Opinion
00 CV 3932 (RR)
January 18, 2002
Plaintiff Pro Se, REGINALD SONDS Pine City, New York.
Attorney for Defendants, HONORABLE ALAN VINEGRAD UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK Brooklyn, New York. By: Philip J. Miller, Assistant U.S. Attorney.
Memorandum and 0RDER
Reginald Sonds sues the named defendants, all employees of the Federal Bureau of Prisons, for injuries sustained as a result of a strip search and visual body cavity inspection conducted after a July 31, 1997 visit at the Metropolitan Detention Center with his criminal defense counsel. It is one of five civil lawsuits filed by plaintiff against various federal agencies and employees seeking hundreds of millions of dollars in damages for various perceived wrongs while in custody See Sonds v. Rivera, No. 99 CV 7345 (RR); Sonds v. Fleming, No. 99 CV 7347 (RR); Sonds v. Williams, No. 99 CV 7348 (RR); Sonds v. Griffin, No. 00 CV 3932 (RR); Sonds v. Davis, No. 01 CV 4319 (RR). In a Memorandum and Order dated November 17, 2000, this court dismissed theRivera, Fleming, and Williams cases for Sonds's failure to exhaust administrative remedies and to state a claim. See Sonds v. Rivera, No. 99 CV 7345 (E.D.N.Y. Nov. 17, 2000). In a Memorandum and Order dated September 20, 2001, the court dismissed the Davis case for failure to state a claim or to satisfy the requirements of that part of the Prison Litigation Reform Act codified at 28 U.S.C. § 1915(g). See Sonds v. Davis, No. 01 CV 4319, 2001 WL 1328424 (E.D.N.Y. Sept. 20, 2001). By notice of motion dated April 26, 2001, the Griffin defendants moved for summary judgment in this action, plaintiff's single remaining case before the court. Sonds has not opposed this motion despite being given three extensions of time in which to do so. Having carefully reviewed the papers before it, the court concludes that the motion for summary judgment should be granted.
Sonds was convicted before this court on June 25, 1998, having been found guilty after jury trial of conspiring to possess cocaine base with intent to distribute it. See United States v. Sonds, No. 96 CR 1098 (RR). His conviction was affirmed by the Second Circuit in an unpublished opinion. See United States v. Torres, 199 F.3d 1324 (table), available at 1999 WL 1022488 (2d Cir. Oct. 25, 1999)).
Discussion
I. Plaintiff's Failure to Oppose the Motion
Sonds's failure to oppose defendants' motion despite being given three extensions and more than seven months in which to do so warrants granting summary judgment by default pursuant to Local Civil Rule 7.1 A brief discussion of the history of the motion supports this decision.
Local Civil Rule 7.1 states in full: "Except as otherwise permitted by the court, all motions and all oppositions thereto shall be supported by a memorandum of law, setting forth the points and authorities relied on in support of or in opposition to the motion, and divided, under appropriate headings, into as many points as there are to be determined. Willful failure to comply with this rule may be deemed sufficient cause for the denial of a motion or the granting of a motion by default."
Sonds's original deadline for opposing defendants' motion was May 31, 2001. By letter dated May 23, 2001, he requested an extension, which the court granted until August 31, 2001. On August 24, 2001, Sonds sought a second extension, which the court granted until October 30, 2001, cautioning plaintiff that no further adjournments would be granted. Despite this caveat, on October 28, 2001, Sonds sought a third extension. The court granted the request until December 17, 2000, but emphasized that "absolutely no further applications will be granted."Sonds v. Griffin, No. 00 CV 3932 (E.D.N.Y. Nov. 16, 2001). It further warned that a failure to file opposition papers within the allotted time would result in dismissal of the action. See id.
Instead of filing his opposition within the time prescribed, on December 16, 2001, Sonds wrote to Chief Judge Edward R. Korman requesting him to order the recusal of this judge from his case. The Chief Judge transferred the motion to this court, which reviewed the application, concluded that the factual allegations contained therein were inaccurate, and accordingly denied recusal. See Sonds v. Griffin, No. 00 CV 3932 (E.D.N.Y. Jan. 3, 2002). By letter dated December 17, 2001 addressed to the Clerk of the Court, Sonds requests a fourth extension until March 31, 2002 to oppose the government's pending motion.
The court hereby denies plaintiff's motion for a fourth extension and grants default judgment in favor of defendants. In so ruling, the court relies not only on the ample time already afforded Sonds to file any opposition, but also on his history of failing to submit timely opposition papers to adversaries' dispositive motions. In theRivera/Fleming/Williams trilogy of cases, Sonds also obtained three extensions spanning several months in which to oppose defendants' consolidated motion to dismiss, despite which he never submitted any papers. See Sonds v. Rivera, No. 99 CV 7345 (E.D.N.Y. June 14, 2000, Aug. 7, 2000, and Sept. 27, 2000). In that case, as in the instant one, Sonds claimed that prison restrictions precluded him from meeting court deadlines. In fact, however, Sonds managed to file two additional lawsuits while the Rivera motion was pending and one additional suit while the instant motion was pending.
During the time extensions were granted in Rivera, Sonds filed both this case (on June 28, 2000) and Sonds v. United States, No. 00 CV 6533 (on August 9, 2000), in which he sought release on bail while he challenged his criminal conviction. Relief was denied and the case closed by order dated April 17, 2001. During the time extensions were granted in this case, Sonds unsuccessfully petitioned the Court of Appeals for a certificate of appealability on this court's denial of bail see Sonds v. United States, No. 01-2257 (2d Cir. July 25, 2001), and filed Sonds v. Davis, No. 01 CV 4319 (on June 25, 2001).
The totality of these circumstances plainly warrants the entry of summary judgment by default.
II. Alternative Grounds for Summary Judgment
Even if the court were not to rely on Local Rule 7.1, defendants would still be entitled to summary judgment.
First, to the extent Sonds sues the individual defendants in their official capacities, his claim is barred by sovereign immunity. See Mack v. United States, 814 F.2d 120, 122-23 (2d Cir. 1987); Neira v. Federal Bureau of Prisons, No. 97 CV 1598, 1998 WL 178818 (E.D.N.Y. Jan. 30, 1998). This principle was discussed in detail in this court's decision inSonds v. Rivera, No. 99 CV 7345 (E.D.N.Y. Nov. 17, 2000).
To the extent Sonds sues the named defendants in their individual capacities, see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), his claim must be dismissed for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, which provides that
No 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.42 U.S.C. § 1997e(a) (1994 Supp. 2000). In Nussle v. Willette, 224 F.3d 95, 101 (2d Cir. 2000), the Second Circuit had occasion to interpret the term "prison conditions" as used in this statute and concluded that it referred to circumstances generally affecting persons incarcerated at a particular facility as opposed to extraordinary prison occurrences such as individual instances of excessive force or assault against a prisoner.
Sonds's complaint plainly attacks a generally applicable prison condition. Defendants submit, and Sonds does not dispute, that it is the policy of the Metropolitan Detention Center and Bureau of Prisons to conduct postvisit strip search and visual body cavity examinations in the case of all inmates. In sum, the conduct of which Sonds complains was not unique or extraordinary. To the extent Sonds disagrees with this policy or asserts that it is unconstitutional, § 1997e(a) requires that he exhaust prison administrative remedies before filing suit with this court. See generally, Booth v. C.O. Churner, 532 U.S. 731 (2001) (holding that administrative exhaustion is required even when prisoner seeks only money damages, provided that the grievance process has authority to take some action in response to the inmate's complaint).
The prosecution's unopposed submission in support of its motion persuasively demonstrates that Sonds has failed to exhaust Bureau procedures for challenging the post-visit search policy, despite being given numerous opportunities to do so. See Declaration of Kecia C. Carter, No. 00 CV 3932 (E.D.N.Y. Nov. 5. 2001). Accordingly, his complaint in this court must be dismissed.
In further support of their motion for summary judgment, defendants assert that (1) Sonds's complaint is barred by 42 U.S.C. § 1997e(e), since he fails to plead any physical injury resulting from the alleged constitutional violations, (2) their actions are shielded by qualified immunity, since Sonds fails to allege a violation of clearly established constitutional rights under either the Fourth or Eighth Amendments, and (3) defendants Rardin and Hawk cannot be held liable for a search in which they were not personally involved. Each of these arguments raises issues that might have warranted further exploration had Sonds timely responded to defendants' motion. The court need not address them sua sponte, however, since, as already noted, alternative grounds support granting judgment in favor of defendants.
Section 1997e(e) states that "No Federal civil action may be brought by a prisoner confiuied in jail, prison, or other correctional facility, for mental or emotional injury while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(a) (1994 Supp. 2000).
Conclusion
For the reasons stated herein, the court grants summary judgment in favor of defendants by default. In the alternative, it grants summary judgment in favor of defendants to the extent they are sued in their official capacities on grounds of sovereign immunity. To the extent defendants are sued in their individual capacities, the court grants them judgment in light of Sonds's failure to exhaust administrative procedures as required by the Prison Litigation Reform Act.