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Lopez v. Goodman

United States District Court, Second Circuit

September 20, 2013

ORLANDO LOPEZ, Plaintiff,
v.
O.M.H. DR. GOODMAN, Defendant.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

This matter is before the Court on Plaintiff's motion for reconsideration, filed on July 24, 2013, ECF No. 43. Plaintiff contends the Court erred by dismissing his complaint for failure to exhaust administrative remedies. The Court has thoroughly reviewed Plaintiff's motion papers, and denies the application.

As the Fifth Circuit has recognized, "[t]here is no motion for reconsideration' in the Federal Rules of Civil Procedure. See Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367, 371 n. 10 (5th Cir.1998). However, a motion for reconsideration filed within ten days of the district court's judgment is construed as a Rule 59(e) motion that suspends the time for filing a notice of appeal. See id. " Bass v. U.S. Dept. of Agriculture, 211 F.3d 959, 962 (5th Cir. 2000). Since the Federal Rules of Civil Procedure do not expressly provide for motions for reconsideration, such a motion may be construed as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989). "The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).

Boiled down to its essence, Plaintiff's argument is that the Court should have permitted him additional time to supplement the record to show that either he didn't exhaust such remedies as were available, or was excused from doing so. On October 12, 2012, the Court held a videoconference with Plaintiff and opposing counsel at which time Plaintiff requested that his then-scheduled jury trial be adjourned until after his release from custody. At that time, Plaintiff indicated he would be released on November 16, 2012. My letter order entered on October 29, 2012, the Court directed plaintiff to appear on January 11, 2013, at 2:30 PM for a status conference to set a new trial date. In a subsequent letter order dated January 11, 2013, addressed to Plaintiff at the Monroe County Jail in Rochester, New York, the Court indicated that it had learned that Plaintiff had been taken into custody on an allegation of a parole violation and that is final parole hearing scheduled for January 17, 2013. The Court directed Plaintiff to advise the Court by January 25, 2013, when he would be available to proceed to trial.

On February 6, 2013, Defendant requested an extension of time to file a dispositive motion. By a letter order dated March 4, 2013, the Court directed Plaintiff to respond by March 15, 2013, to two questions: "(1) do you oppose an extension of time for defense counsel to submit a dispositive motion and why; and (2) when can you be ready for trial." Letter Order, Mar. 4, 2013, ECF No. 35. Plaintiff did not respond to either question, and in a three-page decision and order dated April 11, 2013, the court granted a short extension for Defendant to file a dispositive motion. ECF No. 36.

Defendants filed a motion for summary judgment on April 17, 2013. ECF No. 37. The Court issued a motion scheduling order directing that any responses were due by May 16, 2013. Plaintiff filed a response on May 14, 2013, ECF No. 39, in which he briefly addressed the issue of exhaustion by stating:

Due to the seriousness of this matter, Plaintiff couldn't exercise his right to file or appeal any grievance proceeding or remedies due to his unresponsive state and time spent in hospitals so the grievance process wasn't available therefore should be permitted excusable due to no fault of his own into serious medical reasons, have permitted him from doing so which dealing with grievance process is justified and reasonable excuse, for not filing a timely manner according to DOCS Rules of Grievence [sic] Process.

Pl.'s Reply to Motion for Summary Judgment, May 14, 2013, ECF No. 39. Included in Defendant's motion papers was a Notice to Pro Se Litigant Opposing Motion for Summary Judgment. ECF No. 37-1. The Notice stated:

PLEASE BE ADVISED, that pursuant to Local Rule 56.2 of the Western District of New York:
Defendants have asked the Court to decide this case without a trial, based on written materials, including affidavits, submitted in support of the motion. THE CLAIMS PLAINTIFF ASSERTS IN HIS COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF HE DOES NOT RESPOND TO THIS MOTION by filing his own sworn affidavits or other papers as required by rule 56(e). An affidavit is a sworn statement of fact based on personal knowledge that would be admissible on evidence at trial.
Attached as Exhibit A is a copy of Local Rule 56.2.

Id. at 1, ECF No. 37-1. The included Exhibit A contained the following language:

RULE 56.2 NOTICE TO PRO SE LITIGANTS OPPOSING SUMMARY JUDGMENT
Any party moving for summary judgment against a party proceeding pro se shall serve and file as a separate document, together with the papers in support of the motion, a "Notice to Pro Se Litigant Opposing Motion For Summary Judgment: in the form indicated below. Where the pro se party is not the ...

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