Opinion
12-CV-9087-LTS-AJP
09-08-2014
DAVID CARTER, Plaintiff, v. NY STATE C.O. J. CARROLL, Defendant.
MEMORANDUM ORDER
This action was brought by incarcerated pro se plaintiff David Carter ("Carter") against New York State Corrections Officer James Carroll ("Carroll") pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Carroll used excessive force in violation of Carter's constitutional rights. Carroll moved for summary judgment and, on December, 17, 2013, the Court granted Carroll's motion and dismissed the case because Carter had failed to exhaust his adminsitrative remedies before filing suit in federal court. See 42 U.S.C. § 1997e(a). Carter now moves for reconsideration under Local Civil Rule 6.3 and for relief from the Court's judgment under Rule 60(b) of the Federal Rules of Civil Procedure. Carter has also appealed the dismissal of the action to the Second Circuit.
Carter's motion for reconsideration contains a handwritten date of December 23, 2013 and was date-stamped January 2, 2014 by the Clerk's Office (docket entry no. 75). Carter's notice of appeal contains a handwritten date of December 23, 2013 and was date-stamped January 7, 2013 by the Clerk's Office (docket entry no. 76). The Second Circuit has issued an order staying the appeal pending resolution of Carter's motions (docket entry no. 84).
The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331. The Court has considered carefully the parties' submissions and arguments. For the following reasons, Carter's motion for reconsideration is granted and his motion for relief from the judgment dismissing his complaint is granted.
BACKGROUND
Carter alleges that, on December 6, 2012, Carroll struck him repeatedly with a wooden baton while breaking up a fight between Carter and another inmate (Wen Decl. Exhibit C; Def.'s L.R. 56.1 Statement at ¶¶ 12-13) and that Carroll continued to strike him after Carter and the other inmate had been separated (Carter Dep. at 53). Carter also alleges that, when he spoke to area supervisor Sergeant Cipollini shortly after the incident, Cipollini said that he would "break [Carter's] neck" and "falsely charge [him] with assault on staff." (Pl.'s Mem. Opp'n Summ. J. 1.) Carter did not file an administrative grievance after the incident. Rather, he commenced this lawsuit three days after the incident. (Docket entry no. 1.) Carter did not initiate administrative grievance proceedings thereafter, although he did write to the superintendent of the facility to complain of the incident. It is undisputed that Carter was familiar with the grievance system for inmates. Carter asserted, in response to the original summary judgment motion practice, that he did not file a grievance because he feared retaliation by Sergeant Cipollini.
The details of Carter's allegations regarding the incident are recited in the Court's December 17, 2013, Memorandum Order, familiarity with which is presumed.
Carter's complaint bears a handwritten date of December 9, 2012, and a December 12, 2012, date stamp from the Clerk's Office.
--------
In his submissions in connection with the instant motion practice, he reiterates this contention, proffering further details regarding the circumstances of his confinement following the December 6, 2012, incident and his own state of mind. Specifically, he alleges that he was held in Special Housing Unit ('SHU') confinement for 28 days following the Plaintiff has proffered facts sufficient, when viewed in the light most favorable to him, to demonstrate that he was subjected to threats or intimidation sufficient to render the ordinary grievance procedures unavailable to him. (See December 17, 2013, Memorandum Order at 4-5.) The Court finds that Plaintiff's proffers, which supplement his assertions in his pro se complaint and in his deposition testimony that he did not pursue the administrative grievance process at Downstate because he feared physical or procedural retaliation by Sergeant Cipollini, are sufficient to raise a genuine issue of fact as to whether special circumstances existed that effectively made the grievance process unavailable to him at Downstate. His proffer regarding his effort to initiate the process at Great Meadows is sufficient to address the question of availability of the process after his transfer. Accordingly, upon reconsideration, Plaintiff is granted Rule 60(b) relief in the interests of justice and the Court directs the Clerk to vacate the judgment dismissing the case and the order granting Defendant's motion for summary judgment.
C ONCLUSION
For the foregoing reasons, Carter's motion for reconsideration and his motion for relief from judgment are granted. This Memorandum Order resolves docket entries 75 and 89.
The parties are directed to meet promptly with Magistrate Judge Peck for settlement purposes and are reminded that they have the option of consenting to a trial before Judge Peck. Defense counsel must contact the Court to schedule a final pretrial conference if the parties anticipate that the case will go to trial before Judge Swain.
SO ORDERED. Dated: New York, New York
September 8, 2014
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge