Opinion
6:16-CV-06470 EAW
2022-01-28
Denny DEJESUS, Plaintiff, v. Corrections Officer R. MALLOY, Defendant.
Jeremy M. Sher, Adams LeClair LLP, Rochester, NY, for Plaintiff. Hillel David Deutsch, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendant.
Jeremy M. Sher, Adams LeClair LLP, Rochester, NY, for Plaintiff.
Hillel David Deutsch, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
Pending before the Court is a motion filed by defendant Corrections Officer R. Malloy ("Defendant") for reconsideration of the Court's March 31, 2021 Decision and Order granting summary judgment in favor of Plaintiff on liability with respect to his Eighth Amendment claim for sexual assault (Dkt. 119 (the "March 31, 2021 D&O")). (Dkt. 120). For the reasons set forth below, Defendant's motion for reconsideration is denied.
I. Background
By virtue of the March 31, 2021 D&O, the Court assumes the parties’ familiarity with the factual and procedural background of the case. In the March 31, 2021 D&O, the Court denied Defendant's motion for summary judgment, which he sought on the "physical assault" aspect of Plaintiff's Eighth Amendment claim (Dkt. 119 at 13-17) and granted Plaintiff's motion for summary judgment on this issue that he was subject to a sexual assault by Defendant in violation of the Eighth Amendment (id. at 17-26). In granting Plaintiff's motion for summary judgment, the Court explained that Defendant failed to submit admissible evidence denying Plaintiff's statement of undisputed fact that on June 12, 2015, during a pat frisk, Defendant "placed his left hand in plaintiff[’]s pants grabing [sic] and squeezing plaintiff[’]s penis and testicals [sic] while pulling which caused the plaintiff to feel escruciating [sic] pain to the penis and testicals [sic]." (Dkt. 119 at 17 (quoting Dkt. 114 at 3-4, ¶ 2)). The Court explained that Defendant's three-page memorandum of law submitted in opposition to Plaintiff's motion for summary judgment was "wholly insufficient" to raise disputed issues of fact. (Id. at 18). Because Defendant failed to refute Plaintiff's version of events that he was sexually assaulted, and because Plaintiff's undisputed statement that he was sexually assaulted is otherwise supported by the record, including by Plaintiff's declaration and his deposition testimony, the Court granted summary judgment in his favor on that issue. (See id. at 17-18, 21).
II. Standard
As explained by the Second Circuit, "[t]he standard for granting a [motion for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc. , 70 F.3d 255, 257 (2d Cir. 1995). "The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent a manifest injustice." Virgin Atl. Airways v. Nat'l Mediation Bd. , 956 F.2d 1245, 1255 (2d Cir. 1992) (citation and quotation omitted). "These criteria are strictly construed against the moving party so as to avoid repetitive arguments on issues that have been considered fully by the court." Griffin Indus., Inc. v. Petrojam, Ltd. , 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999).
"A party ... may not use a motion for reconsideration to re-argue issues that have already been decided, present ‘new theories’ or arguments that could have been raised earlier, seek a new hearing ‘on the merits, or to otherwise take a second bite at the apple.’ " Dingwell v. Cossette , No. 3:17-CV-01531 (KAD), 2021 WL 413619, at *2 (D. Conn. Feb 5, 2021) (alterations omitted) (quoting Analytical Survs., Inc. v. Tonga Partners, L.P. , 684 F.3d 36, 52 (2d Cir. 2012) ).
III. Defendant's Motion for Reconsideration
Defendant argues that he is entitled to reconsideration of the Court's determination that Plaintiff is entitled to summary judgment on his claim that on June 12, 2015, he was sexually assaulted by Defendant. (Dkt. 120). Defendant raises two arguments in support of reconsideration, including: (1) the Court's granting summary judgment to Plaintiff because Defendant's denial of the sexual assault was submitted in the improper format is a "manifest injustice," and (2) the Court overlooked evidence—specifically, a medical slip signed by Plaintiff—which Defendant purports calls into question Plaintiff's credibility relating to the seriousness of his alleged injuries, including when he sought treatment for those injuries. (Id. at 3-7). For the reasons explained below, the Court concludes that Defendant has failed to carry his burden of demonstrating that he is entitled to reconsideration of the March 31, 2021 D&O, and therefore his motion is denied.
A. Manifest Injustice
Defendant argues that he has "denied wrongdoing at every stage of this litigation," but he "has had summary judgment granted against him because the denial was submitted in an improper format," specifically, "in a memorandum from counsel rather than a declaration from Defendant, and the opposition to Plaintiff's statement of undisputed facts was part of the memorandum of law and not a separate enumerated document." (Dkt 120-1 at 3-4). While conceding that "manifest injustice" is rarely found, Defendant contends that "it has been found in situations where a party would be significantly prejudiced because a plainly correct assertion was omitted from the party's papers, or the substance and intent of a claim was presented by counsel, but not in a legally cognizable manner." (Id. at 3). He seeks leave, nunc pro tunc , to file an amended, enumerated opposition to Plaintiff's statement of facts and a declaration supporting the currently filed opposition memorandum of law. (Id. at 4).
"In the context of a motion for reconsideration, ‘manifest injustice’ is defined as ‘an error committed by the trial court that is direct, obvious, and observable.’ " Corpac v. Rubin & Rothman , 10 F. Supp. 3d 349, 354 (E.D.N.Y. 2013) (citation omitted). "The manifest injustice standard is, by definition, deferential to district courts and provides relief only in the proverbial rare case," and "a judgment in a civil case does not constitute ‘manifest injustice’ where the movant's arguments for relief were available to the party below and the party proffers no reason for its failure to raise the arguments." Corsair Special Situations Fund, L.P. v. Nat'l Res. , 595 F. App'x 40, 44 (2d Cir. 2014) (alterations, quotations, and citations omitted).
Defendant cites two cases in support of his position that the March 31, 2021 D&O creates a "manifest injustice," including Plumbing Supply, LLC v. ExxonMobil Oil Corp. , No. 14 CV 3674 (VB), 2016 WL 3034385 (S.D.N.Y. May 27, 2016) and Anwar v. Fairfield Greenwich, Ltd. , 745 F. Supp. 2d 379, 383 (S.D.N.Y. 2010), both of which involved dismissal of claims at the pleading stage. (See Dkt. 120-1 at 3-4). In Plumbing Supply, LLC , the court dismissed the plaintiff's nuisance claim as time-barred by N.Y. C.P.L.R. § 214-c(2), which establishes a three-year limitations period for money damages. 2016 WL 3034385, at *1. Plaintiff argued for the first time on reconsideration that the court should not have dismissed its claim, which timely sought injunctive relief. Id. The court agreed, noting that although the plaintiff should have raised the argument when it opposed the original motions, it would exercise its discretion to reinstate the nuisance claim to the extent it sought injunctive relief, reasoning that "[i]f the Court does not reinstate this timely, adequately pleaded claim, plaintiff could be left without a remedy against the responsible party or parties for no other reason than its own inartful motion practice." Id. at *2.
Plumbing Supply, LLC is inapposite. In that case, the court's dismissal of the entirety of the nuisance claim as untimely was legally incorrect under N.Y. C.P.L.R. § 214-c(2) —a fact the court emphasized in granting the motion for reconsideration. See id. ("Therefore, the Court erred by applying C.P.L.R. § 214-c(2) to a claim seeking injunctive relief."). In other words, the court misapplied the law. Here, the Court's determination that Defendant failed to offer evidence disputing Plaintiff's claim that he was sexually assaulted is not legally incorrect. To the contrary, it is well-settled that "[i]f a party opposing a motion for summary judgment does not submit a Rule 56.1 Statement, the factual assertions contained in the movant's Statement are deemed admitted and uncontroverted," see Galasso v. Eisman, Zucker, Klein & Ruttenberg , 310 F. Supp. 2d 569, 574 (S.D.N.Y. 2004), and any such statements also must be supported by admissible evidence, see Fed. R. Civ. P. 56(c). Accordingly, the Court does not find Plumbing Supply, LLC instructive in this instance.
In Anwar the plaintiff moved for reconsideration of the court's dismissal of its negligence claim and claims against individual defendants as abandoned. 745 F. Supp. 2d at 382-83. With respect to the negligence claims, the plaintiff had filed an "omnibus response" to the defendants’ motion to dismiss, in which it failed to explicitly oppose dismissal of those claims. Id. at 383. In support of its reconsideration motion, the plaintiff argued that "it was not practical or economical for each of the Plaintiffs to respond with the degree of specificity that would normally be necessary," and also that it had listed its negligence claims in its description of claims that it argued should survive. Id. The court reinstated the dismissed claims, agreeing that "it would be unfair for [the plaintiff's] properly pled negligence claims to be dismissed because of this technicality." Id. With respect to the individual defendants, who the plaintiff did not address by name in its unified response, the court noted that the individual defendants simply joined in arguments made by another defendant, concluding that to dismiss the claims against the individual defendants would result in the plaintiff repleading claims the court already found to be sufficient, which was "an unnecessary administrative burden," and therefore "to prevent manifest injustice," reconsideration was warranted. Id. at 383-84.
The Court does not find Anwar instructive, and it would not describe counsel's failure to file an opposing statement of facts or declaration disputing Plaintiff's claims to be a "technicality," but rather an explicit and well-established requirement under Rule 56 of the Federal Rules of Civil Procedure. In holding that reconsideration was warranted, the Anwar court noted that the plaintiff had adequately pleaded its claims, the individual defendants did not make separate arguments in support of dismissal, and concerns relating to administrative efficiency—none of which are present in this case. Here, Plaintiff specifically moved for summary judgment on the issue of sexual assault, and Defendant failed to offer an opposing statement of facts or a declaration disputing Plaintiff's version of events. Further, granting reconsideration would not promote any form of efficiency, given that a trial in this matter is scheduled to commence on March 21, 2022.
As explained above, "a judgment in a civil case does not constitute ‘manifest injustice’ where the movant's arguments for relief were available to the party below and the party proffers no reason for its failure to raise the arguments." Corsair Special Situations Fund, L.P. , 595 F. App'x at 44. What Defendant seeks—that is, leave to submit an opposing statement of facts and a declaration, both of which could and should have been submitted in opposition to Plaintiff's motion—is the proverbial "second bite at the apple," and is not an appropriate ground for relief. Defendant previously had the opportunity to submit a declaration and statement of facts opposing Plaintiff's motion for summary judgment, and the Court specifically considered Defendant's failure to submit these documents in the March 31, 2021 D&O. (See Dkt. 119 at 18-19). Likewise, other than to state that defense counsel "believed" the record was sufficient (see Dkt. 120-1 at 1), Defendant has offered no valid reason as to why he failed to submit either an opposing statement of facts or a declaration denying Plaintiff's claims. For example, defense counsel does not that state that he was unable to obtain a declaration from Defendant at the time he filed his opposition papers, or that the declaration was mistakenly not filed due to a clerical error. See Mirlis v. Greer , No. 3:18cv2082(MPS), 2021 WL 1711649, at *3 (D. Conn. Apr. 30, 2021) (denying reconsideration where "[s]imply put, there is no reason that the defendant could not have offered this evidence earlier," and "[t]hat she has decided to produce these documents now does not make them new"). As explained in Mirlis , where the court found that the defendant failed to identify a manifest injustice:
the defendant was apprised of the plaintiff's arguments and evidence he offered in support of his claim concerning her retirement benefits but declined to offer any evidence in response. According to the defendant, the Court's ruling resulted in a manifest injustice to her and the Court should now permit her to offer evidence that was indisputably available to her during the litigation. However, as the Second Circuit has stated, "a judgment in a civil case does not constitute ‘manifest injustice’ where the movant's arguments for relief were available to the [party]" and the party "proffer[s] no reason for [its] failure to raise the arguments."
Id. (quoting In re Johns-Manville Corp. , 759 F.3d 206, 219 (2d Cir. 2014) ); see also Tubo v. Orange Reg'l Med. Ctr. , No. 13-cv-1495 (NSR), 2016 WL 452158, at *1-2 (S.D.N.Y. Feb. 3, 2016) (denying reconsideration of decision granting summary judgment in favor of defendant based on newly discovered evidence, excusable neglect, or manifest injustice, and noting that plaintiff's counsel "fail[ed] to provide the Court with any explanation as to why he did not timely furnish the Court with a copy of the [declaration]," and further explaining that "counsel's failure to ‘better describe[ ] all the relevant facts’ in Plaintiff's summary judgment opposition does not constitute excusable neglect warranting reconsideration, nor does it support the notion that the interests of justice would be served through reopening the case"). In other words, "[r]econsideration is not a mechanism for a losing party to refine inadequate advocacy." Id. at *2. Cf. Floyd v. City of N.Y. , 813 F. Supp. 2d 457, 469-70 (S.D.N.Y. 2011) (granting reconsideration and accepting newly submitted evidence, which was "not an obvious red flag staring plaintiffs in the face, but was rather a small part of a large data set" and "required skilled work to uncover," because doing so "would prevent manifest injustice," but also noting that "[t]he great majority of requests for reconsideration based on the submission of new evidence that could have been produced at the time of the original motion are rightly denied"). Accordingly, Defendant has failed to demonstrate any "manifest injustice" warranting reconsideration of the March 31, 2021 D&O.
B. Overlooked Evidence
In support of his contention that the Court "overlooked evidence," Defendant argues that "Plaintiff's contentions regarding the incident alleged, his injuries and treatment following it were not credible." (Dkt. 120-1 at 5). He cites to the Court's conclusion in the March 31, 2021 D&O that, contrary to Defendant's contention, Plaintiff did not wait a significant period of time before seeking medical treatment for his alleged injuries, as the record supported that he submitted a sick call request on the date of the incident, but he was not seen by medical personnel until June 14, 2015. (Id. ; see also Dkt. 119 at 20). Defendant contends that "[t]his analysis overlooks the content of the document cited," offering a convoluted explanation as to how a reasonable jury could find Plaintiff's testimony about the assault should be disregarded, pointing to a medical slip signed by Plaintiff, evidence which was previously before the Court:
Page 15 of Docket Number 114-1 is a medical slip signed by Plaintiff dated June 12, 2015. Plaintiff testified at his deposition that he wrote that slip a few hours after the incident alleged. (D.N. 114-2 pp. 6, 7). However, that slip begins "I would like to be seen by a doctor regarding a[n] incident that happened yesterday ..." (emphasis added). Plaintiff appears to have initially written that the incident occurred "on Friday" before crossing out those words. A reasonable jury could determine that what Plaintiff wrote was true, and the actual incident which [sic] in which he was assaulted, and sustained injuries occurred on June 11, rather than June 12. Alternatively, a reasonable jury could determine that the contents of the document are false, and Plaintiff actually submitted the sick call slip on June 13, in which case he submitted a sick call slip alleging an assault, altered the date it was authored to cover up the fact that no assault had occurred (if it had, he would have sought medical aid significantly earlier, as Defendant argued), then lied about it under oath. In such a case, his testimony about the assault – indeed his entire testimony – could be disregarded.
(Dkt. 120-1 at 5-6). In other words, Defendant appears to argue that the medical slip is evidence that the sexual assault did not occur.
"A motion for reconsideration is an extraordinary remedy, and this Court will not reconsider issues already examined simply because [a party] is dissatisfied with the outcome of his case. To do otherwise would be a waste of judicial resources." Matura v. United States, 189 F.R.D. 86, 90 (S.D.N.Y. 1999). "Where the movant fails to show that any controlling authority or facts have actually been overlooked, and merely offers substantially the same arguments he offered on the original motion or attempts to advance new facts, the motion for reconsideration must be denied." Mikol v. Barnhart , 554 F. Supp. 2d 498, 500 (S.D.N.Y. 2008).
Plaintiff has not identified evidence the Court "overlooked." Rather, he cites to Docket No. 114-1, page 15 (the medical slip at issue), which Plaintiff submitted in support of his motion for summary judgment, was considered by the Court, and discussed in the March 31, 2021 D&O. (See Dkt. 119 at 20 (citing to Dkt. 114-1 at 5, which suggested that Plaintiff submitted a sick call request on the date of the incident)). While Plaintiff disagrees with the Court's analysis of that document, it is not "overlooked evidence."
Rather, Defendant appears to advance the new argument that the medical slip is evidence that the sexual assault did not occur—more specifically, that it went to Plaintiff's credibility and therefore "cast[ed] doubt on whether the alleged assault occurred." (See Dkt. 125 at 3). However, Defendant is not entitled to raise in connection with a motion for reconsideration new arguments that could have been raised at the time of the original motion. See J.B. Sterling Co. v. Verhelle , 470 F. Supp. 3d 298, 304 (W.D.N.Y. 2020) ("If Plaintiff believed the evidence it now cites demonstrated the existence of a genuine issue of material fact, it was Plaintiff's obligation to bring such evidence to the Court's attention in opposing Defendants’ partial summary judgment motion. It cannot now seek to do so on a motion for reconsideration, with no explanation for the earlier failure."); see also Callari v. Blackman Plumbing Supply, Inc. , 988 F. Supp. 2d 261, 292 (E.D.N.Y. 2013) ("Plaintiffs may not use a motion for reconsideration to raise new arguments for the first time when they were free to raise them during the original briefing." (alteration and citation omitted)).
Defendant contends that this argument is not new, and he previously "argued that ... Plaintiff admitted to staff he waited two days to report the alleged assault to anyone despite purportedly being in terrible pain the entire time," which "rendered his story incredible." (Dkt. 125 at 3). The Court has again reviewed Defendant's opposition to Plaintiff's motion for summary judgment and agrees that it does challenge Plaintiff's credibility relating to the extent of his injuries (see, e.g. , Dkt. 117 at 1-2 (Defendant's opposition papers, arguing that Plaintiff's medical records did not support that blunt-force trauma occurred)), but it is less clear whether that argument could also be construed as disputing whether he was subjected to a sexual assault, particularly considering that Defendant bifurcated Plaintiff's Eighth Amendment claim to include both a physical assault and a sexual assault.
Even if the Court concluded that Defendant previously advanced this argument and the Court overlooked it—and it does not—Plaintiff has failed to show how the medical slip warrants reconsideration of the March 31, 2021 D&O. While the dates included on the medical slip have some bearing on when Plaintiff requested medical attention for his injuries and therefore it is relevant to the alleged severity of those injuries—and accordingly, as explained by the Court, is a question for the jury—the medical slip itself is not evidence that the sexual assault did not occur, and the Court specifically considered this distinction in the March 31, 2021 D&O. (See Dkt. 119 at 19 (explaining that "Defendant's motion was not addressed to whether a sexual assault occurred, but rather whether a physical assault occurred"); id. at 26 (explaining that while Plaintiff was entitled to summary judgment in his favor on liability with respect to his sexual assault claim, there existed "disputed issues of fact as to the extent of any injuries suffered by Plaintiff")); see also J.B. Sterling Co. , 470 F. Supp. 3d at 304-05 (denying reconsideration where evidence did not demonstrate that the court "overlooked ‘key evidentiary facts’ in granting partial summary judgment to Defendants").
Defendant also argues that the Court should have addressed a memorandum of Sergeant Atwood, documenting that Plaintiff admitted he delayed seeking treatment for his injuries. (See Dkt. 125 at 5). This document was submitted by Plaintiff in support of his motion for summary judgment, and in the March 31, 2021 D&O the Court concluded that it would not consider internal DOCCS records because they were not properly authenticated and therefore were not admissible evidence. (See Dkt. 119 at 7 n.9). While conceding that "[i]t is in the Court's discretion whether to consider ... documents lacking a certificate of authentication," Defendant contends that "where there is no indication documents lacking certification are not authentic, courts in this District have regularly considered them." (Dkt. 125 at 5). Defendant concludes that because Plaintiff did not object to the consideration of the document, "[f]or a crucial document to be denied on procedural grounds when the defect is easily rectified would be a manifest injustice." (Id. at 6).
In a footnote, Defendant notes that the Court also declined to consider his interrogatory responses. (Dkt. 125 at 6 n.1). As explained in the March 31, 2021 D&O, the interrogatory responses were not referred to or relied upon by Defendant in connection with either of the pending summary judgment motions, nor were they sworn to as required by Federal Rule of Civil Procedure 33(b)(3), and therefore did not constitute admissible evidence in the record before the Court. (Dkt. 119 at 21 n.11). To the extent he is attempting to do so, Defendant may not now rely on the deficient interrogatory responses—which, as explained above, he failed to offer in connection with opposing Plaintiff's motion for summary judgment—as evidence disputing Plaintiff's sexual assault claim. See Callari , 988 F. Supp. 2d at 292 (motion for reconsideration not proper vehicle for raising new arguments); see also Costello v. N.Y.S. Nurses Ass'n , 783 F. Supp. 2d 656, 661 n.5 (S.D.N.Y. 2011) (disregarding on motion for summary judgment unsworn statements of the plaintiff's former co-workers, as the statements were "neither competent nor admissible as evidence").
That the Court did not consider these documents does not require reconsideration. "The principles governing admissibility of evidence do not change on a motion for summary judgment. Therefore, only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment." Raskin v. Wyatt Co. , 125 F.3d 55, 66 (2d Cir. 1997) (internal citations omitted). Accordingly, the Court's decision not to consider these documents—a decision which, as conceded by Defendant, is discretionary—does not amount to "manifest injustice" which is defined as "an error committed by the trial court that is direct, obvious, and observable." Corpac , 10 F. Supp. 3d at 354 (citation omitted). Nor has Defendant explained how the Atwood memorandum, which he refers to as "crucial," warrants reconsideration of the Court's conclusion that Defendant failed to offer evidence disputing Plaintiff's statement that he was sexually assaulted. In other words, the timing of when Plaintiff sought medical treatment, while perhaps relevant to the extent of any physical injury he sustained, does not create an issue of fact relating to whether a sexual assault occurred. Accordingly, reconsideration is denied on this basis.
IV. Conclusion
For the foregoing reasons, Defendant's motion for reconsideration (Dkt. 120) is denied.
SO ORDERED.