BROWN v. FOX et al

Filing 126

MEMORANDUM OPINION & ORDER that Plaintiffs motion for reconsideration 118 is DENIED. IT IS FURTHER ORDERED that Plaintiffs motion for status conference 125 is GRANTED. A status conference will be set by separate Order of this Court. Signed by Judge Susan Paradise Baxter on 1/7/19. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LAMAR BRO\VN,
Plaintiff

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vs.
FOX, et al,
Defendants.

C.A.No. 14-109ERIE

MEMORANDUM OPINION

District Judge Susan Paradise Baxter 1
Presently before this Court is Plaintiffs Motion for Reconsideration of the Memorandum
Opinion and Order granting partial summary judgment in favor of Defendants. ECF No. 118.

I.

Relevant Procedural History

Plaintiff, currently an inmate incarcerated within the Pennsylvania Department of
Corrections, filed this action in the Erie County Court of Common Pleas. Thereafter, Defendants
removed the action to this Court. As Defendants to the action, Plaintiff originally named
Department of Corrections employees Fox, Morendo, Lt. John Doe, Sgt. O'Brien, Dunmire,
Streichart, and John Doe 2. Plaintiff alleged that these Defendants violated his state and federal
rights in various ways.
By Memorandum Opinion and Order dated May 12, 2017, this Court granted a motion
for partial summary judgment in favor of Defendants on several claims including a state tort

The parties consented to having a United States Magistrate Judge exercise jurisdiction over this
matter in accordance with the provisions of 28 U.S.C. § 636, et seq. ECF No. 3; ECF No. 4.
When this case was initiated and originally assigned by the Clerk of Courts, the undersigned was
a Magistrate Judge. However, on September 14, 2018, the undersigned was elevated to the
position of United States District Judge and the case remained assigned to her.
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assault and battery claim against Fox and Marendo relating to an April 9, 2013 incident and state
tort/negligence claims against Streichart for the loss of two photo albums. ECF No. 111.
Summary judgment was granted on the assault and battery claim based upon the bar of sovereign
immunity, while summary judgment was granted in favor of Streichart as to the negligence claim
based upon Plaintiffs failure to exhaust in accordance with the requirements of the Prison
Litigation Reform Act. ECF No. 110, pages 9-10. Judgment was granted in favor of Defendants
Lt. John Doe, Dunmire, Streichart, and John Doe 2 and these Defendants were terminated from
the docket. As noted in that Opinion, Defendants did not move for summary judgment on two
other claims (an excessive force claims against Fox and Morendo arising out of the April 9, 2013
incident and a retaliation claim against O'Brien based on Plaintiffs placement in a hard cell) and
trial would be scheduled on those claims. Id. at fn.2.
Plaintiff, now represented by counsel, seeks reconsideration of that decision and seeks to
have the state law claims of negligence and assault and battery revived. ECF No. 118.
Defendants filed an untimely brief opposing the motion for reconsideration [ECF No. 121] and
Plaintiff filed a Reply brief [ECF No. 122]. 2

II.

Standard of Review
Motions for reconsideration are not explicitly recognized by the Federal Rules of Civil

Procedure. United States v. Compaction Sys. Corp., 88 F.Supp.2d 339, 345 (D.N.J. 1999).
However, a motion for reconsideration may be treated as a motion to alter or amend judgment
under Federal Rule 59(e) or as a motion for relief from judgment under Federal Rule 60(b). Id.
See also Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1352 (3d Cir. 1990) (recognizing that a

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Plaintiff has also filed a Response to the Concise Statement of Materials Facts. ECF No. 119.
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motion for reconsideration is usually the "functional equivalent" of a motion to alter or amend
judgment under Rule 59(e)).
"' Because federal courts have a strong interest in finality of judgments,"' "[m] otions for
reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure are granted sparingly."
Jacobs v. Bayha, 2011 WL 1044638, at *2 (W.D. Pa. Mar. 18, 2011) quoting Continental Cas.
Co. v. Diversified Indus., Inc., 884 F.Supp. 937,943 (E.D.Pa.1995). Furthermore, Rule 60(b)(6)
provides "extraordinary relief' that is only available in "exceptional circumstances." Coltec
Indus., Inc. v. Hobgood, 280 F.3d 262, 273 (3d Cir. 2002).
The moving party bears a heavy burden to demonstrate that any order should be
reconsidered and the Court will only grant such a motion if the moving party shows:
( 1) an intervening change in the controlling law;
(2) the availability of new evidence which was not available when the court
issued its order; or
(3) the need to correct a clear error of law or fact or to prevent a manifest
injustice.
Lazardis v. Wehmer, 591 F.3d 666,669 (3d Cir. 2010) quoting Max's Seafood Cafe ex rel. LouAnn, Inc. v. Quinteros, 176 F.3d 669,678 (3d Cir. 1999).

III.

Plaintifrs Motion for Reconsideration
Plaintiff moves for reconsideration so as to prevent "manifest injustice." ECF No. 120,

page 4. Plaintiff reasons that this Court should reconsider its prior grant of partial summary
judgment because the decision was based, at least in part, upon Plaintiffs failure to file a brief in
opposition to Defendants' motion. Plaintiff asserts that his failure to file an opposition brief
should be excused due to his erroneous belief that a motion for extension of time was pending

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and that he should now be allowed to make his arguments opposing the motion for summary
judgment.
Defendants filed their motion for partial summary judgment on November 21, 2016 [ECF
No. 103] and this Court directed Plaintiff to file an opposition thereto before December 9, 2016
[ECF No. l 07]. On December 14th, Plaintiff requested an extension of time in which to file his
opposition and that request was granted making Plaintiffs opposition due on January 17, 2017.
ECF No. 109. In his affidavit, Plaintiff swears that he filed a second motion for extension of time
on January 17, 2017, requesting additional time in which to file his opposition to the partial
motion for summary judgment. In support of this claim, Plaintiff has submitted a copy of the
motion for extension of time, dated January 17, 2017, in which he explains that he needs more
time to "finish his document" "due to the few holidays that have occurred during December and
January and prison lockdowns [during which] the prison's law library has been close quite
often." ECF No. 118-1, page 3 (emphasis added). Additionally, Plaintiff submitted a Cash Slip
for postage to the undersigned dated January 17, 2017, which further bolsters his contention that
he attempted to mail a motion for extension of time.
However, the docket reflects that the Court did not receive the second request for
extension of time. Plaintiff argues that because he followed proper procedures for filing the
second request for extension of time, he believed the motion was properly filed and based on his
past experience, he believed the motion would be granted. Then, "as a result," Plaintiff "waited
until hearing from the Court before filing a response to Defendants' motion for summary
judgment." ECF No. 118-1, 16. Plaintiff would have this Court believe that because he did not
hear back from the Court with an answer on his second request for extension of time, he did not
file his opposition brief. Despite Plaintiffs prior experience with this Court's quick resolution of

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motions for extension of time, Plaintiff did nothing from January until mid-May. It is a plaintiffs
responsibility to prosecute his own case and here, Plaintiff should have inquired as to the status
of his second motion for extension of time. He could have done so by a letter to the Clerk of
Courts or to the undersigned, by a request for a copy of the docket sheet, or by way of another
motion. Furthermore, Plaintiff could have filed his opposition at any point during those four
months before the Opinion and Order were issued on May 12, 2017. Plaintiffs inaction during
this time period is especially glaring when viewed against the entire docket as Plaintiff actively
participated in this case as a pro se litigant.
So, now after the prose Plaintiff sat on his rights for months, counsel for Plaintiff
requests that this Court excuse Plaintiffs failure to file an opposition brief and to reconsider the
motion for summary judgment with Plaintiffs arguments in opposition, along with a Response t
the Concise Statement of Material Facts. Plaintiff has not carried his heavy burden to justify
reconsideration of this Court's prior decision. United States v. Kubini, 2018 WL 4282852, at *9
(W.D. Pa. 2018) (internal citation omitted) ("Manifest injustice is a high burden for any party to
meet. [ ... ] in applying such a demanding standard, courts have consistently used a scrntinizing
hand."). To be clear, whether or not Plaintiff attempted to file the second request for additional
time is not the focus of this Court. Instead, it is Plaintiffs inaction during this time that fails to
meet the standard of manifest injustice. See Coulter v. Unknown Probation Officer, 2013 WL
3863938, at *2 (M.D. Pa. 2013) citing McDowell Oil Serv. Inc. v. Interstate Fire & Cas. Co., 817
F.Supp. 538, 541 (M.D. Pa. 1993) ("[R]econsideration motions may not be used to raise new
arguments or present evidence that could have been raised prior to the entry of judgment.");
Kubini, 2018 WL 4282852, at *9, quoting Rose v. Alternative Ins. Works, LLC, 2007 WL

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2533894, at * 1 (D.N.J. 2007) (manifest injustice "generally ... means that the court overlooked
some dispositive fact or legal matter that was presented to it.").
Nevertheless, even apart from Plaintiffs inaction and request to be excused therefrom,
his present arguments in support of reviving his state tort claims of negligence and assault and
battery bear no fruit.
In regard to the negligence claim based on the loss of photo albums (which was
previously deemed unexhausted), Plaintiff argues that because the Department of Corrections
resolved the merits of the grievance, the state waived the defense of untimeliness. However, the
record reflects that Plaintiffs pursuit of relief at Grievance 466778 was untimely at each of the
three levels of review. In other words, Plaintiff filed his initial grievance in an untimely manner
and Plaintiff filed both of his two appeals beyond the time period in which the DC-ADM
requires the appeal to be made. Each of Plaintiffs filings was untimely in its own regard. 3 While
the Department of Corrections denied the initial untimely grievance and the first untimely appeal
on their merits despite their untimeliness, it dismissed the final appeal (which was also itself
untimely) because it was untimely and because it failed to have the correct supporting
documentation. Because Plaintiff did not properly exhaust his administrative remedies, there is
no basis for the revival of this claim.

Under DC-ADM 804, a prisoner must submit an initial grievance within fifteen days of the
incident. The incident at issue here happened on April 9, 2015 and Plaintiff filed his grievance o
June 27 th . An imnate must submit a written appeal to intermediate review within ten working
days of the decision on the initial grievance; Plaintiff filed his untimely appeal on August 15t11,
despite receiving the denial of his initial grievance on July 25 th • An inmate's final appeal must
be submitted to the Secretary's Office of Inmate Grievances and Appeals ("SOIGA"), within
fifteen working days of the denial of the intermediate appeal. Plaintiff filed his untimely appeal
on September 24 11', despite receiving the denial of the intermediate appeal on August 29 th • See
ECFNo.105-s,,, ll-16.
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In regard to the assault and battery claim, Plaintiff argues that such a claim is not barred
by the sovereign immunity generally attached to Fox and Morendo as Department of
Corrections' employees because they acted outside the scope of their employment. However, the
affidavits of inmates Willie Travis and Christopher Brown (attached to the prose amended
complaint) demonstrate that the April 9th incident began when Fox and Morendo attempted to
break up a fight on a crowded walkway. ECF No. 12, pages 20, 25. As such, Fox and Morendo
are entitled to the protections of sovereign immunity as they were acting within the scope of thei
employment in attempting to defuse a potentially volatile situation. See Ortiz v. Baird, 2013 WL
1290555, at *9 (W.D. Pa. 2013) ("It cannot be disputed that it is the responsibility of prison
guards to maintain order and discipline as well as the safety and security of the guards, inmates,
and the facility as a whole.").
Finally, Plaintiff contends that there are three claims that remain in this case as
Defendants have not yet addressed them by way of any dispositive motion: l) a retaliation claim
against Fox and Morendo based on the April 9, 2013 incident; 2) a state law conspiracy claim;
and 3) a Fourteenth Amendment equal protection claim. ECF No. 122, page 3. 4 The viability of

Plaintiff cites to the following allegations from the amended complaint as supporting each of
these claims.
Retaliation and state conspiracy claims
"Fox and Morendo agreed to assault Plaintiff in retaliation for filing a lawsuit
against other Department of Corrections employees at SCI Somerset which
constitutes the state law claim of conspiracy under the law of Pennsylvania." [,
96]; and "The actions of Defendants Fox and Morendo assaulting Plaintiff for
filing a lawsuit on other Department of Corrections employees at SCI Somerset,
constitutes retaliation for using the court system in violation of the First
Amendment of the United States Constitution.", 98.
Equal protection claim
"Plaintiff being served nutritionally inadequate meals while housed in the
psychological observation cell that were smaller portions than the regular RHU
meal trays constituted cruel and unusual punishment in violation of the Eighth
Amendment and the Equal Protection Clause under the Fourteenth Amendment o
the United States Constitution.", 101.
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these potential claims will be discussed at the upcoming status conference which will be set by
separate order.

An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LAMAR BROWN,
Plaintiff

)
)
)
)
)
)
)

vs.

FOX, et al,
Defendants.

C.A.N o. 14-109ERIE

District Judge Baxter

ORDER

AND NOW, this 7th day of January, 2018;
IT IS HEREBY ORDERED that Plaintiffs motion for reconsideration [ECF No. 118] is
DENIED.
IT IS FURTHER ORDERED that Plaintiffs motion for status conference [ECF No. 125]
is GRANTED. A status conference will be set by separate Order of this Court.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States District Judge