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BURKE v. WARREN CTY. SHERIFF'S DEPT.

June 29, 1995

PATRICIA A. BURKE, as Limited Administratrix of and singular of the goods, chattels, and credits which were of ROBERT C. BURKE, Deceased, Plaintiff,
v.
THE WARREN COUNTY SHERIFF'S DEPARTMENT, WARREN COUNTY SHERIFF FREDERICK C. LAMY, SERGEANT MICHAEL GREENE, DEPUTY CAL JORDAN, DEPUTY JOHN WATSON, and THE COUNTY OF WARREN, Defendants.


HOWARD G. MUNSON, SENIOR UNITED STATES DISTRICT JUDGE


The opinion of the court was delivered by: HOWARD G. MUNSON

Plaintiff brought this civil rights suit under 42 U.S.C. § 1983, alleging violations of her deceased husband's rights under the Eighth and Fourteenth Amendments to the United States Constitution. Her complaint also stated a supplemental state cause of action for negligence. In a Memorandum-Decision and Order ("MDO") dated November 25, 1994, the court granted defendants' motions for summary judgment dismissing plaintiff's § 1983 claims. Although it dismissed all of plaintiff's federal claims, the court denied without prejudice defendants' motions for summary judgment on plaintiff's supplemental claim for negligence.

 Currently before the court are defendants' renewed motions for summary judgment dismissing plaintiff's negligence claims. *fn1" Plaintiff cross-moves for summary judgment and for reconsideration of that portion of the court's November 25, 1994 MDO dismissing her claims for "pain and suffering." The court heard oral argument on the motions on May 30, 1995 in Albany, New York.

 BACKGROUND

 The facts and disputes at the center of this case are fully set forth in the court's November 25, 1994 MDO. In short, plaintiff seeks to recover for defendants' lack of due care in failing to prevent her husband Robert Burke ("Burke") from committing suicide while incarcerated at the Warren County Jail.

 In its November 25, 1994 MDO the court dismissed all federal claims against defendants, holding that there is insufficient evidence in the record for a reasonable jury to conclude that defendants acted with deliberate indifference to a strong likelihood that Burke would commit suicide in the Warren County Jail. As to defendants Jordan and Watson, the court held that plaintiff failed to demonstrate that they knew of and disregarded an excessive risk to Burke's health or safety. As to defendant Greene, the court held that even if Greene knew of and disregarded a risk that Burke might commit suicide, Burke did not display a strong likelihood of suicide. Because plaintiff's § 1983 claim was therefore dismissed as to defendants Jordan, Watson, and Greene, the court further dismissed the claim against all other defendants, reasoning that since no constitutional injury could be proven, no defendant could be liable.

 Although all federal claims were dismissed, the court declined to dismiss plaintiff's common law negligence claim, citing judicial economy and fairness as reasons for retaining the state law claim. Thus the court denied without prejudice, and with leave to renew, defendants' summary judgment motion as it applied to the negligence claim.

 DISCUSSION

 A. TIMELINESS OF THE MOTION

 Plaintiff argues that defendants' renewed motion for summary judgment is an untimely motion to amend a judgment under Federal Rule of Civil Procedure 52(b). Acknowledging that the court expressly invited defendants to renew the motion, plaintiff challenges the court's extension of time to file the motion as violative of the Amended Rule 16 Stipulation, and the Federal Rules of Civil Procedure. Specifically, plaintiff argues that the court may not extend the time for defendants to file motions pursuant to Federal Rule of Civil Procedure 6(b) because that Rule exempts from its scope actions taken under Rule 52(b).

 Rule 52(b) relates to motions to amend a "judgment", which is defined in Rule 54 as "any order from which an appeal lies." Fed. R. Civ. P. 54. Plaintiff asserts that the court's previous ruling on defendants' summary judgment motion constitutes a judgment, because an appeal could issue. Therefore, she concludes, the court can not apply Rule 6(b) to extend the deadline for defendants to move for summary judgment.

 The court disagrees with plaintiff's novel argument. With certain exceptions not applicable here, Rule 6(b)(2) allows the court, upon motion, to extend any deadline where the failure to act within the specified period was the result of excusable neglect. Fed. R. Civ. P. 6(b)(2). The court construes defendants' motion papers to be a motion to extend pursuant to Rule 6(b)(2), and finds that the failure of defendants to make substantive arguments addressing plaintiff's negligence claim was excusable given the likelihood that such claims would be dismissed if plaintiff's federal claims were dismissed. See Federman v. Empire Fire and Marine Ins. Co., 597 F.2d 798, 809 (2d Cir. 1987) ("dismissal of the state claim is the recommended procedure . . . in cases where the federal claim is disposed of prior to the trial"). Further, the court's order denying summary judgment on plaintiff's negligence claim is not a "final decision" within the meaning of 28 U.S.C. § 1291, and therefore is unappealable. See Group Health Inc. v. Blue Cross Ass'n, 793 F.2d 491, 496 (2d Cir. 1986) (denial of summary judgment "ordinarily" unappealable); cf. Milltex Indus. Corp. v. Jacquard Lace Co., 922 F.2d 164, 167 (2d Cir. 1991) (denial of summary judgment not a final order for res judicata purposes). Because the order was not appealable, it was not a judgment within the meaning of Federal Rule of Civil Procedure 54, and therefore defendant's current motion is not a motion to amend a judgment pursuant to Federal Rule of Civil Procedure 52(b). Because defendants' motion is not among those specifically excluded from Rule 6(b), the court was within its authority to extend the time for defendants to file the instant motion. Therefore, plaintiff's objection to the extension of time for defendants to file its motion for summary judgment is unwarranted, and the court proceeds to assess the cross-motions for summary judgment on their merits.

 B. SUMMARY JUDGMENT STANDARDS

 Under Federal Rule of Civil Procedure 56(c), summary judgment shall enter if, when viewing the evidence in the light most favorable to the nonmovant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). Where the moving party does not bear the ultimate burden of proof on an issue, that party satisfies its summary judgment burden "by pointing to the absence of evidence to support an essential element of the non-moving party's claim." Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1986). Where the movant does shoulder the burden of proof, it must establish that there is no genuine issue of material fact to decide regarding any element of that party's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In either case, if the movant satisfies its initial summary judgment burden, then the burden shifts to the nonmovant to proffer evidence demonstrating that a trial is required because a disputed issue of material fact exists. Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993). To survive the motion for summary judgment the nonmovant must do more than present evidence that is merely colorable, conclusory, or speculative, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and furthermore must show more than "some ...


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