United States District Court, N.D. New York
TIMOTHY A. VAIL, Plaintiff,
JOSEPH SMITH, Superintendent, Shawangunk Correctional Facility; LOUIS PINGOTTI, Captain, Shawangunk Correctional Facility; MAUREEN BOLL, Deputy Commissioner and Counsel, Department of Corrections and Community Supervision, PETER PRESTON, Sergeant, Shawangunk Correctional Facility, Defendants
TIMOTHY A. VAIL, Plaintiff, Pro se, Wallkill, NY.
For Defendants: ADELE TAYLOR SCOTT, ESQ., Assistant Attorney General, OF COUNSEL, HON. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, Albany, NY.
REPORT-RECOMMENDATION and ORDER
Randolph F. Treece, United States Magistrate Judge.
On January 25, 2012,  pro se Plaintiff Timothy Vail, while incarcerated at Shawangunk Correctional Facility, a maximum security facility, commenced this civil rights action, pursuant to 42 U.S.C. § 1983, alleging that its prison policy restricting the number of envelopes that a prisoner may possess at any one time infringes upon his First Amendment right to free flow of outgoing mail. See Dkt. No. 1, Compl. On April 10, 2014, Defendants moved for summary judgment. Dkt. No. 50. Plaintiff subsequently filed his Response in Opposition. Dkt. No. 57.
A. Suggestion of Death
As a preliminary matter, the Court recommends dismissing deceased Defendant Peter Preston from this action. Federal Rule of Civil Procedure 25(a)(1) provides that if a party dies and the claim is not extinguished by the party's death, substitution of the proper party may occur. Withrow v. Taylor, 2007 WL 3274858, at *2 (N.D.N.Y. Nov. 5, 2007) (citing to Fed.R.Civ.P. 25(a)(1)). " A motion for substitution may be made by any party, and the motion must be served on the parties as provided in Rule 5 [of the Federal Rules of Civil Procedure] and served upon non-parties as one would serve a summons pursuant to Rule 4." Id. (citing to Fed.R.Civ.P. 25(a)(1)). If the motion for substitution is not made within ninety days after service of a statement noting the death, the action against the decedent must be dismissed. Fed.R.Civ.P. 25(a)(1).
" The rule makes it clear that any party may make a motion for substitution, but as soon as a 'suggestion of death' is filed, the motion for substitution must be made within 90 days." Withrow v. Taylor, 2007 WL 3274858, at *2 (citing Fed.R.Civ.P. 25(a)(1)). There are two affirmative steps required to sufficiently trigger the ninety-day time limitation: first, the death must be " formally" suggested " upon the record" and second, " the 'suggesting party' must serve other parties and non-party successors or representatives of the deceased with a suggestion of death in the same manner as required for service of the motion to substitute." Id. at *2-3 (citations omitted).
On April 4, 2014, Plaintiff and representatives of the deceased were served with the Suggestion of Death. Dkt. No. 50-4, Adele Taylor Scott Aff., Ex. A, Yvonne R. Ross, Decl. of Service, dated Apr. 4, 2014. On April 10, 2014, Defendants filed the Suggestion of Death with the Court. Taylor Scott Aff., Ex. A, Suggestion of Death, dated Apr. 9, 2014. More than ninety days have passed and neither Plaintiff nor any Defendant has moved for a motion of substitution. Thus, the Court recommends dismissing Peter Preston from this action.
B. Summary Judgment Standard
Pursuant to Fed.R.Civ.P. 56(a), summary judgment is appropriate only where " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through " pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any, " that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). " When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).
To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the facts submitted by the movant. Fed.R.Civ.P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (" Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are " more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) & Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). " [T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court must " read [his or her] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); accord Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). ...