United States District Court, W.D. New York
DECISION & ORDER
FRANK P. GERACI, JR. Chief Judge
se Plaintiff Lawrence Perez (“Plaintiff”)
brings this action under 42 U.S.C. § 1983 against
Defendants Dale A. Artus, Corey Bedard, Marco Hume, Sergeant
Olles, Officr J. Schuck, and Sergeant Sippel
(“Defendants”). ECF No. 8. Plaintiff alleges
violations of his constitutional rights while housed at
Attica Correctional Facility in the custody of the New York
State Department of Corrections and Community Supervision
(“DOCCS”). Id. Defendants' Motion
for Summary Judgment (ECF No. 10) is currently pending before
the Court. For the reasons stated below, Defendants'
motion is denied. Additionally, Plaintiff's Amended
Complaint against Defendants Artus, Bedard, Hume, and Schuck
will go forward, but Plaintiff's claim against Defendant
Olles is dismissed. Finally, the time to serve the Amended
Complaint is extended.
January 28, 2014, Defendant Schuck, an Attica correctional
officer, conducted a frisk of Plaintiff's cell. ECF Nos.
8 at 5; 10-1 at ¶1. During that frisk, Defendant Schuck
found eleven pages of documents, consisting of a Wikipedia
page and a New York Times article, regarding a Puerto Rican
nationalist group. ECF Nos. 8 at 5; 10-1 at ¶1. After
finding those documents, Defendant Schuck confiscated them
and authored a misbehavior report accusing Plaintiff of
violating Inmate Rule 105.14. ECF Nos. 8 at 5; 10-3 at 8.
Rule 105.14 prohibits inmates from possessing “material
relating to an unauthorized organization where such material
advocates . . . violence based on race, religion, sex, sexual
orientation, creed, law enforcement status, or violence or
acts of disobedience against department employees or that
could facilitate organization activity within the institution
by an unauthorized organization.” ECF Nos. 8 at 11;
10-4 at 6. Later, Defendant Sippel endorsed Defendant
Schuck's misbehavior report. ECF No. 8 at 5.
days after Defendant Schuck's frisk of Plaintiff's
cell, Defendant Hume held a hearing on the Rule 105.14
charge. ECF Nos. 8 at 5; 10-1 at ¶3. Defendant Olles
testified at that hearing about the nature of the documents.
ECF Nos. 8 at 5-6; 10-1 at ¶¶5-7. Relying on the
testimony of Defendant Olles and the misbehavior report,
Defendant Hume found Plaintiff guilty and sentenced him to
nine months in the Special Housing Unit. ECF Nos. 8 at 6;
10-1 at ¶8. On February 10, 2014, Defendant Artus
affirmed Defendant Hume's decision. ECF Nos. 8 at 10;
10-1 at ¶9. On March 31, 2014, Defendant Bedard denied
Plaintiff's administrative appeal of the disciplinary
sanction. ECF Nos. 8 at 10; 10-1 at ¶10.
24, 2014, Plaintiff filed his Complaint in this Court against
Defendants Artus, Bedard, and Hume. ECF No. 1. That same day,
he filed a motion for leave to proceed in forma
pauperis. ECF No. 2. Subsequently, the Court conducted
an initial screening of Plaintiff's complaint as required
by 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a), and on
September 19, 2014, Plaintiff's motion leave to proceed
in forma pauperis was granted. ECF No. 3.
Accordingly, the Court directed the Clerk of Court to have
the United States Marshal's Service serve Defendants
Artus, Bedard, and Hume as required by 28 U.S.C. §
1915(d). Id. Those defendants were served on
November 20, 2014. ECF No. 4.
January 20, 2015, Plaintiff filed a motion to amend his
complaint. ECF No. 5. That same day, Defendants Artus,
Bedard, and Hume requested, and the Court granted, an
extension of time to file their responsive pleadings. ECF No.
6. Defendants' response was due 30 days after Plaintiff
filed his Amended Complaint. Id. Plaintiff filed his
Amended Complaint on February 27, 2015, adding Defendants
Olles, Schuck, and Sippel. ECF No. 8. Eighteen days later,
but before the Court screened Plaintiff's Amended
Complaint or had the added defendants served, Defendants
Artus, Bedard, and Hume moved for summary judgment. ECF No.
Motion for Summary Judgment
Defendant's motion for summary judgment is not ripe for
review, it is denied without prejudice. Summary judgment is
appropriate when the moving party “shows that there is
no genuine dispute as to any material fact” and that
they are “entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A motion for summary judgment
may be filed “at any time until 30 days after the close
of all discovery.” Fed.R.Civ.P. 56(b). Indeed,
“both the Second Circuit Court of Appeals and courts
from within this district have indicated that a party may be
granted summary judgment before an answer is filed.”
Nelson v. Deming, 140 F.Supp.3d 248, 257 (W.D.N.Y.
2015) (collecting cases). That said, summary judgment is
generally not appropriate until after some discovery has
occurred. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). That is because summary judgment tests the
sufficiency of the evidence, see Fed. R. Civ. P.
56(a), and the parties obtain the evidence through discovery.
See generally Fed. R. Civ. P. 26; Celotex,
477 U.S. at 322. “Only in the rarest of cases may
summary judgment be granted against a plaintiff who has not
been afforded the opportunity to conduct discovery.”
Hellstrom v. U.S. Dep't of Veterans Affairs, 201
F.3d 94, 97 (2d Cir. 2000).
rare instance where summary judgment is appropriate before
discovery, it is evident from the face of the complaint that
discovery would be futile. See, e.g.,
Nelson, 2015 WL 6452386, at *5 (granting
defendants' pre-discovery motion for summary judgment
because “[t]he facts contained in the attachments to
[p]laintiff's own complaint contradict[ed] his
claim”); Parra v. Wright, No. 11-CV-6270, 2013
WL 6669235, at *7 (W.D.N.Y. Dec. 18, 2013) (granting
defendants' pre-discovery motion for summary judgment on
exhaustion grounds because the facts were “not
disputed, and it does not appear that any amount of discovery
would change the outcome”). Only “where it is
clear that the nonmoving party cannot defeat the motion by
showing facts sufficient to require a trial for resolution,
” may summary judgement be granted
“notwithstanding the absence of discovery.”
Nelson, 2015 WL 6452386, at *5 (internal quotation
marks omitted); see also Trebor Sportswear Co. v. The
Ltd. Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989)
(“The nonmoving party should not be
‘railroaded' into his offer of proof in opposition
to summary judgment.”) (citing Celotex, 477
U.S. at 326).
Defendants' motion for summary judgment was filed in lieu
of an answer, prior to any discovery, and before the Court
conducted an initial screening and effected service of the
Amended Complaint on three of the Defendants. In the motion,
Defendants provide no explanation or argument as to why
summary judgment should be granted at this stage. Because
this is not one of “the rarest of cases” where
summary judgment may be granted prior to discovery, let alone
before the Court has screened the complaint, Defendant's
motion is denied without prejudice.