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Smith v. Perlman

United States District Court, N.D. New York

December 19, 2014

AUREL SMITH, Plaintiff,
KENNETH PERLMAN, Deputy Commissioner of Programs, N.Y.S. Department of Correctional Services; MARK LEONARD, Director of Ministerial Services, N.Y.S. Department of Correctional Services; DANIEL MARTUSCELLO, Superintendent of Coxsackie Correctional Facility; CAPTAIN R. SHANLEY, Captain, Acting Deputy Superintendent of Security at Coxsackie Correctional Facility; JEFFREY A. HALE; HARRY S. GRAHAM, Superintendent of Auburn Correctional Facility; G. ROBINSON, Deputy Superintendent of Auburn Correctional Facility, Defendants.

AUREL SMITH, Attica Correctional Facility, Attica, New York, Plaintiff pro se.

KEVIN M. HAYDEN, AAG, OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, Albany Office The Capitol Albany, New York, Attorneys for Defendants.


MAE A. D'AGOSTINO, District Judge.


Plaintiff, an inmate currently in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brought this pro se action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights under the First and Fourteenth Amendments, as well as his rights under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). See Dkt. No. 1; Dkt. No. 47. Now before the Court are Plaintiff's motion to accept the filing of late objections to the Magistrate Judge's Report-Recommendation and Order and motion for reconsideration, pursuant to Fed.R.Civ.P. 59(e), of the Court's March 13, 2014 Order denying Plaintiff's motions for partial summary judgment and injunctive relief and granting Defendants' cross motion for summary judgment. Dkt. No. 93; Dkt. No. 94.


The factual background and full procedural history of this case is set forth in the Court's prior orders, the parties' familiarity with which is assumed. Relevant here, on August 23, 2013, Plaintiff moved for partial summary judgment against Defendants Perlman and Leonard on his claims alleging violations of the Fourteenth Amendment and RLUIPA based on the DOCCS policy of limiting religious family guest events for Muslim inmates to one per year and against Defendants Perlman, Leonard, Hale, and Graham on his claims alleging violations of the First and Fourteenth Amendments and RLUIPA based on Defendants' refusal to provide Plaintiff with meals combining therapeutic diet and halal restrictions. Dkt. No. 73. On October 28, 2013, Plaintiff moved for a temporary restraining order and preliminary injunction requiring Defendants to accommodate his religious and medical dietary needs by substituting halal meat for haram meat in his therapeutic diet. Dkt. No. 79. Defendants filed an opposition to Plaintiff's motion for partial summary judgment and cross motion for summary judgment on all counts on November 27, 2013. Dkt. No. 81.

In a Report-Recommendation and Order dated February 18, 2014, Magistrate Judge Christian F. Hummel recommended that the Court deny Plaintiff's motions for partial summary judgment and injunctive relief, grant Defendants' cross motion for summary judgment, and dismiss this case. Dkt. No. 90. Neither party filed objections to Magistrate Judge Hummel's Report-Recommendation and Order by the filing deadline of March 7, 2014. Finding no clear error or manifest injustice in Magistrate Judge Hummel's Report-Recommendation and Order, the Court adopted the Report-Recommendation and Order in its entirety in an Order dated March 13, 2014 and entered judgment in Defendants' favor. Dkt. No. 91; Dkt. No. 92.

On March 24, 2014, Plaintiff filed a letter motion requesting that the Court accept his late filing of objections addressing specific portions of Magistrate Judge Hummel's report. Dkt. No. 93.[1] Plaintiff's primary objection to the Report-Recommendation and Order was that Magistrate Judge Hummel erred in concluding that Plaintiff did not respond to Defendants' cross motion for summary judgment, thereby mistakenly taking Defendants' motion as unopposed and evaluating Defendants' factual assertions in the absence of Plaintiff's response and exhibits. See id. at 4. Plaintiff then filed a motion for reconsideration of the Court's Order adopting the Report-Recommendation and Order, which again contended that Plaintiff was prejudiced to the extent that Magistrate Judge Hummel's analysis overlooked Plaintiff's response to Defendants' cross motion for summary judgment, reply to the opposition of his motion for partial summary judgment, and related exhibits. See Dkt. No. 94-1. Defendants oppose Plaintiff's motion to reconsider, arguing that, "[d]espite his claims to the contrary, Plaintiff's reply papers were accepted for filing before the Report-Recommendation was issued" and that "Plaintiff has failed to dispute the law relied upon by the Court when dismissing his action." Dkt. No. 95 at 5.


A. Legal Standards

Rule 59(e) of the Federal Rules of Civil Procedure provides that "[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment." Fed.R.Civ.P. 59(e). The courts in this Circuit generally permit motions to reconsider grants of summary judgment to be brought under Rule 59(e). Patel v. Lutheran Med. Ctr., Inc., 775 F.Supp. 592, 596 (E.D.N.Y. 1991); see also Travelers Ins. Co. v. Buffalo Reinsurance Co., 739 F.Supp. 209, 213 (S.D.N.Y. 1990) (vacating a grant of summary judgment pursuant to Rule 59(e)).

The standard for granting a motion for reconsideration "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). Under Rule 59(e), "a court is justified in reconsidering its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice." Nossek v. Bd. of Educ. of Duanesburg Cent. Sch. Dist., No. 94-CV-219, 1994 WL 688298, *1 (N.D.N.Y. Nov. 10, 1994). A motion for reconsideration "is not to be used as a means to reargue matters already argued and disposed of by prior rulings or to put forth additional arguments which [a party] could have made but neglected to make before judgment." Duane v. Spaulding & Rogers Mfg. Inc., No. 92-CV-305, 1994 WL 494651, *1 (N.D.N.Y. Aug. 10, 1994) (internal quotations omitted).

B. Analysis

Here, Plaintiff contends that reconsideration is necessary to prevent manifest injustice because Magistrate Judge Hummel and the Court did not consider his reply papers and exhibits in deciding the underlying motions. In a text order dated February 14, 2014, Magistrate Judge Hummel accepted for filing Plaintiff's reply to the opposition of Plaintiff's motion for partial summary judgment and Plaintiff's response to Defendants' cross motion for summary judgment. Dkt. No. 89. However, the Report-Recommendation and Order stated that "Smith does not oppose defendants' cross motion. Upon requests, this Court twice granted Smith an extension of time to respond to defendants' cross motion, the most recent deadline being February 5, 2014. The deadline expired and Smith never responded." Dkt. No. 90 at 2 (citations omitted). Thus, the Report-Recommendation and Order clearly indicates that despite having accepted Plaintiff's late reply papers, Magistrate Judge Hummel did not consider the reply papers or attached exhibits in evaluating the parties' respective motions.[2] The Court, which adopted Magistrate Judge Hummel's Report-Recommendation and Order in its entirety, also failed to examine Plaintiff's reply papers in its analysis of the parties' respective motions.

Thus, Plaintiff's motion for reconsideration does not attempt to raise arguments or evidence Plaintiff neglected to put forth earlier, but rather urges the Court to grant due consideration to overlooked evidence Plaintiff presented. Along with his reply papers, Plaintiff filed approximately 185 pages of exhibits, including, inter alia, Defendants' responses to interrogatories, records related to Plaintiff's grievances filed with DOCCS, and various DOCCS internal communications and policy materials. See Dkt. No. 88-3. Such evidence "might reasonably be expected to alter the conclusion reached by the court" upon consideration of a motion for summary judgment. Shrader, 70 F.3d at 257. In the interest of avoiding manifest injustice, Plaintiff is entitled to have the Court consider this evidence. Accordingly, the Court hereby ORDERS that Plaintiff's motion for reconsideration is GRANTED and the Court's Order dated March 13, 2014 is VACATED.


Having thoroughly reviewed Plaintiff's reply papers, attached exhibits, objections to Magistrate Judge Hummel's Report-Recommendation and Order, and motion for reconsideration, the Court now reviews Magistrate Judge Hummel's findings and recommendations.

A. Standard of Review

When a party files specific objections to a magistrate judge's report-recommendation, the district court makes a " de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However, when a party files "[g]eneral or conclusory objections or objections which merely recite the same arguments [that he presented] to the magistrate judge, " the court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After 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).

A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56(c), (e)).

In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").

In reviewing a pro se case, the court "must view the submissions by a more lenient standard than that accorded to formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). However, this does not mean that a pro se litigant is excused from following the procedural requirements of summary judgment. See id. at 295 (citing Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484, *2 (S.D.N.Y. May 16, 2001)). Specifically, "a pro se party's bald assertion, ' completely unsupported by evidence" is not sufficient to overcome a motion for summary judgment. Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y. 1995) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

B. Statement of Material Fact

Defendants argued that Plaintiff's motion for partial summary judgment should be denied because Plaintiff failed to include a Statement of Material Facts as required by N.D.N.Y.L.R. § 7.1(a)(3). Magistrate Judge Hummel found that Plaintiff substantially complied with Local Rule 7.1(a)(3) by filing a supporting memorandum of law and exhibits, a declaration, and an affidavit of service. Having reviewed Magistrate Judge Hummel's reasoning on this issue and finding no clear error, the Court adopts this portion of the Report-Recommendation and Order.

C. Personal Involvement

Defendants Leonard, Perlman, Graham, Hale, and Martuscello moved for summary judgment on the claims against them based upon lack of personal involvement. "[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Although a defendant that occupies a supervisory position may not be held liable based solely on the defendant's position of authority,

[t]he personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

Magistrate Judge Hummel concluded that Defendants Perlman, Leonard, and Graham were personally involved in the alleged constitutional deprivations and should be denied summary judgment on this ground. Magistrate Judge Hummel further concluded that a genuine dispute of material fact existed with respect to Defendant Hale's personal involvement and that summary judgment for Defendant Hale should also be denied on this ground. Upon review, the Court finds no clear error or manifest injustice and adopts this portion of the Report-Recommendation and Order.[3]

Plaintiff objects to Magistrate Judge Hummel's finding that Defendant Martuscello lacked personal involvement in the alleged constitutional violations. Plaintiff alleges that Defendant Martuscello was personally involved in the alleged constitutional violations because when Defendant Martuscello served as Deputy Superintendent of Security, he created a custom of not allowing keeplocked inmates to attend religious services "in an arbitrary and blanketed fashion" or allowed such custom to continue. See Dkt. No. 38 at 13; Dkt. No. 93-1 at 20. Defendants Martuscello and Shanley both attested that no such blanket policy existed and that keeplocked prisoners' requests to attend religious services were handled on a case-by-case basis in accordance with DOCCS Directive 4202. Dkt. No. 81-22 at 4; Dkt. No. 81-28 at 2-3. Directive 4202 directs that "[t]he final decision to permit attendance [at congregate religious services by keeplocked inmates] rests with the Deputy Superintendent for ...

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