Funches v. Miller

• Docket Number: 9:20-CV-676 (MAD/CFH)
• Decision Date: 03 January 2023
• Parties: TREVIS L. FUNCHES, Plaintiff, v. JUSTIN MILLER,[1] et al., Defendants.
• Court: U.S. District Court — Northern District of New York

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TREVIS L. FUNCHES, Plaintiff, v. JUSTIN MILLER,^[1] et al., Defendants.

No. 9:20-CV-676 (MAD/CFH)

United States District Court, N.D. New York

January 3, 2023

Trevis L. Funches Plaintiff pro se

Attorney General for the State of New York KASEY K. HILDONEN ESQ. Assistant Attorney General Attorneys for defendant(s)

REPORT-RECOMMENDATION AND ORDER ^[2]

CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE

Plaintiff pro se Trevis L. Funches (“plaintiff), who was at all relevant times in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants Correctional Officer (“CO.”) Justin Miller (“Miller”), CO. C. Burt (“Burt”), CO. J. Aucter (“Aucter”), CO. M. Drake (“Drake”), Officer T.J., (“T.J.”), Deputy Superintendent of Programs K. Knapp (“Knapp”), Plant Supervisor and Hearing Officer T. Gee (“Gee”), and Sergeant (“Sgt.”) Gaurin (“Gaurin”) (collectively, where appropriate, “defendants”) violated his constitutional rights under the First, Eighth, and Fourteenth Amendments. See Dkt. No. 1 (“Compl.”).^[3] Presently before the Court is defendants' motion for summary judgment brought pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56. See Dkt. No. 49. Plaintiff filed a response. See Dkt. No. 62. Defendants filed a reply. See Dkt. No. 63. Plaintiff filed a surreply.^[4] See Dkt. No. 65. For the reasons that follow, it is recommended that defendants' motion for summary judgment (Dkt. No. 49) be granted in part and denied in part.

I. Procedural Issues

A. Plaintiff s Response

1. Local Rule 7.1

In defendants' reply, they argue that plaintiff's response fails to comply with Local Rule 7.1 which requires that a memorandum of law not exceed twenty-five pages unless given permission from the Court. See Dkt. No. 63 at 7-8^[5] (citing L.R. 7.1(b)(1)). Plaintiff's response memorandum is twenty-eight pages long. See Dkt. No. 62 at 2-31.

“It is well established that a court is ordinarily obligated to afford a special solicitude to pro se litigants,” because “a pro se litigant generally lacks both legal training and experience, and, accordingly, is likely to forfeit important rights through inadvertence if he is not afforded some degree of protection.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). However, a plaintiffs pro se status does not excuse noncompliance with the Local Rules. See Faretta v. California, 422 U.S. 806, 834, n.46 (1975) (“The right of self-representation is not a license . . . not to comply with relevant rules of procedural and substantive law.”); Edwards v. INS, 59 F.3d 5, 8 (2nd Cir. 1995) (“While a pro se litigant's pleadings must be construed liberally, . . . pro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.”).

Plaintiff has not been known to thwart repeatedly Local Rule 7.1, and given his pro se status, striking the additional three pages from his response is not warranted at this time. However, plaintiff is cautioned that regardless of his pro se status, he must comply with the Local Rules in the future. See Avent v. Platinum Plus Auto Prot., No. 1:19-CV-1494 (BKS/DJS), 2021 WL 706643, at *4 (N.D.N.Y. Feb. 23, 2021)^[6] (citation omitted) (explaining that the degree of special solicitude afforded to pro se litigants can “be lessened where the particular pro se litigant is experienced in litigation and familiar with the procedural setting presented[]”; and acknowledging that “the [p]laintiff is an experienced litigant,” but nevertheless considering the “brief in its entirety.”).

2. Raising New or Previously Dismissed Claims

In their reply, defendants argue that plaintiffs response attempts to (1) resurrect claims previously dismissed by this Court, and (2) raise new claims not included in plaintiffs complaint. See Dkt. No. 63 at 9-11. Defendants argue that plaintiff has not provided any reason by which the Court should consider any of the claims and that consideration of new claims would be prejudicial to defendants. See id. at 9-11.

In his response, plaintiff asserts that defendant Knapp violated his First Amendment right to have access to the courts and Eighth Amendment right to be protected from cruel and unusual punishment, and that defendant Miller violated his Fourteenth Amendment rights. See Dkt. No. 62 at 6-10, 12. As defendants state, these claims were dismissed by the Court on its initial review of plaintiffs complaint pursuant to 28 U.S.C. § 1915A. See Dkt. No. 63 at 9-10; see also Dkt. No. 8 at 17-20, 23-25, 38-39.

“[A] brief opposing a dispositive motion is not the appropriate means of seeking to revive previously dismissed claims.” Valentine Properties Assocs., LP v. U.S. Dep't of Hous. & Urb. Dev., 785 F.Supp.2d 357, 370 (S.D.N.Y. 2011), affd, 501 Fed.Appx. 16 (2d Cir. 2012) (summary order) (citing Aventis Environmental Science USA LP v. Scotts Co., 383 F.Supp.2d 488, 512 (S.D.N.Y.2005) (“A request in an opposition brief to a motion for summary judgment marshaling new facts is an improper means for requesting reinstatement of a previously dismissed claim, and I decline to entertain such a request.”)). “Under the law of the case doctrine, a decision on an issue of law becomes binding precedent in subsequent stages of the same litigation.” Brentwood Pain & Rehab. Servs., P.C. v. Allstate Ins. Co., 508 F.Supp.2d 278, 288 (S.D.N.Y. 2007) (citation omitted). “[T]he prevailing rule in the Northern District recognizes only three possible grounds upon which . . . reconsideration may be granted[]”: “(1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice.'” People ex rel. Vacco v. Rac Holding, Inc., 135 F.Supp.2d 359, 362 (N.D.N.Y. 2001) (citation omitted). “[C]ourts ordinarily have not defined precisely what constitutes . . . manifest injustice[]”; however, “courts should be loathe to [revisit a prior decision] in the absence of extraordinary circumstances[.]” Oneida Indian Nation of New York v. Cnty. of Oneida, 214 F.R.D. 83, 99 (N.D.N.Y. 2003) (citation omitted); Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (citation omitted). Plaintiff has not moved for reconsideration nor provided any justification for this Court to reconsider the previously dismissed claims. See generally Dkt. Nos. 62; 65. Thus, the undersigned declines to do so.

Next, in his response, plaintiff alleges that Knapp violated his Fourteenth Amendment rights, Gaurin violated his Eighth and Fourteenth Amendment rights, Aucter violated his Fourteenth Amendment rights, and Drake violated his First and Fourteenth Amendment rights. See Dkt. No. 62 at 6, 10, 15. Plaintiff also repeatedly refers to CO. Clintsman as a defendant and attempts to assert claims against him. See Dkt. No. 62 at 15. Clintsman is not a defendant in this action. See Compl. at 1; see also Dkt. No. 8 at 8. Plaintiff further alleges that his access to communicating with his son who is incarcerated in South Carolina was restricted “under defendant Russo's regime[.]” Dkt. No. 62 at 29. Anthony Russo is not a named defendant in his action.^[7]Plaintiff also asserts facts relating to his receipt of COVID-19 stimulus checks and attaches exhibits concerning the same. See Dkt. No. 62 at 28-29, 54, 57. In his response, plaintiff often references an “Amended Complaint.” Id at 9, 11-12, 17. Plaintiff has not filed an amended complaint in this action, nor did he ever seek leave to do so.

It is well settled that arguments and claims raised for the first time in response to a motion for summary judgment should not be considered by the Court. See Valentine Properties Assocs., 785 F.Supp.2d at 372 (collecting cases to support the contention that it “is impermissible[]” for claims to be “raised for the first time in [the plaintiffs' motion papers.”). Further, a plaintiff “cannot amend his complaint in his memorandum in response to defendants' motion for summary judgment.” Auguste v. Dep't of Corr., 424 F.Supp.2d 363, 368 (D. Conn. 2006) (citations omitted); see also Murray v. Palmer, No. 9:03-CV-1010 (DNH/GLS), 2008 WL 2522324, at *22 (N.D.N.Y. June 20, 2008) (“[A] pro se plaintiff's papers in opposition to a motion to dismiss may sometimes be read as effectively amending a pleading (e.g., if the allegations in those papers are consistent with those in the pleading). However, a pro se plaintiff's papers in opposition to a motion for summary judgment may not be so read, in large part due to prejudice that would inure to the defendants through having the pleading changed after discovery has occurred and they have gone through the expense of filing a motion for summary judgment.”).

On initial review of plaintiffs complaint, the Court did not construe plaintiffs complaint as raising Fourteenth Amendment claims against Knapp, Gaurin, Aucter, or Drake; an Eighth Amendment claim against Aucter; or a First Amendment claim against Drake. See generally Dkt. No. 8. Plaintiff did not object to the Court's liberal construction of his complaint or seek to amend his complaint after the Court dismissed “all remaining claims arising out of plaintiffs confinement at Gouverneur” Correctional Facility (“Gouverneur”) aside from those permitted to proceed. Id at 43. As plaintiff has provided no justification for this Court's consideration of any claims, allegations, or defendants outside of those permitted to survive initial review, the undersigned declines to do so. See generally Dkt. Nos. 62, 65.

Plaintiff attached to his response a copy of a letter he wrote to the Court on May 12, 2022. See Dkt. No. 62 at 49; see also Dkt No. 61. In this letter, plaintiff stated that ...