Griggs v. Schmauss et al

Filing 9

ORDER denying 8 Motion for Reconsideration and further ordered that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Signed by Hon. Michael A. Telesca on 5/25/18. (Copy of this Order sent by first class mail to Plaintiff.) (JMC)

PS
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
PERRY GRIGGS,
Plaintiff,
-v-

17-CV-6456 MAT
ORDER

R. SCHMAUSS, et al.,
Defendants.
___________________________________
INTRODUCTION
On April 12, 2018, the Court, upon screening of the pro
se Plaintiff’s Amended Complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A, entered a Decision and Order
dismissing the Amended Complaint with prejudice based on
its failure to state a claim upon which relief can be granted.
Docket No. 6.

Judgment was entered that same date

dismissing the Amended Complaint. Docket No. 7. Plaintiff
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has filed a Motion for Reconsideration, pursuant to Fed. R.
Civ. P. 60(b), of that Decision and Order. Docket No. 8. For
the following reasons, the motion is denied.
DISCUSSION
The Court had found initially upon screening of
Plaintiff’s original Complaint that it failed to state a claim
upon which relief could be granted based on an alleged
denial of adequate dental care in violation of the Eighth
Amendment to the United States Constitution, but granted
Plaintiff leave to file an amended complaint. Docket No. 4.
Specifically, the Court found that while Plaintiff had alleged
sufficiently that he suffered from a serious dental need, he
failed to allege that Defendants were deliberately indifferent
to that need. Id. at 2.1

1

Page references are to those generated by the Court’s Case Management and Electronic Case Filing System
(“CM/ECF).

2

Plaintiff filed an Amended Complaint on February 20,
2018.

Docket No. 5. Upon review of the Amended

Complaint, the Court found that the Amended Complaint,
“in all substantive respects,” was identical to the original
Complaint, except that it added as a Defendant the
Superintendent of the Wende Correctional Facility, Stewart
Eckert, and alleged that Eckert had failed to “‘set up’
policies to guide his subordinates ‘so that violations for
constitutional rights do not occur.’ ” Docket No. 6 at 4-5
(quoting Docket No. 5 at 5-6).
Because the Amended Complaint did not assert any
additional substantive allegations against the original
Defendants—Schmauss, Tenbrink, and Keller—regarding
how they were allegedly deliberately indifferent to Plaintiff’s
dental needs, the Court found that the Amended Complaint
failed to state a claim upon which relief could be granted
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against them. Docket No. 6 at 5. The Court also found that
the Amended Complaint failed to allege that Eckert was
personally involved in the alleged denial of adequate dental
care. Id. at 5-6.
Rule 60(b) of the Federal Rules of Civil Procedure sets
forth the grounds on which a court, in its discretion, can
rescind or amend a final judgment or order. It provides, in
pertinent part:
On motion and just terms, the court may relieve a
party or its legal representative from a final
judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence
...; (3) fraud ..., misrepresentation, or misconduct
by an opposing party; (4) the judgment is void; (5)
the judgment has been satisfied, released, or
discharged, ...; or (6) any other reason that
justifies relief.
Properly applied, Rule 60(b) strikes a balance between
serving the ends of justice and preserving the finality of

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judgments.

House v. Secretary of Health and Human

Services, 688 F.2d 7, 9 (2d Cir. 1982); Seven Elves, Inc. v.
Eskenazi, 635 F.2d 396, 401 (5th Cir. 1981).

In other

words, it should be broadly construed to do “substantial
justice,” see Seven Elves, 635 F.2d at 401, yet final
judgments should not “be lightly reopened.” Id.; see also
Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir.
1984). Rule 60(b) may not be used as a substitute for a
timely appeal. United States v. O'Neil, 709 F.2d 361, 372
(5th Cir. 1983); Rinieri v. News Syndicate Co., 385 F.2d
818, 822 (2d Cir. 1967).

Since Rule 60(b) allows

extraordinary judicial relief, it is invoked only upon a
showing of exceptional circumstances. See Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988);
Nemaizer, 793 F.2d at 63.

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Here, the Court finds that there is no basis to
reconsider its Decision and Order dismissing the Amended
Complaint. Plaintiff’s Motion does not demonstrate that
there has been a mistake, inadvertence, surprise,
excusable neglect, fraud, misrepresentation or newly
discovered evidence. See Fed. R. Civ. P. 60(b)(1)-(5). Nor
has

Plaintiff

established

exceptional

circumstances

justifying the relief he seeks. See Nemaizier, 793 F.2d at
63. Plaintiff’s Motion for Reconsideration contends that his
Amended Complaint

did,

in fact,

allege additional

allegations against Schmauss, Tenbrink and Keller related
to their deliberate indifference to his dental needs.

He

claims that the Amended Complaint alleged further details
regarding the number of times his appointment to have his
cavities filled was rescheduled by Defendants. Specifically,
he states he alleged two additional times his appointment
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was rescheduled, March 24 to May 3, 2016, and May 3,
2016 to June 17, 2016. Docket No. 8 at 2.
The Decision and Order dismissing the Amended
Complaint had summarized Plaintiff’s claims in the original
Complaint as follows,
Schmauss had conducted a dental exam on
December 4, 2014, and determined that Plaintiff
needed four dental fillings, but that only one filling
was performed by Schmauss at that time. A year
later, on December 2, 2015, Defendant Keller, a
dental hygienist, allegedly conducted an exam at
which time she noted problems with the same four
teeth. She also noted a previous notation of
“possible decay” of the same teeth. On January
29, 2016, Defendant Dr. Tenbrink conducted
another exam and scheduled an appointment for
March 24 to fill two teeth. The appointment was
allegedly rescheduled several times until one tooth
was extracted on June 9, 2017.
ECF No. 6 at 1-2 (citation omitted) (emphasis added). The
Court found that based on these allegations, Plaintiff had

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failed to allege deliberate indifference but granted Plaintiff
leave to file an amended complaint.
The Amended Complaint’s addition of additional
specific dates that his appointment to fill his cavities was
rescheduled does not, in any way, alter the conclusion that
Plaintiff failed to state a plausible claim for relief under the
Eighth Amendment.

Simply stated, Plaintiff has not

demonstrated a basis to reconsider the Court’s Decision
and Order dismissing the Amended Complaint and the
Motion for Reconsideration must be denied.
ORDER
IT HEREBY IS ORDERED, that Plaintiff’s Motion for
Reconsideration is denied; and
FURTHER, that the Court certifies, pursuant to 28
U.S.C. § 1915(a)(3), that any appeal from this Order would

8

not be taken in good faith, and leave to appeal to the Court
of Appeals as a poor person is denied.
SO ORDERED
S/Michael A. Telesca
_________________________
Honorable Michael A. Telesca
United States District Judge
DATED: May 25, 2018
Rochester, New York

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