Baxter v. Bradley
DECISION AND ORDER Defendant's motion for summary judgment 30 is granted, and the complaint is dismissed. Signed by Hon. David G. Larimer on 9/7/2021. Copy of this Decision and Order sent by First Class Mail to plaintiff Jason Baxter on 9/7/2021 to his address of record. (KAH)-CLERK TO FOLLOW UP-
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOSEPH E. BRADLEY,
Plaintiff Jason Baxter, an inmate in the custody of the New York State Department of
Corrections and Community Supervision, commenced this pro se civil rights action on February
6, 2019. The amended complaint asserts two claims under 42 U.S.C. § 1983 against a single
defendant, Correction Captain Joseph E. Bradley. Both claims allege due process violations in
connection with a February 5, 2018 disciplinary hearing at which Bradley was the hearing
Bradley has filed a motion for summary judgment in lieu of an answer. Plaintiff has not
responded to the motion. For the reasons that follow, the motion is granted, and the complaint is
The amended complaint gives a date of February 5, 2018 for the first claim, and February 5, 2019 for the
second claim, but both claims arise out of the same hearing. Dkt. #4 at 5. As explained below, it is clear that the
correct date is February 5, 2018.
On July 13, 2021, the Court issued a Decision and Order (Dkt. #29) granting defendant’s motion to vacate
the Clerk’s entry of default. Plaintiff filed a notice of interlocutory appeal from that order on July 21, 2021 (Dkt.
“The rule in the Second Circuit is that an appeal from a nonappealable order does not divest the District
Court of jurisdiction.” Holmes v. NBC/GE, 168 F.R.D. 481, 482 (S.D.N.Y. 1996) (citing Leonhard v. United States,
633 F.2d 599, 609-10 (2d Cir. 1980)), aff’d, 133 F.3d 907 (2d Cir. 1997). See, e.g., Wang v. New York, No. 18-CV2154, 2018 WL 3094939, n.2 (E.D.N.Y. June 21, 2018); Marrero v. Kirkpatrick, No. 08-CV-6237, 2010 WL
Case 6:19-cv-06105-DGL Document 34 Filed 09/07/21 Page 2 of 4
Federal Rule of Civil Procedure 56 provides that “a party may file a motion for summary
judgment at any time until 30 days after the close of all discovery.” Fed. R. Civ. P. 56(b).
“Although summary judgment is generally not appropriate until after some discovery has
occurred in a case, ... a motion for summary judgment in lieu of an answer is appropriate where
the facts are undisputed and no amount of discovery would change the outcome.” Smith v.
United States Dep’t of Justice, No. 18-CV-03371, 2021 WL 2480412, at *3 (S.D.N.Y. June 17,
2021) (citing Green v. Harris, 309 F.Supp.3d 10, 12 (W.D.N.Y. 2018)); see also Anderson v.
Rochester-Genesee Reg'l Transp. Auth., 337 F.3d 201, 202 (2d Cir. 2003) (procedurally proper to
move for summary judgment in lieu of an answer).
Where, as here, a pro se litigant fails to oppose a motion for summary judgment, the
motion may be granted as unopposed only “if: (1) the plaintiff has received adequate notice that
failure to file any opposition may result in dismissal of the case; and (2) the Court is satisfied that
the facts as to which there is no genuine dispute show that the moving party is entitled to
judgment as a matter of law.” McNair v. Ponte, No. 17-CV-02976, 2020 WL 3402815, at *3
(S.D.N.Y. June 18, 2020) (quoting Warren v. Chem. Bank, No. 96-CV-06075, 1999 WL
1256249, at *2 (S.D.N.Y. Dec. 22, 1999)).
335354, n.1 (W.D.N.Y. Jan. 29, 2010). In addition, even properly taken interlocutory appeals do not divest the
district court of jurisdiction over matters not involved in the appeal. See Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58 (1982); New York State NOW v. Terry, 886 F.2d 1339, 1350 (2d Cir. 1989); City of N.Y. v.
Beretta U.S.A. Corp., 234 F.R.D. 46, 50 (E.D.N.Y. 2006).
Because this Court’s Decision and Order vacating the entry of default is non-appealable, see Joseph v.
Office of Consulate Gen’l of Nigeria, 830 F.2d 1018, 1028 (9th Cir. 1987) (“A district court’s grant of a motion to set
aside a default judgment is not an appealable final order”); Clark v. Barksdale, 798 F.2d 468 (6th Cir. 1986) (same),
and because the matters raised in plaintiff’s (improper) appeal are wholly collateral to those raised in Baxter’s
present motion, this Court has jurisdiction to decide the motion.
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In the case at bar, plaintiff was put on notice of his obligation to respond to defendant’s
motion and the consequences of failing to do so, both by defendant (Dkt. #30-2) and by the Court
(Dkt. #33). The Court may therefore proceed to consider the motion, accepting the truth of the
matters asserted by defendant. Those facts are clear, and they establish both that defendant’s
motion is properly brought and that Baxter is entitled to summary judgment.
In a nutshell, the records submitted by defendant (Dkt. #30-3) show that on February 5,
2018, a hearing was held before Baxter on a misbehavior charge issued against plaintiff. At that
time, plaintiff was confined to the Special Housing Unit (“SHU”), pursuant to a sentence on a
prior, unrelated charge.
Baxter found plaintiff guilty, and sentenced him to 180 days in SHU. On plaintiff’s
administrative appeal, Baxter’s determination was reversed, and a rehearing was ordered. A
second hearing was conducted on April 30, 2018, plaintiff was again found guilty, and he was
sentenced to 120 days in SHU. Plaintiff began serving that sentence on May 2, 2018, when his
sentence on the abovementioned prior charge expired.
In other words, plaintiff never served a single day in SHU as a result of the February 5
hearing and guilty finding. All of his SHU time was the result of the prior, unrelated sentence
and the 120-day sentence he received pursuant to the rehearing.
This Court addressed a similar set of circumstances in Allah v. Ryan, 436 F.Supp.3d 621
(W.D.N.Y. 2020). In that case, the inmate asserted a due process claim relating to a May 2013
disciplinary hearing. As here, the hearing officer’s disposition was reversed on appeal. The
proof showed, however, that plaintiff had already been sentenced on other, unrelated charges to
more SHU time than he could possibly serve, so that “the SHU sentence imposed as a result of
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that [May 2013] hearing had no practical effect.” Id. at 630. In granting the defendants’ motion
for summary judgment, this Court stated, “There is thus no evidence that plaintiff ever served
any SHU time or suffered other adverse consequences as a result of the May 2013 hearing.
Absent some concrete harm, plaintiff has no due process claim.” Id.
The same reasoning applies here. This is not a case in which a prisoner’s sentence was
reversed after he served all or part of a sentence. At the time the February 5 sentence was
reversed, plaintiff was still serving his prior, unrelated sentence. Since plaintiff can show no
harm occasioned by the February 5 hearing and sentence, there is no basis for a due process
Defendant’s motion for summary judgment (Dkt. #30) is granted, and the complaint is
IT IS SO ORDERED.
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
September 7, 2021.
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