Summary
noting that district courts in the Second Circuit have repeatedly held that isolated instances of fondling and groping are not sufficient to sustain an Eighth Amendment claim and finding that plaintiff's claim that the correction officer groped his genitals, buttocks and inner thighs for up to 53 seconds in the course of a frisk did not state an Eighth Amendment claim
Summary of this case from Samuels v. StrangeOpinion
10 Civ. 6756 (NRB)
07-02-2012
ANTHONY HARRY, Plaintiff, v. OFFICER GILBERT SUAREZ, Defendant.
Copies of the foregoing Memorandum and Order have been mailed on this date to the following: Pro Se Plaintiff: Anthony Harry Metropolitan Correctional Center ID #: 70231-054 150 Park Row New York, NY 10007 Attorney for Defendant: Reginald J. Johnson, Esq. Office of the Westchester County Attorney 600 Michaelian Office Building 148 Marine Avenue White Plains, NY 10601
MEMORANDUM AND ORDER
By Memorandum and Order of June 4, 2012, this Court granted defendant's motion for summary judgment. Plaintiff filed a notice of appeal on June 11, 2012. By letters of June 12, 2012 and June 17, 2012, plaintiff moves pursuant to Federal Rule of Civil Procedure 62.1 for the Court to reconsider its summary judgment decision. As bases for this motion, plaintiff cites Liner v. Goord, 196 F. 3d 132 (2d Cir. 1999), and Rodriguez v. McClenning, 399 F. Supp. 2d 228 (S.D.N.Y. 2005).
Under Rule 62.1, "If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue." Fed. R. Civ. P. 62.1(a). --------
We find Liner to be plainly inapposite, as our June 4, 2012 Memorandum and Order was focused entirely on whether plaintiff could succeed on his Eighth Amendment claim (which notably is the only claim stated in the amended complaint). Cf. Liner, 196 F.3d at 135-36 (remanding because the district court failed to consider whether the plaintiff stated an Eighth Amendment claim).
The district court's opinion in Rodriguez likewise does not compel reconsideration of our decision. Rodriguez is inconsistent with Second Circuit precedent, see Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997), as well as the vast majority of relevant district court jurisprudence. See Vogelfang v. Capra, No. 10 Civ. 3827 (PAE), 2012 WL 832440, at *11 (S.D.N.Y. Mar. 13, 2012) (collecting cases).
Accordingly, plaintiff's motion for reconsideration is denied.
SO ORDERED.
Dated: New York, New York
July 2, 2012
/s/_________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE Copies of the foregoing Memorandum and Order have been mailed on this date to the following: Pro Se Plaintiff:
Anthony Harry
Metropolitan Correctional Center
ID #: 70231-054 150 Park Row
New York, NY 10007 Attorney for Defendant:
Reginald J. Johnson, Esq.
Office of the Westchester County Attorney
600 Michaelian Office Building
148 Marine Avenue
White Plains, NY 10601