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Gamble v. Allen


May 6, 2009


The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge


Currently before the Court in this pro se prisoner civil rights action are Defendant's motion for summary judgment (Dkt. No. 32), and United States Magistrate Judge Gustave J. DiBianco's Report-Recommendation recommending that Defendant's motion be granted (Dkt. No. 36). For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety, and Defendant's motion is granted in its entirety.


A. Plaintiff's Complaint and In Forma Pauperis Status

On September 18, 2006, Plaintiff filed his Complaint in this action asserting an excessive force claim against T. Allen, a Prison Guard at Attica Correctional Facility ("Defendant"). (Dkt. No. 1, at 17 [Plf.'s Compl., dated Sept. 18, 2006].) Generally, in his Complaint, Plaintiff alleges that Defendant assaulted him on August 28, 2006, after his daily shower. (Id. at ¶ 6.) Plaintiff seeks monetary and punitive damages in the amount of Two Hundred Fifty Thousand ($250,000) as a result of this alleged assault. (Id. at ¶ 9.)

In his verified form Complaint, Plaintiff responded "Yes" in response to the question "Have you ever filed any other lawsuits in any state and federal court relating to your imprisonment?" (Dkt. No. 1, ¶ 5[a].) However, in response to the next question demanding a list of "any and all [such] lawsuits, currently pending or closed," Plaintiff swore that there was only one such lawsuit--Gamble v. Monette, 06-CV-0979, Complaint (N.D.N.Y. filed Aug. 11, 2006) (Scullin, J.). (Id. at ¶ 5[b].) Indeed, at the time Plaintiff made that statement, he had filed numerous other such lawsuits. (See Dkt. No. 36, at 13-16, & n.9 [citing cases].)

Along with his Complaint, Plaintiff filed a motion to proceed in forma pauperis. (Dkt. Nos. 2-3.) On October 12, 2006, Magistrate Judge DiBianco granted that motion. (Dkt. No. 4.) In so doing, Magistrate Judge DiBianco made only a passing reference to Plaintiff's prior actions in this District, apparently in reliance on Plaintiff's representation, in Paragraph 5(b)of his sworn Complaint, that his litigation history was minimal. (Id. at 1, n.1.)

B. Defendant's Motion for Summary Judgment

On June 27, 2008, Defendant filed a motion for summary judgment seeking dismissal of the Complaint in its entirety for Plaintiff's failure to exhaust administrative remedies. (Dkt. No. 32.) Defendant's motion contained an adequate notice to Plaintiff of the consequences of failing to oppose the motion. (Dkt. No. 32, Part 2.) Despite having received this notice, Plaintiff did not submit a response to Defendant's motion. (See generally Docket Sheet.)

C. Magistrate Judge DiBianco's Report-Recommendation

On March 23, 2009, Magistrate Judge DiBianco issued a Report-Recommendation recommending that Defendant's motion be granted and that Plaintiff's Complaint be dismissed in its entirety due to Plaintiff's failure to exhaust his available administrative remedies before filing suit. (Dkt. No. 36.) Magistrate Judge DiBianco further recommended that, in the event that the Court finds that a question of fact exists as to whether Plaintiff exhausted his available administrative remedies before filing suit, Plaintiff's in forma pauperis status be revoked pursuant to 28 U.S.C. Section 1915(g), as having been improvidently granted. (Id.) Familiarity with the grounds of Magistrate Judge DiBianco's Report-Recommendation is assumed in this Decision and Order, and only those facts necessary to the discussion will be set forth herein.

On April 17, 2009, Plaintiff submitted his Objection to the Report-Recommendation. (Dkt. No. 38.)


A. Standard of Review on Objection from Report-Recommendation

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn1

When only general objections are made to a magistrate judge's report-recommendation, the Court reviews the report-recommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).*fn2 Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

B. Standard Governing Motion for Summary Judgment

Under Fed. R. Civ. P. 56, summary judgment is warranted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial." Fed. R. Civ. P. 56(e)(2).

A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the novmoving party." Anderson, 477 U.S. at 248. As a result, "[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted]; see also Fed. R. Civ. P. 56(e)(2). As the Supreme Court has famously explained, "[The nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts." [citations omitted]. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).

As for the materiality requirement, a dispute of fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. [citation omitted].

Implied in the above-stated burden-shifting standard is the fact that, where a nonmoving party fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute--even if that nonmoving party is proceeding pro se.*fn3 (This is because the Court extends special solicitude to the pro se litigant, in part by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.)*fn4 As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules.*fn5 For this reason, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a moving party's statement to have been admitted where the nonmoving party has failed to properly respond to that statement*fn6 --even where the nonmoving party was proceeding pro se in a civil rights case.*fn7

168, 184 (1984) ("Nor does the Constitution require judges to take over chores for a pro se [litigant] that would normally be attended to by trained counsel as a matter of course."); Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980) ("[I]in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law [even when that strict adherence inures to the detriment of a pro se litigant]."); Faretta v. California, 422 U.S. 806, 834, n.46 (1975) ("The right of self-representation is not a license . . . not to comply with relevant rules of procedural and substantive law."); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) ("[P]ro se status does not exempt a party from compliance with relevant rules of procedural and substantive law.") [citation omitted]; LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995) ("Although pro se litigants should be afforded latitude, . . . they generally are required to inform themselves regarding procedural rules and to comply with them . . . . This is especially true in civil litigation.") [internal quotation marks and citations omitted]; Edwards v. I.N.S., 69 F.3d 5, 8 (2d Cir. 1995) ("[W]hile a pro se litigant's pleadings must be construed liberally, . . . pro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.") [citations omitted]; Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) ("[T]he right [to benefit from reasonable allowances as a pro se litigant] does not exempt [the pro se] party from compliance with relevant rules of procedural and substantive law.") [internal quotation marks and citations omitted].


After carefully reviewing all of the papers in this action, including Magistrate Judge DiBianco's Report-Recommendation and Plaintiff's Objection thereto, the Court rejects each of Plaintiff's objections, and agrees with each of the conclusions offered in the Report-Recommendation. Magistrate Judge DiBianco employed the proper legal standards, accurately recited the undisputed material facts, and reasonably applied the law to those facts. As a result, the Court accepts and adopts the Report-Recommendation in its entirety, for the reasons stated therein. The Court would add only three points.

First, because Plaintiff failed to respond to Defendant's motion after being given due notice of the consequences of failing to so respond, Defendant's burden on his unopposed motion has been lightened such that, in order to succeed, he need only to "demonstrate entitlement" to the relief requested by presenting an argument that is "facially meritorious." See Douglas v. Smith, 05-CV-1000, 2009 WL 789450, at *7, nn.12-14 (N.D.N.Y. March 20, 2009) (Suddaby, J.) (collecting cases). At the very least, Defendant has met this lightened burden.

Second, even if the Court were to subject Defendant's motion to the more rigorous scrutiny appropriate for contested motions, the Court would find that Defendant has met his burden. In his Objection to the Report-Recommendation, Plaintiff argues, inter alia, that he did in fact exhaust his administrative remedies for the following reasons: (1) when he attempted to file a formal grievance, he was told that there were no more grievance complaint forms available, and that he could therefore write out his complaint on a sheet of paper; (2) he subsequently did so, sending his letter of complaint to "Inmate Grievance"; (3) he subsequently appealed the denial of that complaint to Clinton Correctional Facility Superintendent Dale Artus; (4) at some point, he sent a letter of complaint to the Inspector General; and (5) at some point of time, he sent a letter of complaint to the Central Office Review Committee ("CORC"). (Dkt. No. 38, at 1-2.)

The Court is not persuaded by Plaintiff's argument (which was already anticipated, and rejected, by Magistrate Judge DiBianco). The inability to file a grievance (like the denial of a grievance or a non-response to a grievance) must be appealed to the superintendent and then to CORC, in order for the exhaustion process to be complete.*fn8 Setting aside the issue of whether Plaintiff's letter complaint sent to Superintendent Artus constituted a "grievance," the Court can find no admissible record evidence that Plaintiff appealed to CORC from Superintendent Artus' denial of such a grievance. Attached to Plaintiff's Complaint are, inter alia, letter complaints addressed to "Inmate Grievance," "Superintendent Dale Artus," and the "Central Office Review Committee." (Dkt. No. 1, at 18-19, 22-23.) However, they each appear to be dated August 28, 2006. (Id.) Granted, the letter to CORC references events occurring on "August 29, 2006. (Id. at 23.) However, there is no indication, in that letter, that Plaintiff had yet exhausted the administrative remedies available from Superintendent Artus. To the contrary, Plaintiff's letter to CORC (requesting that an investigation be conducted) suggests that the Superintendent Artus' investigation had not yet been conducted. (Id. at 22-23.) The Court notes that admissible record evidence exists establishing that Plaintiff had notice that such an investigation was in fact pending until approximately September 12, 2006. (Dkt. No. 32, Part 4, ¶¶ 3-8 [Artus Decl.]; Dkt. No. 32, Part 11, at 5, 7-31 [Ex. 5 to Def.'s Motion Papers Decl., attaching documents from file of Superintendent Artus].) Simply stated, Plaintiff could not appeal to CORC (in any meaningful sense) before he had completed his appeal to Superintendent Artus.

Third, even if the Court were to find the existence of a question of fact with regard to exhaustion, the Court would dismiss Plaintiff's Complaint as a sanction for making a sworn material misrepresentation to the Court. As described above in Part I.A., Plaintiff swore that, before filing this action (on September 18, 2006), he had filed only one federal court action relating to his imprisonment when in fact he had filed numerous such actions. This sworn misrepresentation was highly material (not simply because of Plaintiff's propensity for relitigating claims but) because (1) as of the date of filing, Plaintiff had acquired at least three "strikes" for purposes of 28 U.S.C. § 1915(g), and (2) Plaintiff's Complaint did not allege facts plausibly suggesting that, at the time of filing, he was under imminent danger of serious physical injury.*fn9 Had Magistrate Judge DiBianco been properly notified of these "strikes" at the time he granted Plaintiff's motion to proceed in forma pauperis on October 12, 2006, he would have denied Plaintiff's motion and required him to pay the Court's three-hundred-fifty-dollar filing fee, and approximately two-and-one-half years of litigation (and the resulting litigation costs imposed on Defendant) would have been avoided. The Court has carefully considered less drastic sanctions and found them to be inadequate under the circumstances.*fn10

For all of these alternative reasons, the Court grants Defendant's motion for summary judgment.


ORDERED that Magistrate Judge DiBianco's Report-Recommendation (Dkt. No. 36) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Defendant's motion for summary judgment (Dkt. No. 32) is GRANTED in its entirety; and it is further

ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED in its entirety; and it is further

ORDERED that the Clerk of the Court shall enter judgment accordingly and close the file.

The Court certifies that an appeal from this Decision and Order would not be taken in good faith.

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