United States District Court, N.D. New York
JAMES SANDERS Plaintiff, Pro Se Comstock, New York.
HON. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, Attorney for Defendants, Albany, New York.
CATHY Y. SHEEHAN, ESQ., Assistant Attorney General.
REPORT-RECOMMENDATION and ORDER
RANDOLPH F. TREECE, Magistrate Judge.
Pro se Plaintiff James Sanders initiated this civil rights action, pursuant to 42 U.S.C. § 1983, alleging that, while he was incarcerated at Auburn Correctional Facility, Defendant Gifford used excessive force against him during a pat frisk conducted on February 15, 2011. Dkt. No. 43, 2d Am. Compl. While this case is approaching its third year of pendency, the only issue that has been continuously presented to the Court for adjudication is whether Plaintiff properly exhausted his available administrative remedies prior to bringing this action. Several Motions before this Court are addressed hereinbelow:
1) Plaintiff's Motion to Strike Defendant's Affirmative Defense, pursuant to Federal Rule of Civil Procedure 12(f) (Dkt. No. 48);
2) Defendant's Opposition to Plaintiff's 12(f) Motion and Cross-Motion to Dismiss (Dkt. No. 59);
3) Plaintiff's Motion for Summary Judgment (Dkt. No. 74); and
4) Plaintiff's Motion to Amend, pursuant to Federal Rule of Civil Procedure 15 (Dkt. No. 77).
The procedural history of this case, though byzantine, requires some discussion in order to put into perspective why a case approaching its three-year milepost has yet to progress to any meaningful stage of discovery.
Plaintiff initiated this action on March 21, 2011, complaining of an incident of sexual assault that allegedly occurred on February 15, 2011. Dkt. No. 1, Compl. Upon initial screening, Plaintiff's pleading was deemed insufficient to state a claim for relief and he was directed to amend his Complaint if he wanted to avoid dismissal of the action. Dkt. No. 4, Rep. Rec., dated Apr. 5, 2011; Dkt. No. 6, Dec. & Order, dated May 11, 2011 (adopting Report-Recommendation and Order). Plaintiff thereafter filed an Amended Complaint, which was accepted for filing and service was directed upon the Defendants. Dkt. No. 10, Am. Compl; Dkt. No. 18, Dec. & Order, dated Nov. 15, 2011 (approving amendments and directing service). On several occasions, Plaintiff sought to amend his Amended Complaint, but because he failed to comply with the Court's Local Rules, those requests were denied without prejudice. Dkt. No. 21, Mot. to Am; Text Order, dated Dec. 5, 2011; Dkt. No. 29, Mot. to Am.; Dkt. No. 30, Dec. & Order, dated Mar. 26, 2012.
On January 17, 2012, Defendants filed a Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the bases that Plaintiff failed to exhaust his administrative remedies prior to bringing this action, he failed to allege personal involvement of Defendant Fischer, and both Defendants were entitled to qualified immunity. Dkt. Nos. 25, Not. of Mot., & 25-1, Mem. of Law. Plaintiff opposed the Motion to Dismiss, Dkt. No. 27, and also filed a proper Motion to Amend, Dkt. No. 31, which the Defendants opposed, Dkt. No. 32. On June 21, 2012, this Court issued a Report-Recommendation and Order regarding the Defendants' Motion to Dismiss and Plaintiff's Motion to Amend. Dkt. No. 35. Therein, this Court noted that pursuant to the applicable standard of review and giving due liberality to the pro se pleading, we could not recommend dismissal based upon Defendants' claim that Plaintiff failed to exhaust his administrative remedies. Id. at pp. 7-8. However, we recommended that Defendant Fischer be dismissed due to Plaintiff's failure to allege his personal involvement in any constitutional wrongdoing. Id. at pp. 8-10. And, in reviewing Plaintiff's Motion to Amend, the Court found that Plaintiff's proposed pleading was virtually identical to his Amended Complaint, but nevertheless allowed Plaintiff to amend his Amended Complaint consistent with the recommendations made therein. Id. at pp. 10-12. Those recommendations were approved by the Honorable Lawrence E. Kahn, United States District Judge, and Plaintiff's Second Amended Complaint became the operative pleading in this matter. Dkt. No. 37, Dec. & Order, dated July 17, 2012; Dkt. No. 43, Pl.'s 2d Am. Compl.
On September 20, 2012, Defendant Gifford filed his Answer to the Second Amended Complaint. Dkt. No. 44. On November 19, 2012, Plaintiff filed a Motion, which was later construed by the Court to be a Motion to Strike Defendant's Affirmative Defense of Failure to Exhaust Administrative Remedies. Dkt. No. 48, Pl.'s Mot. to Strike; Text Order, dated Dec. 10, 2012. In reviewing Plaintiff's Motion, and determining to construe it as brought pursuant to Federal Rule of Civil Procedure 12(f), we directed Defendant to file a response on or before January 11, 2013. On January 10, 2013, Defendant's counsel requested permission to engage in limited discovery on the issue of exhaustion prior to responding to Plaintiff's Motion to Strike. Dkt. No. 50. The Court granted this request and set a limited discovery period of February 28, 2013. Dkt. No. 51. Upon being notified that the limited discovery had been completed, this Court directed Defendant to respond to Plaintiff's pending Motion to Strike on or before April 1, 2013. Dkt. No. 58. On April 1, 2013, Defendant filed his Opposition and a Cross-Motion to Dismiss, Dkt. No. 59, and Plaintiff, in turn, filed Opposition to Defendant's Cross-Motion, Dkt. No. 62.
Troubled by the already convoluted procedural mechanisms by which the exhaustion issue had thus far been presented to the Court, this Court issued an Order clarifying that, despite Defendant's failure to comply with this District's Local Rules in filing what amounts to be a Motion for Summary Judgment, this Court would construe it as such and we directed that Defendant provide a Statement of Material Fact and proper Notice to the Plaintiff advising him of the consequences of failing to adequately respond to the pending Motion for Summary Judgment. Dkt. No. 68, Order, dated Nov. 4, 2013; see also N.D.N.Y.L.R. 7.1(a)(3). We further provided Plaintiff with the opportunity to amend his Opposition accordingly. Id. Eventually, the parties filed their respective supplements in accordance with that Order. Dkt. No. 71, Def.'s Statement Pursuant to Rule 7.1(a)(3) (hereinafter "Def.'s 7.1 Statement"); Dkt. No. 76, Pl.'s Resp. to Def.'s Material Facts (hereinafter "Pl.'s 7.1 Statement").
But, in the interim, Plaintiff filed a Motion for Summary Judgment, Dkt. No. 74, which this Court held in abeyance because it pertained to the substantive issues in this case and not the issue of exhaustion. Dkt. No. 74, Pl.'s Mot. for Summ. J.; Dkt. No. 75, Text Order, dated Dec. 19, 2013. And, on January 2, 2014, Plaintiff filed a Motion to Amend, pursuant to Federal Rule of Civil Procedure, seeking to add two Defendants. Dkt. No. 77. The Court directed Defendant to respond to Plaintiff's Motion to Amend, despite his request that the Motion be stayed pending resolution of the motion practice on exhaustion. Dkt. No. 78, Def.'s Lt.-Mot.; Dkt. No. 80, Text Order, dated Jan. 17, 2014. On February 3, 2014, Defendant filed a Letter in response to Plaintiff's Motion to Amend, which reads in its entirety:
Please accept this letter as Defendant Gifford's response to plaintiff's motion to amend his complaint for the third time to add two additional defendants and additional claims. Dkt. No. 77. Case law is [sic] requires leave to amend be freely granted. Therefore, Defendant Gifford does not oppose the motion since leave will likely be granted following a review of the pleading for futility. Nonetheless, if the Court grants leave for Plaintiff to file a third amended complaint, Defendant Gifford respectfully ...