amended
complaint against Dr. Schmauss within thirty (30) days of entry of
this Decision and Order.
DISCUSSION
Plaintiff’s Motion relies on Federal Rule of Civil Procedure
Rule 60(b)(2) (“Rule 60(b)(2)”), which provides that relief from
a final judgment or order may be granted based on “newly discovered
evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b) [,
i.e., 28 days].”
Fed. R. Civ. P. 60(b)(2). A motion under Rule
60(b)(2) must be made within year after the judgment. Fed. R. Civ.
P. 60(c)(1). Here, Plaintiff’s motion was made well within a year
of the Court’s judgment.
To succeed on a Rule 60(b)(2) motion based on newly discovered
evidence, the moving party must show that “‘(1) newly discovered
evidence is of facts existing at the time of [the prior decision];
(2) the moving party is excusably ignorant of the facts despite
using due diligence to learn about them; (3) the newly discovered
2
evidence is admissible and probably effective to change the result
of the former ruling; and (4) the newly discovered evidence is not
merely cumulative . . . of evidence already offered.’”
Tufts v.
Corp. of Lloyd’s, 981 F. Supp. 808, 812 (S.D.N.Y. 1996) (quoting
Mancuso v. Consol. Edison Co. of N.Y., Inc., 905 F. Supp. 1251,
1264
(S.D.N.Y.
1995)).
The
evidence
must
be
“‘truly
newly
discovered or . . . could not have been found by due diligence.’”
Ins. Co. of N. Am. v. Pub. Serv. Mut. Ins. Co., 609 F.3d 122, 131
(2d Cir. 2010) (quoting United States v. Potamkin Cadillac Corp.,
697 F.2d 491, 493 (2d Cir. 1983)).
Plaintiff’s newly discovered evidence consists of a statement
signed
by
Robert
Moore
(“Moore”),
a
fellow
inmate
at
Wende
Correctional Facility (“Wende”) regarding remarks Moore overheard
defendant Dr. Schmauss make at the time of the alleged denial of
adequate dental care. In relevant part, Moore states as follows:
“On or about December 4, 2014. I overheard Dr. Schmauss say[,]
‘this fucking guy Griggs again.’
co-worker.
I assumed he was referring to a
He then said ‘I’m gonna make sure that he (Griggs)
never gets his cavities filled until[] hell [f]reezes over.’ ”
Docket No. 10 at 3.
Moore’s affidavit is not sworn but contains
the
Notary
notation,
witnessed
by
“No
two
other
identification numbers.
Available.”
inmates
Id.
3
who
Moore’s
signature
provide
their
is
DOCCS’
The
Court
requirement
of
finds
a
that
Rule
Plaintiff
60(b)(2)
has
claim
satisfied
insofar
as
the
first
the
newly
discovered evidence consist of facts existing at the time of the
Court’s prior decision. Tufts, 981 F. Supp. at 812. That is, Moore
overheard the alleged remarks by Dr. Schmauss in 2014, and the
Court’s prior decision was issued in 2018. Thus, Dr. Schmauss’s
alleged remarks were in existence at the time of the Court’s prior
decision, although they were unknown to Plaintiff at that time.
The Court also finds that Plaintiff has fulfilled the second
requirement
of
a
Rule
60(b)(2)
claim,
which
pertains
to
the
litigant’s exercise of diligence. Plaintiff claims he had no
knowledge of the existence of this “newly discovered evidence” and
was unable to “produce any witness to these facts previously.”
Docket No. 10 at 2. Despite making a “diligent search [and] inquiry
for a witness and evidence . . . [he] could not find or learn of
no one by whom these facts could be proved.”
Id. The Court finds
that
at
this
explanation
is
plausible
since,
the
time
Moore
allegedly overheard Dr. Schmauss threaten to deny Plaintiff dental
care, Plaintiff was not present. Thus, it is entirely plausible
that Plaintiff had no knowledge of Moore’s existence as a potential
witness at the time he filed his complaint.
The Court next turns to the third requirement of a Rule
60(b)(2) claim, which incorporates the concepts of admissibility
and materiality.
Given the particular procedural status of this
4
case, the Court finds that this requirement is satisfied. Although
the unsworn nature of Moore’s statement is a potential barrier to
admissibility, it bears nothing that the Court is simply being
asked to reconsider its ruling on an initial screening order of a
pro se complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. Had
Plaintiff quoted the alleged remarks overhead by Moore in a prior
complaint, they likely would have been sufficient to at least allow
the claim to survive initial screening under the lenient standard
the Court must utilize. See Cusamano v. Sobek, 604 F. Supp. 2d
416, 445 (N.D.N.Y. 2009) (noting that “generally the pleadings of
pro se litigants are construed with even more liberality than is
required under Fed. R. Civ. P. 8, which requires all pleadings to
be construed to do “substantial justice”). To plausibly allege the
subjective component of a claim for deliberate indifference, an
inmate
must
assert
that
the
care
provider
consciously
and
intentionally disregarded or ignored a serious dental need of which
the provider was aware.
Chance v. Armstrong, 143 F.3d 698, 702
(2d Cir. 1998). The remarks allegedly made by Dr. Schmauss are
relevant to his knowledge of Plaintiff’s serious dental condition
and his (potentially) culpable state of mind. Thus, they are
“‘probably effective,’” Tufts, 981 F. Supp. at 812 (quotation
omitted), to alter the Court’s previous ruling.
With regard to the fourth requirement of a Rule 60(b)(2)
claim, the Court finds that the newly discovered evidence is not
5
cumulative essentially for the reasons stated in the foregoing
paragraph.
Plaintiff’s
allegations
regarding
the
subjective
component of a deliberate indifference claim were lacking; the
written statement from Moore “filled in” this gap in the pleadings.
Finally, bearing in mind the need for balancing “the policy
in favor of hearing a litigant’s claims on the merits against the
policy in favor of finality[,]” Kotlicky v. U.S. Fidelity & Guar.
Co., 817 F.2d 6, 9 (2d Cir. 1987) (citations omitted), the Court
finds that it should decide the Rule 60(b)(2) motion in favor of
hearing the case on the merits. Whether the remarks were actually
made by Dr. Schmauss is not the issue upon screening; the only
issue is whether the allegations, accepted as true, state a claim
that is plausible on its face. Erickson v. Pardus, 551 U.S. 89,
93-94 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555-56 (2007)); see also, e.g., Chance v. Armstrong, 143 F.3d at
704
(“[E]ven if we think it highly unlikely that [the plaintiff]
will be able to prove his allegations, that fact does not justify
dismissal for failure to state a claim, for ‘Rule 12(b)(6) does
not countenance . . . dismissals based on a judge's disbelief of
a
complaint’s
factual
allegations.’”)
(quoting
Neitzke
v.
Williams, 490 U.S. 319, 327 (1989); ellipsis in original).
CONCLUSION
Plaintiff’s Motion for Relief from Judgment, Docket No. 10,
is granted with respect to the Judgment entered in favor of
6
Defendant R. Schmauss.
undisturbed.
Plaintiff
The Judgment in all other respects remains
shall
file
a
second
amended
complaint
against R. Schmauss only, no later than thirty (30) days from entry
of this Decision and Order, at which time the Court will screen it
under 28 U.S.C. §§ 915(e)(2)(B)(ii) and 1915A(b).
SO ORDERED.
s/ Michael A. Telesca
___________________________________
Michael A. Telesca
United States District Judge
DATED:
January 4, 2019
Rochester, New York.
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