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Perez v. Hume

United States District Court, W.D. New York

March 10, 2017

MARCO HUME, et al, Defendants.

          DECISION & ORDER

          HON. FRANK P. GERACI, JR. Chief Judge


         Pro 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.


         On 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.

         Eight 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.

         On June 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.

         On 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. 10.


         I. Motion for Summary Judgment

         Because 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).

         In the 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).

         Here, 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.

         II. ...

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