Opinion
96 CIV. 213 (DLC)
March 19, 2002
For Plaintiff: William Hemric, Pro Se c/o RWA New York, N Y 10039
For Defendants: Michael Tiliakos City of New York Law Department New York, N Y 10007-2601
OPINION AND ORDER
The City of New York moves for reconsideration of an Order reinstating a Monell claim against it. For the reasons that follow, the motion is granted. The Monell claim is dismissed and this case is closed.
BACKGROUND
Knowledge of the procedural history of this action is helpful to understand the posture and merits of the current motion. William Hemric ("Hemric"), brought this action against the City of New York ("City"), the Department of Corrections, Donnell Moultrie ("Moultrie"), and Mark Burks ("Burks") under 42 U.S.C. § 1983 ("Section 1983") and state law, alleging violations of his civil rights while he was incarcerated on Rikers Island. In his complaint, filed on January 12, 1996, Hemric asserted that there was widespread tolerance of corrections officer abuse of prisoners that constituted a municipal policy or practice and that led to an assault against him. At the time he filed his complaint, Hemric was represented by counsel. The judge to whom this case was originally assigned set an initial discovery deadline of September 30, 1996, and this deadline was extended six times through 1996 and 1997, twice in 1998, and twice in 1999. While discovery was still ongoing, Hemric's counsel filed a motion to withdraw, and that motion was granted on June 30, 1998. Defendants filed a motion for partial summary judgment on November 1, 1999. On November 2, 1999, the Pro Se Office of this District was directed by the court to seek counsel to represent Hemric, and the case was placed on the suspense docket until May 1, 2000, with leave given to either party to apply for its restoration to the court's active docket.
After this action was transferred to this Court on March 10, 2000, it was removed from the suspense docket. Hemric was instructed to file his Opposition to the pending motion for partial summary judgment by June 23, 2000. His Opposition was received on June 28. The defendants had provided Hemric with a formal notice of the Rule 56 requirements for opposing their summary judgment motion. Defendants' motion sought dismissal of all claims against the City and its Department of Corrections, and dismissal of Hemric's tort claims against the individual defendants.
Hemric's opposition was sent directly to Chambers. On August 30, 2000, this Court submitted the opposition to the Clerk's Office for filing.
Through an Opinion rendered on August 30, 2000 ("August 30 Opinion"), all claims against the Department of Corrections and those claims against the City for intentional infliction of emotional distress and violation of Section 1983 pursuant to Monell v. Dep't of Soc. Serv., 436 U.S. 658, 694 (1978), were dismissed. The Monell claim was dismissed because Hemric had submitted no evidence in support of his allegation that there was a municipal practice to tolerate corrections officer abuse of prisoners. Hemrie v. City of New York, No. 96 Civ. 213 (DLC), 2000 WL 1234594 (S.D.N.Y. Aug. 31, 2000).
Because this action was transferred to this Court following the filing of a summary judgment motion, this Court did not follow a commonly used procedure for Monell claims, particularly those brought by pro se litigants. Frequently, courts stay a Monell claim pending resolution of the underlying claim. If the plaintiff is successful on the underlying claim, discovery and proceedings in pursuit of the Monell claim occur. Accordingly, a challenge to a Monell claim does not normally arise in a summary judgment motion brought before the trial of the underlying claim because the claim has been stayed from the start of the proceedings.
The Court advised the parties during a telephone conference held on June 12, 2000, that in the event the Monell claim survived the summary judgment motion, it would be severed to permit a trial of the underlying claims first.
In opposition to the dismissal of the Monell claim, Hemric argued that the Court should consider a newspaper account of a warden's testimony that brutality is ingrained at the prison and the many pages of testimony taken in other cases that were in Hemric's possession and that reflected a prison policy to ignore reports of inmate abuse. Hemric did not submit any of the documents he described in his opposition.
The plaintiff's last name is spelled in the complaint as Hemrie, however, his last name has been spelled alternately as Hemrie and Hemric in submissions to the Court throughout this action. On the second day of trial, the plaintiff made it clear that his last name is properly spelled, Hemric.
Plaintiff proceeded to trial from October 16 to 18, 2000, against Moultrie and Burks on his Section 1983, intentional infliction of emotional distress and negligence claims, and against the individual defendants and the City on his claims of assault, battery, and false imprisonment. The jury found that Hemric had established by a preponderance of the evidence that his rights under Section 1983 were violated by defendant Moultrie, that assault or battery was committed against him by Moultrie, and that plaintiff was entitled to $10,000 in compensatory damages. They found for the defendants on all other claims.
Following trial, Hemric moved for a new trial limited to the question of damages and for reconsideration of this Court's award of summary judgment for the City on his Section 1983 claim. In support of his motion for reconsideration, which was construed by the Court as a motion pursuant to Rule 60(b), Fed.R.Civ.P., Hemric argued that the Court erred in granting summary judgment while plaintiff had outstanding unanswered discovery requests. Hemric identified "sick call sign-up sheets" as the "most critical" of these unanswered requests, because he claimed these would demonstrate the City's practice or policy of denying services. Hemric also noted the confusion that had resulted because of his transition from a represented party to a pro se plaintiff.
In a decision dated February 13, 2001, and entered February 14, 2001 ("February 13 Opinion"), this Court denied plaintiff's motion for a new trial on the issue of damages, and granted plaintiff's motion for reconsideration of that portion of the Court's August 30 Opinion granting partial summary judgment against the plaintiff on his Section 1983 claim against the City. Hemric v. City of New York, No. 96 Civ. 213 (DLC), 2001 WL 118561 (S.D.N.Y. Feb. 13, 2001). The Court did not find Hemric's contentions about the sick call sign-up sheets to be persuasive. Instead, the decision to reinstate the Monell claim was based on evidence presented at trial that had not been presented in opposition to the summary judgment motion.
The trial evidence that supported Hemric's Monell claim included the testimony of Assistant Deputy Warden Angelo Manzi, Manzi's Tour Commander Report (the "Manzi Report"), and Captain Rosemary Butler's Investigation Report (the "Butler Report"), which together showed that the Department of Corrections had ample evidence that Hemric was a victim of an unjustified attack by a guard, and that the Department of Corrections failed to take any action against the guard and had instead punished Hemric. The February 13 Opinion noted that there was good cause for Hemric's failure to produce that evidence in opposition to the defendants' summary judgment motion, because plaintiff's former counsel had withdrawn in the midst of discovery, and Hemric, incarcerated and proceeding pro se, was ill equipped to pursue discovery effectively. Moreover, the Court concluded that the defendants had identified no undue hardship that would result from the reopening of Hemric's Monell claim.
The City filed a timely motion for reconsideration of the February 13 Opinion. it asserted that the evidence on which the Court relied in the February 13 Opinion as supporting Hemric's Monell claim was largely in Hemric's possession when he opposed the defendants' summary judgment motion and thus cannot constitute "newly discovered evidence" for purposes of Rule 60(b)(2), Fed.R.Civ.P. In the February 13 Opinion, counsel had been appointed to assist Hemric in the pursuit of his Monell claim. Working in conjunction with the Pro Se Office of this District, and as reflected in a series of Orders, the Court attempted to secure representation for Hemric from February until November 2001. During this time, briefing on the motion for reconsideration was stayed. Although interest was expressed by several attorneys who reviewed the case file, no attorney was able to make a commitment to represent Hemric by November of 2001. On November 19, 2001, a schedule to complete the briefing of the pending motion for reconsideration was issued. The motion was fully submitted on March 1, 2002.
While the February 13 Opinion was signed by the Court on February 13, the decision was officially docketed/entered on February 14. The City filed its motion for reconsideration of the decision on February 28.
DISCUSSION
Because the City filed its motion for reconsideration within ten days from the entry of the February 13 Opinion, defendant's motion for reconsideration is properly considered under Local Civil Rule 6.3. Local Rule 6.3 requires a party moving for reconsideration to "set forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Thus, to be successful on a motion for reconsideration, the movant usually must demonstrate that the Court has overlooked controlling decisions or factual matters that were presented to it on the underlying motion. See Local Rule 6.3; Eisemann v. Greene, 204 F.3d 393, 395 n. 2 (2d Cir. 2000); Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); Int'l Top Sports S.A. v. Pan American Sports Network Int'l, No. 01 Civ. 9668 (HB), 2002 WL 226657, at *1 (S.D.N.Y. Feb. 14, 2002). The decision to grant or deny the motion is within the sound discretion of the district court. Devlin v. Transp. Communications Int'l Union, 175 F.3d 121, 132 (2d Cir. 1999) (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)).
Although the arguments presented by the City in connection with this motion for reconsideration have not previously been presented to the Court, they are nonetheless proper. In its February 13 ruling reinstating the Monell claim, the Court relied on a ground — principally the statements of inmates interviewed following the attack on Hemric and the Department of Corrections's investigation of the attack — that had not been argued by Hemric. Accordingly, because the City never had notice that this particular evidence might be the basis for reinstating theMonell claim, it never had an opportunity to address the evidence. It is thus entirely proper to provide the City with an opportunity to address this evidence in the context of the current motion for reconsideration.
The City contends that the evidence described by the Court in the February 13 Opinion cannot serve as the basis for a grant of reconsideration pursuant to Rule 60(b)(2), Fed.R.Civ.P., because Hemric did not rely on this evidence when he opposed the defendants' summary judgment motion, although he had the evidence in his possession. Rule 60(b)(2) provides relief when the movant presents newly discovered evidence that could not have been discovered earlier and that is relevant to the merits of the litigation. Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir. 1993) (per curiam). By definition, then, evidence that was in Hemric's possession when he opposed the defendants' summary judgment motion cannot be considered new and cannot serve as the basis for Rule 60(b)(2) relief. Fleming v. New York Univ., 865 F.2d 478, 484 n. 2 (2d Cir. 1989).
The City has shown that Hemric possessed essentially all of the evidence relevant to the February 13 Opinion when he opposed the summary judgment motion. The Manzi and Butler Reports were provided to Hemric prior to June 2000. The City provided copies of both the Manzi and Butler Reports to Hemric's counsel in November 1996. While the copies of these November 1996 productions do not include the inmate witness statements that were attached to the Butler Report admitted into evidence at trial, it is clear that Hemric also had these witness statements in his possession prior to June 2000. In a letter dated September 13, 1999, defense counsel represented that all witness statements and reports had been provided to the plaintiff. Defense counsel further represented at a telephone conference with the Court held on June 12, 2000, that all the documents produced in discovery had also been provided directly to Hemric. At the same conference, Hemric stated that defense counsel had provided him with "15 or 14" witness statements, but further stated that he wanted to know "where the rest of them are, if they exist."
Hemric has raised the issue of "missing witness statements" throughout these proceedings, including on the first day of trial and in opposition to this motion. These references to missing statements are based on Hemric's belief that the investigation into his altercation with the defendant officers would have included the taking of statements from all inmates housed in the area where the altercation took place. In response to an order from this Court, defense counsel made additional inquiries prior to trial to verify that the Department of Corrections had produced all interview statements in its possession. In a letter dated June 29, 2000, defense counsel represented to the Court that all statements taken from witnesses had already been provided to Hemric. On October 6, 2000, on the eve of trial, defense counsel provided a list of the inmate statements in his possession to Hemric and asked Hemric to contact him if there was any discrepancy between those on the list and those in Hemric's possession. The record does not reflect any response from Hemric to this communication. On the first day of trial, in the context of an evidentiary discussion, Hemric confirmed his understanding that eight inmate witness statements were attached to the Butler Report. Finally, on the second day of trial, defense counsel confirmed that an additional search of the Department of Corrections archives had produced no witness statements in addition to those already produced by the Department to both defense counsel and Hemric. It is clear, therefore, that at the time he opposed the summary judgment motion, Hemric had possession of all the witness statements introduced at trial.
While the Manzi trial testimony was obviously not available to Hemric prior to trial, the absence of this testimony did not materially impair Hemric's ability to oppose the summary judgment motion. Manzi's testimony at trial was useful because of the contrast it drew between the conclusion drawn in the Butler Report and the evidence in the inmate witness statements attached to that same report. Accordingly, because Hemric had the Butler Report as well as the attached witness statements in his possession when he opposed the defendants' summary judgment motion, he had the very documents that he needed to point out the contrast between what the Department of Corrections had learned from the inmates when it interviewed them and how it described those inmate interviews in its investigative report. Hemric was extremely effective at trial in using this very evidence to show and argue that the Department of Corrections's investigation was in fact a cover up that protected the offending officers and unfairly punished him.
Ordinarily it would be difficult for a pro se plaintiff to pursue discovery on a Monell claim in a manner that would permit him to respond effectively to a summary judgment motion or to prove such a claim at trial. Often, therefore, there are good reasons for severing such claims early in a litigation in order to test first the merits of the underlying claim. Here, however, the plaintiff had sufficient evidence to defeat a summary judgment motion on the Monell claim. While it may be difficult for some incarcerated, pro se plaintiffs to respond effectively to a summary judgment motion, even when they are in possession of the necessary evidence, the Court's obligations to advise pro se litigants explicitly of the nature of a summary judgment motion see McPherson v. Coombe, 174 F.3d 276, 281 (2d Cir. 1999), and to "make reasonable allowances" to protect these litigants from the "inadvertent forfeiture of important rights because of their lack of legal training," go some considerable way toward protecting a plaintiff from premature dismissal of meritorious claims. Johnson v. Schmidt, 83 F.3d 37, 39 (2d Cir. 1996)
In the February 13 decision reinstating the Monell claim, this Court relied on the fact that, as an incarcerated, pro se plaintiff, Hemric was "ill equipped to pursue discovery effectively on his Monell claim or present evidence in opposition to defendants' motion for summary judgment on that claim." Understanding now that Hemric had the evidence that he needed to oppose the summary judgment motion, and having again searched his June 28, 2000, opposition to that motion for any reference to that evidence, it is appropriate to reinstate the dismissal of the Monell claim.
CONCLUSION
Defendants' motion for reconsideration of the February 13 Opinion is granted. Upon reconsideration, summary judgment on the Section 1983 claim against the City is granted. The Clerk of Court shall enter judgment for the plaintiff based on the jury's verdict and close the case.
SO ORDERED: