Opinion
95 Civ. 9705 (LAK)
July 24, 2000
ORDER
On March 14, 2000, this Court granted defendants' motion for summary judgment dismissing the complaint except insofar as it sought dismissal of a retaliation claim against defendant Cook. Nicholas v. Tucker, 89 F. Supp.2d 475 (S.D.N.Y. 2000). On May 26, 2000, defendant Cook filed another motion for summary judgment. That motion, however, must be denied.
First, the motion fails to comply with S.D.N.Y. Civ.R. 56.1.
Second, the motion is substance seeks reargument of the earlier decision. S.D.N.Y. Civ.R. 6.3, however, requires that such motions be filed within 10 days of the date of the order the reconsideration of which is sought.
Third, the motion would lack merit even if it complied with the rules.
Cook's first contention is that any injury sustained by plaintiff as a result of the allegedly retaliatory Inmate Misconduct Report was de minimis. In order to reach that conclusion, he presupposes that the 60 days plaintiff spent in keeplock was caused solely by the hearing officer's imposition of that sentence and had nothing to do with Cook. But that proposition is indefensible. Absent Cook's allegedly retaliatory IMR, nothing ever would have reached the hearing officer. It is impossible to say that Cook's allegedly improper actions were not a substantial factor in bringing about the 60 days of close confinement.
Cook next argues that he is entitled to qualified immunity because the established law at the time of the incident in question was to the effect that qualified immunity protected truthful misconduct reports even if they were retaliatory. But he is mistaken. The issue is whether, assuming Cook retaliated against plaintiff for improper reasons, his action in doing so violated clearly established constitutional rights. For the reasons set forth in the Court's prior opinion, it did. Nothing in Cook's present papers suggest that the Court's ruling was erroneous.
The motion is denied.
SO ORDERED.