Girard v. Cuttle et al, No. 9:2015cv00187 - Document 124 (N.D.N.Y 2016)
Court Description: DECISION AND ORDER: ORDERED that the defendant Cuttle, and the Fourteenth Amendment due process claim against him (as set forth in the amended complaint) are DISMISSED from this action without prejudice. Signed by Senior Judge Thomas J. McAvoy on 8/3/16. (served in plaintiff by regular mail)(alh, )
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Girard v. Cuttle et al Doc. 124 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK CHAUNCEY GIRARD, Plaintiff, v. 9:15-CV-0187 (TJM/DJS) CUTTLE, et al., Defendants. APPEARANCES: OF COUNSEL: CHAUNCEY GIRARD 11-A-1352 Plaintiff, pro se Great Meadow Correctional Facility Box 51 Comstock, NY 12821 HON. ERIC T. SCHNEIDERMAN New York State Attorney General Attorney for Represented Defendants The Capitol Albany, New York 12224 JOHN F. MOORE, ESQ. Ass't Attorney General THOMAS J. MCAVOY Senior United States District Judge DECISION and ORDER Pro se plaintiff Chauncey Girard commenced this civil rights action pursuant to 42 U.S.C. ยง 1983 ("Section 1983"). The amended complaint, as modified by a Decision and Order filed on March 4, 2016, is the operative pleading. Dkt. No. 83 ("Am. Compl"); see also Dkt. No. 82 (the "March 2016 Order"). Among other things, and as relevant to this Decision and Order, the March 2016 Order found that plaintiff's Fourteenth Amendment due process claim against defendant Cuttle arising out of a disciplinary proceeding at which defendant Dockets.Justia.com Cuttle was the presiding hearing officer survived sua sponte review. March 2016 Order at 7-8. However, because plaintiff was subjected to "mixed sanctions" affecting both the duration of his confinement (i.e., the recommended loss of good time) and the conditions of his confinement as a result of that disciplinary hearing, plaintiff was advised that in order to proceed with his claims against defendant Cuttle arising out of the disciplinary proceeding held before him, plaintiff must first submit a so-called "Peralta Waiver" in which he "waives for all times all claims in this action relating to disciplinary sanctions affecting the duration of his confinement (i.e., the recommended loss of good time) in order to proceed with his claims challenging the sanctions affecting the conditions of his confinement." March 2016 Order at 8-10, 19.1 "The Court specifically advise[d] plaintiff that the Court will deem his failure to file this statement (the "Peralta Waiver") within the required time to constitute his refusal to waive these claims, and such failure will result in the dismissal of defendant Cuttle, and the Fourteenth Amendment due process claim against him, from this action without prejudice." Id. at 10. In response to the March 2016 Order, plaintiff submitted a document wherein he argued that defendant Cuttle should remain as a defendant because plaintiff believed that he had alleged a meritorious due process claim against him. Dkt. No. 87 at 2-3. By Decision and Order filed on April 4, 2016, the Court found as follows: Plaintiff's assertion that his due process claim against defendant Cuttle has merit does not overcome the fact that Peralta requires plaintiff to waive his challenge to the recommended loss of good time for all time in order to proceed 1 Because plaintiff was subjected to "mixed sanctions" in the disciplinary proceeding complained of, and because he has not demonstrated that these determinations have been invalidated, his claims are barred by the favorable termination rule of Heck v. Humphrey, 512 U.S. 477 (1994), unless "he is willing to forgo once and for all any challenge to any sanctions that affect the duration of his confinement." Peralta v. Vasquez, 467 F.3d 98, 104 (2d Cir. 2006). 2 at this time with his challenge to the sanctions that affected the conditions of his confinement. See Peralta, 467 F.3d at 104. Dkt. No. 88 (the "April 2016 Order) at 3. In light of his pro se status, plaintiff was afforded a "second (and last) opportunity to submit the required Peralta Waiver if he wishe[d] to proceed with his Fourteenth Amendment due process claim arising out of the disciplinary proceeding conducted by defendant Cuttle." Id. at 3-4. Repeating the warning issued in the March 2016 Order, the Court again advised plaintiff that the "Peralta Waiver must clearly and unequivocally state that plaintiff waives for all times all claims in this action against defendant Cuttle relating to disciplinary sanctions affecting the duration of plaintiff's confinement (i.e., the recommended loss of good time) in order to proceed with his claims against defendant Cuttle challenging the sanctions affecting the conditions of his confinement." April 2016 Order at 4 (citing March 2016 Order at 8-10, 19). Plaintiff subsequently submitted a document bearing the heading "Motion for Peralta Waiver." Dkt. No. 95. By this submission, plaintiff purported to comply with the waiver requirement of Peralta but, instead, stated Plaintiff waive[s] at this time as to Amend at a later time all Claims in this action affecting the Loss of Good time and Duration of Confinement to bring Violation of Due Process Claim Upon Defendant Cuttle. Id. at 2 (emphasis added). After carefully scrutinizing plaintiff's submission, the Court was unable to construe it as a waiver for all times for all claims in this action relating to disciplinary sanctions affecting the duration of his confinement. By Decision and Order filed May 12, 2016, the Court advised plaintiff that he "may not waive his ability to challenge the loss of good time claims 'for all times' (as is required by Peralta) and at the same time retain the ability to amend those claims." Dkt. No. 109 (the "May 2016 Order") at 3. 3 In light of plaintiff's pro se status, and because he may have misunderstood the effect of a Peralta Waiver, he was afforded a third and final opportunity to submit the waiver required by Peralta if he wished to proceed with his due process claims arising out of the disciplinary proceeding presided over by defendant Cuttle. May 2016 Order at 4. Plaintiff was again advised that any Peralta waiver must clearly and unequivocally state that he "waives for all times all claims against defendant Cuttle in this action relating to disciplinary sanctions affecting the duration of his confinement (i.e., the recommended loss of good time) in order to proceed with his claims against defendant Cuttle challenging the sanctions affecting the conditions of his confinement." Id. at 3-4 (citing March 2016 Order at 10; April 2016 Order at 4). Plaintiff was warned that in the event a proper Peralta Waiver was not filed within twenty (20) days of the date of May 2016 Order, his due process claims against defendant Cuttle would be dismissed without prejudice in accordance with Heck v. Humphrey. After the May 2016 Order issued, plaintiff requested and was granted an extension of time until July 6, 2016, to submit a Peralta Waiver. Dkt. Nos. 111, 113. Despite the extension of time, and multiple opportunities afforded to plaintiff to comply with the Court's orders, plaintiff has not submitted a Peralta Waiver. WHEREFORE, it is hereby ORDERED that the defendant Cuttle, and the Fourteenth Amendment due process claim against him (as set forth in the amended complaint) are DISMISSED from this action 4 without prejudice; 2 and it is further ORDERED that the Clerk shall serve a copy of this Decision and Order on the parties. IT IS SO ORDERED. Dated:August 3, 2016 2 See Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) (stating that dismissal under Heck is without prejudice and that, if the plaintiff's conviction or sentence is later declared invalid or called into question by a federal court's issuance of a writ of habeas corpus, he may reinstate his suit). 5
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