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BURKE v. WARREN COUNTY SHERIFF'S DEP'T

February 23, 1996

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.



The opinion of the court was delivered by: MUNSON

 Presently before the court is plaintiff's motion for reconsideration, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, of that portion of this court's June 30, 1995 Memorandum-Decision and Order ("MDO") *fn1" which granted summary judgment in favor of defendants County of Warren and Sheriff Frederick C. Lamy. Document ("Doc.") 52, at 17. All parties consented to the court deciding this motion without oral argument. Letter from Robert J. Muller, Esq., Sept. 27, 1995; Letter from Mark I. Plaine, Esq., Oct. 3, 1995; Letter from David E. Winans, Esq., Oct. 25, 1995. The memoranda and affidavits submitted in support of plaintiff's motion and defendants' response are fully sufficient for the disposition of this issue. *fn2" The following constitutes the court's Memorandum-Decision and Order.

 BACKGROUND

 The facts of this case are detailed in the court's November 25, 1994 MDO. Doc. 33, at 2-6. Briefly, the complaint arises out of the suicide of Robert Burke in a Warren County jail cell the early morning of June 28, 1989. Patricia Burke, decedent's surviving spouse and limited administratrix of his estate, brought a civil rights suit under 42 U.S.C. § 1983, a state law negligence claim, and a third cause of action for "pain and suffering" against the County of Warren, Sheriff Frederick Lamy and the Sheriff's Department, Sergeant Michael Greene, and Deputies John Watson and Cal Jordan.

 The court has previously granted defendants' motion for summary judgment on the civil rights claim and the claim for "pain and suffering." Nov. 25, 1995 MDO, Doc. 33, at 15. In the interests of justice and fairness, jurisdiction was retained over the negligence cause. Id. Defendants then renewed their motion for summary judgment on the negligence claim, which the court granted as to all defendants except Sergeant Greene. June 30, 1995 MDO, Doc. 52, at 17-18.

 Plaintiff now contends that the court erred in granting summary judgment in favor of defendants County of Warren and Sheriff Frederick Lamy. Specifically, plaintiff disputes the court's conclusion that the disrepair of the jail's camera system was not a proximate cause of Robert Burke's suicide. Plaintiff's Memorandum ("Mem.") of Law, Doc. 55, at 2. For reasons set forth below, the motion for reconsideration must be denied.

 DISCUSSION

 Plaintiff takes issue with the following passage from the court's previous decision determining that the malfunction of the jail's cameras was not a proximate cause of the harm alleged:

 
It is not disputed that the cameras were designed to monitor prisoners in the "catwalk" area of the jail, not in the individual cells. See Sheriff Lamy's Deposition, Exh. 22 attached to Document 20, at 88-90. Thus the failure to maintain and utilize the cameras was not a proximate cause of Burke's death.

 June 30 MDO, Doc. 52, at 16.

 Defendants' response assumes that plaintiff brings her Rule 60(b) motion under ground six -- the "catch-all" provision. Mem. of Law in Opposition to Plaintiff's Motion For Reconsideration, Doc. 59, at 1. Defendants first argue that plaintiff's contention regarding the cameras, even if true, would not provide a basis for liability against Sheriff Lamy since it is the county that is responsible for the maintenance of the jail. Id. at 2. Second, as regards the county, defendants assert that the plaintiff has not made out a sufficient argument to satisfy the requirements of the catch-all exception in this circuit. Id. at 4. Before the court addresses the merits of the instant motion, a preliminary matter concerning the procedural adequacy of plaintiff's motion must be addressed.

 Rule 60(b)

 Plaintiffs ostensibly bring this motion under Federal Rule of Civil Procedure 60(b). The court observes, however, that this motion is not properly brought under that rule. Rule 60(b) provides that a court may relieve a party from a "final judgment, order, or proceeding" for any of six reasons. Interlocutory orders and judgments are not subject to the strictures of Rule 60(b), but remain within "the complete power of the court rendering them to afford such relief from them as justice requires." Fed. R. Civ. P. 60(b) 1946 amendment advisory committee's note. In a case with multiple parties and claims, an adjudication as to one or more but fewer than all of the parties and claims is interlocutory, unless the court makes the proper certification pursuant to Rule 54(b). In Re Martin-Trigona, 763 F.2d 135, 139 (2d Cir. 1985); Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2852, at 233-35 (2d ed. 1995). It does ...


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