Scott v. Gardner

• Decision Date: 09 November 2004
• Docket Number: No. 02 CIV. 8963(RWS).,02 CIV. 8963(RWS).
• Citation: 344 F.Supp.2d 421
• Parties: Harold SCOTT, Plaintiff, v. Lt. G. GARDNER, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

344 F.Supp.2d 421

Harold SCOTT, Plaintiff, v. Lt. G. GARDNER, et al., Defendants.

No. 02 CIV. 8963(RWS).

United States District Court, S.D. New York.

November 9, 2004.

COPYRIGHT MATERIAL OMITTED

Harold J. Scott, Great Meadow Correctional Facility, Comstock, NY, for Plaintiff Pro Se.

Honorable Eliot Spitzer, Attorney General of New York State, New York City, by Steven N. Schulman, Assistant Attorney General, of Counsel, for Defendants.

OPINION

SWEET, District Judge.

Plaintiff Harold Scott ("Scott"), proceeding pro se, has moved, pursuant to Fed.R.Civ.P. 60(b), for reconsideration of this Court's opinion entered on October 31, 2003, see Scott v. Gardner, 287 F.Supp.2d 477 (S.D.N.Y.2003) (the "Opinion"). Scott seeks reconsideration of the Opinion to the extent that it dismissed (1) cause of action 1 in its entirely and a portion of cause of action 3 on the grounds that administrative remedies had not been exhausted, and (2) causes of action 4-10 on the grounds that Scott's confinement in the Special Housing Unit ("SHU") did not implicate liberty interests and that, in any case, no due process rights were violated. For the reasons set forth below, this motion is granted in part and denied in part.

Prior Proceedings

The instant motion was received by the Court on September 17, 2004. After submission of briefs, the motion was deemed fully submitted without oral argument on October 13, 2004.

Facts

The following allegations, which do not constitute findings of the Court, were recounted in the Opinion.

Scott is a prison inmate in the custody of the New York State Department of Correctional Services ("DOCS"). Defendants are employed by DOCS or the New York State Office of Mental Health ("OMH"). During the relevant time period, Scott was first incarcerated at Sullivan Correctional Facility ("Sullivan") and then at Fishkill Correctional Facility ("Fishkill"). Scott is currently incarcerated in Great Meadow Correctional Facility in Comstock, New York.

Scott has alleged that defendants violated 42 U.S.C. § 1983 by retaliating against him for bringing a previous lawsuit in this district. See Scott v. Coughlin, 78 F.Supp.2d 299 (S.D.N.Y.2000). Specifically, the complaint alleged that Scott was subjected to the following:

1. twelve unwarranted urine tests administered between September 11, 1998 to March 26, 1999 (cause of action 1);

2. a March 19, 1999 disciplinary proceeding during which due process and privacy rights were allegedly violated (causes of action 4-11) 3. unwarranted psychiatric treatment at an OMH facility in Sullivan from November, 1998 until April, 1999 (cause of action 2); and

4. transfer to Fishkill on April 2, 1999, where Scott was held in that facility's Special Housing Unit ("SHU") (cause of action 3).

Discussion

Scott's motion for reconsideration is based on two arguments: (1) that with respect to causes of action 1 and 3, under recently decided Second Circuit cases, Scott did, in fact, exhaust his administrative remedies, and (2) that with respect to causes of action 4-10, the court conducted an improper review of the record and overlooked controlling Second Circuit law that mitigated against dismissal of cause of action 6.

1. Standard of Review

Rule 60(b) provides, in pertinent part, that:

On 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 the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence ...; (3) fraud ..., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged ... or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

Fed.R.Civ.P. 60(b). Based on Scott's motion, it is assumed that he is seeking reconsideration pursuant to Rule 60(b)(6).

"A motion under Rule 60(b) is addressed to the sound discretion of the trial court." Velez v. Vassallo, 203 F.Supp.2d 312, 333 (S.D.N.Y.2002) (citing Mendell in Behalf of Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir.1990)). Nonetheless, the Second Circuit has cautioned that Rule 60(b) provides "extraordinary judicial relief" to be granted "only upon a showing of exceptional circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir.1986); see also Employers Mut. Cas. Co. v. Key Pharm., 75 F.3d 815, 824-25 (2d Cir.1996) ("A movant under Rule 60(b) must demonstrate `exceptional circumstances' justifying the extraordinary relief requested."). In evaluating a Rule 60(b) motion, the courts of this circuit also require that the evidence in support of the motion be highly convincing, that the movant show good cause for the failure to act sooner, and that no undue hardship be imposed on the other parties as a result. See, e.g., Kotlicky v. U.S. Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir.1987); Williams v. New York City Dep't of Corr., 219 F.R.D. 78, 84 (S.D.N.Y.2003).

2. Exhaustion of Scott's Administrative Remedies (Causes of Action 1 & 3)

The crux of Scott's motion is that in light of cases decided by the Second Circuit in August, 2004, the Court should reconsider its determination that he failed to exhaust his administrative remedies with respect to the retaliatory urine tests.

A. The Court's October 2003 Holding with Respect to Exhaustion

As recounted in the Opinion, Section 1997e(a) of the Prison Litigation Reform Act ("PLRA") states that:

No action shall be brought with respect to prison conditions under section 1983 ... or any other federal law ... by a prisoner ... until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a).

Courts interpreting this statutory provision have held that § 1983 claims brought by inmate plaintiffs must be dismissed if administrative remedies have not been exhausted. See Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Alexandroai v. California Dep't of Corrections, 985 F.Supp. 968, 970 (S.D.Cal.1997) (plaintiff must "work within the prison system to have his case heard and then come to the Court after he has exhausted his administrative remedies as required by federal law"). The Supreme Court has held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002).

Based on PLRA § 1997e(a) and the cases interpreting it, the Opinion held that Scott had not exhausted his administrative remedies as to any of the alleged retaliatory urine tests. On this basis, all of the first cause of action and parts of the third cause of action were dismissed.

B. Recent Second Circuit Decisions

The Second Circuit addressed the PLRA § 1997e(a) exhaustion requirements in five companion cases decided on August 18, 2004. First, in Ortiz v. McBride, 380 F.3d 649, 663 (2d Cir.2004), the Circuit Court held that the presence of unexhausted claims in an inmate's § 1983 complaint does not compel dismissal of the action in its entirety. Second, in Giano v. Goord, 380 F.3d 670 (2d Cir.2004), the Circuit Court held that "there are certain `special circumstances' in which, though administrative remedies may have been available and though the government may not have been estopped from asserting the affirmative defense of non-exhaustion, the prisoner's failure to comply with administrative procedural requirements may nevertheless be justified." Id. at 676. Specifically, the Giano Court held that failure to exhaust administrative remedies is justified where the inmate reasonably believed that "DOCS regulations foreclosed such recourse." Id. at 678. Third, in Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.2004), the Circuit Court held that whether an inmate's appeal of a disciplinary conviction sufficed to exhaust administrative remedies hinged on whether the appeal provided "enough information about the conduct of which [the inmate] complain[s] to allow prison officials to take appropriate responsive measures." Fourth, in Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir.2004), the Circuit Court held that "[a] prisoner who has not received promised relief is not required to file a new grievance where doing so may result in a never-ending cycle of exhaustion." Fifth, in Hemphill v. New York, 380 F.3d 680 (2d Cir.2004), the Circuit Court held: (1) that the standard for assessing the availability of a grievance procedures is whether "`a similarly situated individual of ordinary firmness'" would have deemed the procedure available, id. at 688 (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003)); (2) that a defendant's actions inhibiting an inmate's exhaustion of remedies may estop assertion of failure to exhaust as an affirmative defense, id. at 686; and (3) that reasonable fear of retaliation is a "special circumstance" that justifies failure to exhaust available administrative remedies. Id. at 690.

C. Rule 60(b)(6) and Intervening Changes in Law

"Intervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6) ...." Agostini v. Felton, 521 U.S. 203, 239, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); see also Travelers Indem. Co. v. Sarkisian, 794 F.2d 754, 757 (2d Cir.1986). However, where a "supervening change in governing law calls into serious question the correctness of the court's judgment," Sargent v. Columbia Forest Prod., Inc., 75 F.3d 86, 90 (2d Cir.1996), a Rule 60(b)(6) motion may be granted. See, e.g., Devino v. Duncan, 215 F.Supp.2d 414, 418 (S.D.N.Y.2002).

Based on the Second Circuit holding in Sargent, courts of this district have used a four-factor test to determine whether an intervening change of law...