Johnson v. Bernier

• Decision Date: 03 September 2020
• Docket Number: 528811
• Citation: 130 N.Y.S.3d 855,186 A.D.3d 1765
• Parties: Johnathan JOHNSON, Appellant, v. Denise BERNIER, as Freedom of Information Law Officer, Upstate Correctional Facility, Respondent
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 1765

130 N.Y.S.3d 855

Johnathan JOHNSON, Appellant,

v.Denise BERNIER, as Freedom of Information Law Officer, Upstate Correctional Facility, Respondent

528811

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: August 20, 2020

Decided and Entered: September 3, 2020

Johnathan Johnson, Malone, appellant pro se.

Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Aarons, J.

Appeal from an order of the Supreme Court (Main Jr., J.), entered March 13, 2019 in Franklin County, which granted defendant's motion for summary judgment dismissing the complaint.

In June 2015, plaintiff, a prison inmate, commenced this action pursuant to 42 USC § 1983, asserting that defendant denied his right to access to the courts by refusing to preserve certain video recordings concerning the facility law library and the delivery of legal mail. In June 2018, Supreme Court (Ellis, J.) issued a scheduling order requiring, among other things, that all dispositive motions be filed no later than 120 days prior to the February 11, 2019 trial date. In December 2018, Justice Ellis disqualified himself and the matter was reassigned to a different Supreme Court Justice (Main Jr., J.).¹ Defendant thereafter moved for additional time to file dispositive motions. Although Supreme Court denied the motion, the court also stated that its schedule could not accommodate a February 11, 2019 trial and consequently granted the parties until February 22, 2019 to serve and file dispositive motions. On February 20, 2019, defendant moved for summary judgment dismissing the complaint. Supreme Court granted defendant's motion on the ground that plaintiff should have filed a grievance regarding his claim and, therefore, he had failed to exhaust his administrative remedies. Plaintiff appeals, arguing that the motion was untimely based upon Justice Ellis' initial scheduling order and, alternatively, that the exhaustion of administrative remedies by the filing of a grievance was not applicable.

Initially, "[p]ursuant to CPLR 3212(a), Supreme Court was free to establish its own deadline for the submission of a motion for summary judgment" ( Vanderlyn v. Daly, 97 A.D.3d 1053, 1055 n 2, 949 N.Y.S.2d 266 [2012], lv denied 20 N.Y.3d 853, 957 N.Y.S.2d 689, 981 N.E.2d 286 [2012] ). Moreover, "[a] trial court is vested with the exclusive authority to extend filing deadlines" ( Wilmington Sav. Fund Socy., FSB v. McKenna, 172 A.D.3d 1566, 1567, 100 N.Y.S.3d 740 [2019] ). Under these circumstances, we cannot conclude that Supreme Court abused its discretion in setting a February 22, 2019 deadline for dispositive motions in this matter. Contrary to plaintiff's contention, Justice Ellis' scheduling order did not constitute the law of the case, inasmuch as that order was a discretionary case management decision to which the doctrine is inapplicable (see Aurora Loan Servs., LLC v. Dorfman, 170 A.D.3d 786, 787–788, 96 N.Y.S.3d 152 [2019], lv dismissed 34 N.Y.3d 1145, 119 N.Y.S.3d 428, 142 N.E.3d 111 [2020] ; Brothers v. Bunkoff Gen. Contrs., 296 A.D.2d 764, 765, 745 N.Y.S.2d 284 [2002] ).

As to the merits, Supreme Court granted defendant's summary judgment motion on the ground that plaintiff was challenging a policy of the Department of Corrections and Community Supervision (hereinafter DOCCS) and was therefore required to first exhaust his administrative remedies by filing a grievance. Under the Prison Litigation Reform Act of 1995 (see 42 USC § 1997e [a] ), "a prisoner must exhaust all available administrative remedies prior to filing a claim under 42 USC § 1983, regardless of whether the prisoner seeks relief that may not be obtained in the administrative proceeding, including money damages, or whether the administrative action is challenged on a constitutional basis" ( Sheils v. County of Fulton, 14 A.D.3d 919, 920, 787 N.Y.S.2d 727 [2005], lv denied 4 N.Y.3d 711, 798 N.Y.S.2d 724, 831 N.E.2d 969 [2005] ; see Porter v. Nussle, 534 U.S. 516, 524, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 [2002] ). Pursuant to DOCCS Directive No. 4942, inmates may request copies of video recordings for matters other than disciplinary proceedings by way of the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL] ). We note, and defendant concedes, that decisions regarding an inmate's FOIL requests are considered non-grievable (see 7 NYCRR 701.3 [e][1], [2] ).

In support of the summary judgment motion, defendant presented the affidavit of an administrator of the facility FOIL office. The administrator averred that, upon a FOIL request by an inmate for a video recording, her responsibility is to contact the facility video officer and request that the relevant portion of the video recording be preserved. She then notifies the inmate whether the preservation was successful and, if the recording is preserved, the inmate is notified of the cost of transferring the recording to a DVD and informed that if the recording is not purchased within one year, it will be recycled and no longer available for viewing. The administrator did not make any specific references, however, to her actions regarding plaintiff's requests, including whether she had requested that the recordings be preserved. Defendant argued in its summary judgment motion that plaintiff was actually challenging DOCCS's policy regarding the one-year time limit on preserving the recordings, a challenge that is properly brought under the Inmate Grievance Program (see 7 NYCRR 701.2 [a] ). A review of plaintiff's complaint, however, reflects that he does not raise that issue. Rather, he merely claims that de...