Daker v. Ferrero

• Decision Date: 24 August 2007
• Docket Number: Civil Action No. 1:03-CV-02481-RWS.
• Citation: 506 F.Supp.2d 1295
• Parties: Waseem DAKER, Plaintiff, v. Joe FERRERO, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

506 F.Supp.2d 1295

Waseem DAKER, Plaintiff, v. Joe FERRERO, et al., Defendants.

Civil Action No. 1:03-CV-02481-RWS.

United States District Court, N.D. Georgia, Atlanta Division.

August 24, 2007.

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Waseem Daker, Duluth, GA, pro se.

Devon Orland, Office of State Attorney General, John C. Jones, Freeman Mathis & Gary, Aaron B. Mason, State of Georgia Law Department, Atlanta, GA, for Defendants.

ORDER

STORY, District Judge.

This case comes before the Court for resolution of Defendants' Motion for Reconsideration [249]; Defendants' Supplemental Motion for Summary Judgment [253]; and Plaintiff's Motion for Summary Judgment [258]. After reviewing the record, the Court enters the following Order.

Background

This is a civil rights action brought pursuant to 42 U.S.C. § 1983. By Order dated February 26, 2007[246], 475 F.Supp.2d 1325, this Court resolved on summary judgment a significant number of Plaintiffs nineteen original claims.¹ What remain are Plaintiff's challenges to the following three practices he alleges he was subjected to during his confinement in Georgia Department of Corrections ("GDC") prison facilities: (1) the content-based denial of approximately 55 mailed publications and certain personal mailings (Counts 3 and 8); (2) the denial of procedural due process when prison officials rejected or seized certain mailings or publications (Counts 4, 7, and 14); and (3) alleged acts of retaliation against Plaintiff by Defendants Benton and Jones for filing grievances and initiating this action (Count 18). Because Plaintiff has been released from prison, the Court has previously dismissed Plaintiff's official-capacity claims on mootness and sovereign immunity grounds. (See Order of Feb. 26, 2007[246] 475 F.Supp.2d at 1331-32 & n. 2.) Plaintiff thus proceeds against Defendants exclusively in their individual capacities, seeking money damages.

After holding a hearing on March 13, 2007, the Court allowed the parties to submit additional briefing on several matters which it concluded might be amenable to resolution prior to trial. Specifically, the Court invited the parties to submit briefing on (1) whether any of Plaintiffs remaining claims were barred by the relevant statute of limitations, and (2) whether Defendants were entitled to qualified immunity from any or all of Plaintiffs claims. Both parties have since again moved for summary judgment. (See Defs.' Supp. Mot. for Summ. J. [253]; Pl.'s Mot. for Summ. J. [258].) Defendants have also moved the Court to reconsider its Order of February 26, 2007, insofar as it granted summary judgment in favor of Plaintiff and against Defendants Benton and Jones on the liability portion of Plaintiffs retaliation claim. The Court now takes up these motions.

Discussion

I. Motion for Reconsideration

Defendants move for reconsideration of this Court's Order of February 26, 2007. In that Order, the Court held that Plaintiff was entitled to judgment as a matter of law on the liability aspect of his retaliation claim (Claim 18), after observing that Defendants Benton and Jones had failed to contest Plaintiff's evidence of retaliation either in their summary judgment papers or in their Response to Plaintiff's Statement of Material Facts. (See Order of Feb. 26, 2007[246] at 93-95.) Although Defendants "acknowledge they inadvertently missed arguing the substance of one of Plaintiffs numerous claims," Defendants argue that the Court should reconsider that part of its Order because a dispute of material fact exists as to whether Defendants retaliated against Plaintiff in violation of the First Amendment. Specifically Defendants contend that the Affidavits of Defendants Benton and Jones, which were filed contemporaneously with their summary judgment papers, dispute Plaintiff's allegations. (See, e.g., 4th Aff. of Benton ¶ 3 [147-2] (filed Sep. 26, 2005) ("Daker's allegation that my staff and I have unlawfully retaliated against him ... is simply not true.").)

Rule 60 provides that, "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for ... mistake, inadvertence, surprise, or excusable neglect ...." FED. R.CIV.P. 60(b)(1); see also Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir.1993). Under the Local Rules of this Court, however, "[m]otions for reconsideration shall not be filed as a matter of routine practice[,]" and only when "absolutely necessary." LR 7.2(E), NDGa.

Having reviewed the record, the Court concludes that Defendants have demonstrated adequate cause to warrant reconsideration of the Court's Order of February 26, 2007. Although defense counsel's failure to cite evidence on summary judgment to dispute Plaintiff's facts would normally operate to entitle Plaintiff to relief, such an omission must be considered in the context of the magnitude and numerosity of the issues and evidence in this action. Against that backdrop, the Court finds, in its discretion under Rule 60(b), that Defense counsel's omission is excusable.² Because a review of the record reflects that a dispute of fact exists as to whether Defendants Benton and Jones retaliated against Plaintiff in violation of the First Amendment, the Court agrees to reconsider its Order of February 26, 2007. Defendants' Motion for Reconsideration [249] is GRANTED. Insofar as the Court's Order of February 26, 2007, awards summary judgment in favor of Plaintiff and against Defendants Benton and Jones on the liability aspect of Plaintiffs retaliation claim (Claim 18), the Court VACATES that portion of its Order and DENIES Plaintiffs motion for summary judgment on the liability aspect of Plaintiffs claims of retaliation by Defendants.

II. Motions For Summary Judgment

Both parties move for summary judgment on Plaintiffs' content-based-denial and procedural-due-process claims. After reviewing the standard on summary judgment and the contours of the qualified immunity defense, the Court will consider the merits of the parties' motions.

A. Summary Judgment Standard

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). The court should view the evidence and any inferences that may be drawn from it in the light most favorable to the non-movant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Qualified Immunity

Qualified immunity provides "complete protection for government officials sued in their individual capacities if their conduct `does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Its purpose is to "allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks and citations omitted).

Qualified immunity is a question of law for the court. Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993). To be entitled to qualified immunity, the public official "must first prove that he was acting Within the scope of his discretionary authority when the allegedly wrongful acts occurred." Lee, 284 F.3d at 1194. The burden then shifts to the plaintiff. Lee, 284 F.3d at 1194. There is a two-part test to determine whether a defendant is entitled to qualified immunity. First, a court asks "`whether [the] plaintiffs allegations, if true, establish a constitutional violation.'" Vinyard, 311 F.3d at 1346 (quoting Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). Where the issue of qualified immunity is presented on summary judgment, the Court resolves all disputed facts in favor of the plaintiff, and it decides whether the supposed facts amount to a violation of Plaintiffs constitutional rights. Purcell, 400 F.3d at 1320 (11th Cir.2005). Second, after sufficiently stating a constitutional violation, a court must ask whether the right was "clearly established." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). A right is clearly established if its contours are "sufficiently clear that a reasonable official would understand what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The salient question is whether the state of the law at the time of the alleged violation gave officials "fair warning" that their acts were unlawful. Hope, 536 U.S. at 740, 122 S.Ct. 2508; Holmes v. Kucynda, 321 F.3d 1069, 1078 (11th Cir. 2003); see also Vinyard, 311 F.3d at 1350-53 (articulating a tripartite analytical framework for ascertaining whether right is "clearly established").

While materially similar precedent or "broad statements of principle" can establish a right with sufficient clarity to deny an officer qualified immunity, they are not in all instances required to provide officials with the requisite notice. See Vinyard, 311 F.3d at 1350-52. In some cases,...