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concluding that plaintiff need not "be spared dismissal on the ground that he did not actually receive the Court's order . . . since he himself was responsible for the Court's inability to notify him" in that he provided no forwarding address after release from custody
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00-CV-6039 CJS (F).
July 22, 2004
Timothy Dumpson, 86-B-2265, pro se, Attica Correctional Facility, Attica, New York, for plaintiff Timmothy Dumpson.
Andre Decker, 96-A-0632, pro se, Southport Correctional Facility, Pine City, New York, for plaintiff Andre Decker.
Hakim Edwards, 97-R-7780, pro se, Southport Correctional Facility, Pine City, New York, for plaintiff Hakim Edwards.
Moses Ortega, 01-B-2775, pro se, Elmira Correctional Facility, Elmira, New York, for plaintiff Moses Ortega.
Amin Lewis, 97-A-5101, pro se, Southport Correctional Facility, Pine City, New York, for plaintiff Amin Lewis.
Charles D. Steinman, Assistant Attorney General of Counsel, NYS Office of the Attorney General, Rochester, New York, for defendants.
DECISION AND ORDER
INTRODUCTION
This is a prisoners' civil rights suit brought pursuant to 42 U.S.C. § 1983 (2003). Plaintiffs raise claims under the Eighth and Fourteenth Amendments regarding the manner of their confinement in the Southport Correctional Facility ("Southport"). In a previous decision in this case [#52] filed on September 24, 2003, this Court, inter alia, denied defendants' motion for summary judgment against plaintiffs Hakim Edwards ("Edwards") and Amin Lewis ("Lewis") on the ground that they failed to exhaust administrative remedies, and granted defendants' motion for summary judgment against all plaintiffs with respect to their Fourteenth Amendment claims on the ground of qualified immunity. The discussion which follows assumes familiarity with the facts as described in that decision and order.
Now before the Court are two motions: defendants' renewed Motion for Summary Judgment against Edwards and Lewis for failure to exhaust administrative remedies [#54], and plaintiff Timothy Dumpson's Motion for Reconsideration of the Court's decision of September 24, so as to reinstate plaintiffs' Fourteenth Amendment claims [#71]. For the reasons stated below, defendants' motion is granted and plaintiff's motion is denied. Additionally, pursuant to FED. R. CIV. P. 41(b), the Court dismisses Andre Decker as a plaintiff in this matter based on his failure to provide a current mailing address as required by Local Rule 5.2 of the Western District of New York Rules of Civil Procedure and as demanded by an order of this court.
STANDARDS OF LAW
A. Summary Judgment Standard
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
A court should read a pro se litigant's papers liberally, interpreting them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, when alleging a violation of a civil rights statute, even a pro se litigant must make "specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987).
B. Exhaustion of Administrative Remedies
Title 42 U.S.C. § 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." It is well settled that,
[i]n New York State, those remedies consist of a three-step review process. Once a grievance is submitted to the inmate grievance resolution committee ("IGRC"), (1) the grievance is investigated and reviewed by the IGRC, which is comprised of inmates and [Department of Correctional Services ("DOCS")] employees; (2) if appealed, the superintendent of the facility reviews the IGRC's determination; and (3) if the superintendent's decision is appealed, the Central Office Review Committee ("CORC") makes the final administrative determination. Only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to § 1983 in federal court.Reyes v. Punzal, 206 F.Supp.2d 431, 432 (W.D.N.Y. 2002) (citations omitted). If a plaintiff has failed to comply with 42 U.S.C. § 1997e(a) prior to commencing a lawsuit, the district court should dismiss the action without prejudice. Neal v. Goord, 267 F.3d 116, 121-23 (2d. Cir. 2001), overruled in part on other grounds, Porter v. Nussle, 534 U.S. 516 (2002); but see, Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2003) (finding dismissal with prejudice appropriate where "exhaustion was required but administrative remedies have become unavailable after the prisoner had ample opportunity to use them and no special circumstances justified failure to exhaust").
ANALYSIS
A. Plaintiff Andre Decker
In accordance with FED R. CIV. P. 42(b), a court may sua sponte dismiss a plaintiff's action for failure to comply with an order of the court. Costello v. United States, 365 U.S. 265, 286-87 (1961). Such decisions are committed to the Court's sound discretion. Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633(1962)). Pro se plaintiffs are entitled to a degree of leniency, but this "should not extend to the disregard of a judge's plain directives." Lucas v. Miles, 84 F.3d 532, 538 (2d Cir. 1996).
According to the DOCS website, available at http://nysdocslookup.docs.state.ny.us, plaintiff Andre Decker ("Decker") was released from Southport on October 16, 2002. He has not, in the 21 months following, contacted the Court to provide a new address. Defendants advised the Court by letter dated April 6, 2004, that in their attempt to correspond with Decker, they were informed that he had been released from DOCS custody, and that no forwarding address was available from DOCS. Further, defendants related that mail sent to Decker at the address noted on the Court's docket, has been returned to them. By order of April 21, 2004, pursuant to Local Rule 5.2 of the Western District of New York Rules of Civil Procedure, the Court mailed to Decker, at the address he provided, an order directing him to confirm in writing where he could be contacted. The Court further indicated that the failure of Decker to provide a current address to the Court by May 28, 2004, could result in dismissal of his case with prejudice. He has still failed to take any action.
The Court had previously received notice from defendants, by letter of October 3, 2003, that Mr. Decker was no longer listed as being in DOCS custody but had provided defendants with no forwarding address.
Decker's non-compliance is manifestly unreasonable. The demand that plaintiffs provide contact information is no esoteric rule of civil procedure, but rather the obvious minimal requirement for pursuing a lawsuit. Consequently, the Court determines that Decker should be dismissed as a plaintiff in this case. See Dong v. United States, No. 02 Civ. 7751 (SAS), 2004 U.S. Dist. LEXIS 3125, at *8-9, 2004 WL 385117 (S.D.N.Y. March 2, 2004) (finding that "the very fact that Dong has been inaccessible for the last two months — without notifying the Court, the Government, or the Pro Se Office of a change of address — strongly suggests that he is not diligently pursuing this claim"); Ortiz v. United States, No. 01 Civ. 4665 (AKH), 2002 U.S. Dist. LEXIS 12621, at *4-5, 2002 WL 1492115 (S.D.N.Y. July 11, 2002) (dismissing complaint where "[p]laintiff has not even fulfilled his minimal obligation to keep the pro se office of this Court informed of his change of address"). Nor can Decker be spared dismissal on the ground that he did not actually receive the Court's order of April 21, 2004, since he himself was responsible for the Court's inability to notify him. See Mathews v. U.S. Shoe Corp., 176 F.R.D. 442, 445 (W.D.N.Y. 1997) (dismissing pro se plaintiff's lawsuit for failure to prosecute where plaintiff's not actually receiving the court order warning of dismissal could "only be attributed either to plaintiff's deliberate failure to claim the letter, or her failure to advise the court of a change of address.").
B. Defendants' Motion for Summary Judgment
Defendants have renewed their motion for summary judgement against Edwards and Lewis for failure to exhaust administrative remedies, and have supplied a new affidavit by the Director of the DOCS Inmate Grievance Program, defendant Thomas G. Eagen ("Eagen"). In the order of September 24, this Court noted that, because the affidavit Eagen filed for defendants' previous motion for summary judgment "contain[ed] no explanation concering how the records are kept, or the process he and his staff employed to search for Edwards' and Lewis' record," it was "conclusory and, therefore, inadmissible as evidentiary proof" (p. 13). Defendants had no other evidence of failure to exhaust, and thus failed to meet their burden of showing the absence of a genuine issue of fact when both Edwards and Lewis claimed to have exhausted their administrative remedies. Id.
Eagen's new affidavit does meet the standard for admissibility as evidentiary proof. See FED. R. EVID. 803(7) 803(10). It is substantially identical to the affidavit submitted by Eagen in support of defendants' motion for summary judgment in Preston Smith v. McGinnis, et. al., No. 01 Civ. 6244 (W.D.N.Y. September 30, 2003). In that case, the Honorable David G. Larimer, U.S. District Judge, Western District of New York, found that "Eagen's affidavit suffices to meet defendants' initial burden of demonstrating the absence of any genuine issue of material fact." Id. at 5. The plaintiff was, therefore, required to "come forward with `concrete evidence' that at least gives rise to an issue of fact in this regard." Id. In the instant case as well, Eagen's affidavit suffices to meet defendants' initial burden and to shift the burden to plaintiffs to demonstrate the existence of a genuine issue of material fact.
By Motion Scheduling Order [#70] of November 6, 2003, the Court ordered that plaintiffs file and serve any responding papers submitted in connection with this motion on or before December 5, 2003. Defendants' Notice of Motion [#54] advised plaintiffs of their obligations as non-moving parties under FED. R. CIV. P. 56. See Irby v. N.Y. City Transit Auth., 262 F.3d 412 (2d Cir. 2001). To date, however, plaintiffs have not responded to defendants' application. The Court, therefore, must rely upon plaintiffs previous submissions in determining whether or not there is evidence that, viewed in the light most favorable to plaintiffs, could support a finding that Edwards and Lewis have exhausted their administrative remedies.
Edwards claims that he "filed previous Grievances to I.R.G.C., Superintendent, Medical Staff and the Commissioner," but obtained no relief. Edwards' Aff. in Supp. of Compl. [#7], ¶ 7. He filed a grievance on June 13, 1999, complaining about lack of medical attention for a skin condition, headaches, and back pain. Compl. [#1], Edwards' Exs. The grievance was denied. On July 25, 1999, he filed a second grievance in which he specifically addressed the issue of his restraint and claimed that it deprived him of the ability to exercise. Id. This grievance too was denied. The I.G.R.C. stated in its recommendation of July 30, 1999, that "[g]rievant was removed from Full Restraint Status on 7/25/99," and that he was receiving what medical attention he required. Id. Edwards then wrote two letters dated August 17, 1999, asking for appeal or re-submission of the previous grievances. Id. The letter concerning the June grievance was addressed to defendant Bernard O'Bremski, the Nurse Administrator at Southport, whereas the letter concerning the July grievance was addressed merely "To Whom It May Concern." Id.
Plaintiffs' seventy-five paragraph complaint came with several bundles of exhibits, some of which are identified by letters, others of which are merely stapled together. This particular exhibit is one of those merely stapled together and contains ten pages, all of which refer to Edwards.
Edwards also wrote a letter of July 27, 1999, Deputy Commissioner of Correctional Facilities, Lucien J. LeClaire, Jr., asking him to look into the matter of Edwards' full restraint and resulting pain. It is not clear whether Edwards believes this letter contributes to his exhaustion of administrative remedies. Informal grievances, however, satisfy the exhaustion requirement only if they resolve the issue. Thomas v. Cassleberry, 315 F.Supp. 2d 301 (W.D.N.Y. 2004). Edwards has not suggested that his letter to LeClaire resolved his grievance about his restraint status.
As to Lewis, the record contains two relevant documents. In an affidavit filed on November 17, 2000, Lewis states that he "has filed Grievances to complain about the restraints and the pain it caused[.] The plaintiff filed [sic] the Grievances to [sic] the Defendants (McGinnis) and (Morse) as they continued to uphold and keeping [sic] me under these painful restraints." Lewis' Aff. in Supp. of Class Action [#15], ¶ 12. Lewis also wrote a letter of June 21, 2001, to the Honorable Jonathan W. Feldman, U.S. Magistrate Judge [#49], claiming that when he was moved to another facility, corrections officers lost his personal copies of the grievances he had filed.
Even viewed in the light most favorable to plaintiffs, this evidence cannot preclude summary judgment against either Edwards or Lewis. Lewis does not even so much as suggest that he appealed any grievances he filed. If Edwards can be said to have appealed, he presents no evidence that he filed his appeal with the Superintendent as the exhaustion process demands. Neither Edwards nor Lewis claims to have appealed to CORC. Since the Eagen affidavit satisfies defendants' burden of showing the absence of a material factual dispute and plaintiffs have not even contradicted it, defendants are entitled to summary judgment against Edwards and Lewis.
C. Plaintiff's Motion to Reconsider
Plaintiff Timothy Dumpson ("Dumpson") moves this Court to reverse that portion of its order of September 24, 2003, which dismissed plaintiffs' Fourteenth Amendment claims. He states his ground for the motion as "the [d]istrict court[']s error in granting the [d]efendants [q]ualified [i]mmunity on the plainitiff[']s [d]ue process [l]iberty [i]nterest claims." Pl.'s Mem. of Law in Support of 60(b) Mot. [#72], at 2. Though he styles this a 60(b) motion, that rule applies only after "a final judgment, order, or proceeding." FED. R. CIV. P. 60(b); Chao v. Russell P. Le Frois Builder, Inc., 291 F.3d 219, 229 (2d Cir. 2002). This Court's order of September 24, 2003, was an interlocutory, and not a final, order because it "adjudicate[d] fewer than all of the claims" in the action. FED. R. CIV. P. 54(b); Citizens Accord, Inc. v. Town of Rochester, 235 F.3d 126, 128 (2d Cir. 2000). Rule 60(b), therefore, is currently unavailable to Dumpson.
The Court recognizes that it has inherent power to reconsider its decisions. See 7 MOORE'S FEDERAL PRACTICE § 60.20 (Matthew Bender 3d ed.). Because of the strong policy favoring finality, however, this power should be used "only sparingly." United States v. Adegbite, 877 F.2d 174, 178 (2d Cir. 1989), cert. denied, 493 U.S. 956 (1989). With respect to the order of September 24, 2003, there is no reason for reconsideration. Courts "may change an interlocutory decision where, for example, there has been an intervening change in the law, where new evidence has become available or where a clear error must be corrected in order to prevent manifest injustice." New York v. Panex Indus., No. 94 Civ. 0400E(H), 1997 U.S. Dist. LEXIS 20774, *4-5 (W.D.N.Y. December 31, 1997) (citations omitted). None of these reasons applies here.
Dumpson does not claim that there has been an intervening change in the law applicable to this case. Rather, his Memorandum of Law [#72] responds to the finding that "[p]laintiffs have failed to come forward with any evidentiary proof in admissible form which in any way established that by being required to wear back restraints during exercise periods, they suffered an `atypical and significant hardship . . . in relation to the ordinary incidents of prison life'" (p. 16) (citation omitted). Though Dumpson now offers a thorough description of conditions at Southport in relation to other correctional facilities, this is not previously unavailable evidence that would justify reconsideration. He has not demonstrated that this evidence was "neither in his possession nor available upon the exercise of reasonable diligence at the time the interlocutory decision was rendered." Tri-Star Pictures v. Leisure Time Prods., B.V., No. 88 Civ. 9127 (DNE), 1992 U.S. Dist. LEXIS 15232, *9 (S.D.N.Y. October 6, 1992).
Though entitled "Memorandum of Law in Support of 60(b) Motion," Dumpson's submission was sworn to as an affidavit would be.
Additionally, because Dumpson presents information gleaned from the experiences of plaintiffs collectively, much of the Memorandum would be inadmissible hearsay.
Reading the pro se plaintiff's motion liberally, the Court finds that plaintiff may also have intended to request certification for immediate appeal. Interlocutory orders may be appealed as of right only if they involve injunctions, receiverships, arbitratation, admirality, or patent infrigement. 28 U.S.C. § 1292(a). Other interlocutory orders, however, may be appealed "if the district court certifies [them] and the circuit court grants permission." 19 MOORE'S FEDERAL PRACTICE, § 201.30 (Matthew Bender 3d ed.); 28 U.S.C. § 1292(b). Because of the federal policy against piecemeal appeals, however, "[t]he power should be used only in the infrequent harsh case, where there exists some danger of hardship or injustice through delay which would be alleviated by immediate appeal." Citizens Accord, Inc. v. Town of Rochester, 235 F.3d 126, 129 (2d Cir. 2000) (internal quotation marks and citations omitted). Dumpson has not shown any need for immediate appeal. To the extent that he has requested certification for immediate appeal, therefore, the request is denied without prejudice.
CONCLUSION
Accordingly, plaintiff's motion for reconsideration of this Court's order of September 24, 2003, is denied, and defendants' motion for summary judgment against Edwards and Lewis for failure to exhaust administrative remedies is granted. The claims of Edwards and Lewis are dismissed without prejudice. Furthermore, Andre Decker is dismissed as a plaintiff in this action.
SO ORDERED.