DeLee v. Russo et al, No. 1:2017cv00448 - Document 65 (W.D.N.Y. 2019)

Court Description: DECISION AND ORDER: For the reasons set forth in the attached Decision and Order, plaintiff DeLee's 61 motion for reconsideration of the Decision and Order issued on October 18, 2019 is denied. A copy of this Decision and Order along with this docket entry have been mailed to Maurice Larry DeLee, 07-B-0369, FRANKLIN CORRECTIONAL FACILITY, Box 10, Malone, NY 12953-0010. SO ORDERED. Signed by Hon. Richard J. Arcara on 11/5/2019. (LAS)

Download PDF
DeLee v. Russo et al Doc. 65 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK MAURICE LARRY DeLEE, Plaintiff, DECISION AND ORDER 17-CV-448-A v. MR. RUSSO, et al., Defendants. Plaintiff Maurice Larry DeLee has filed a pro se motion for reconsideration of an October 18, 2019 Decision and Order dismissing his prisoner’s civil rights action pursuant to 42 U.S.C. § 1997e(a) and Fed. R. Civ. P. 12(b)(6) because plaintiff DeLee failed to exhausted administrative remedies before commencing the action. For the reasons that follow, the motion is denied. In his motion for reconsideration, plaintiff DeLee overlooks that the Court explicitly dismissed the action without prejudice. See Dkt. Nos. 56, 57, and 61, p.1. Accordingly, to the extent that the relief the plaintiff is seeking is the option to re-file the action because his administrative remedies were exhausted after the case was filed, the motion for reconsideration is moot. He can re-file. Plaintiff DeLee argues that the Court should reconsider the October 18, 2019 Decision and Order because it “failed to address” that his administrative remedies were exhausted after the action was filed. That is incorrect. See Dkt. No. 56, pp. 2-5. The Court noted that plaintiff filed the case before his final administrative appeal was Dockets.Justia.com due to be decided by the Central Office Review Committee, listed the steps plaintiff took to exhaust his administrative remedies, and acknowledged that his final administrative appeal was decided on or about June 13, 2018, which was more than a year after the case was filed. Id. Finally, none of the case law upon which plaintiff DeLee relies in his motion for reconsideration supports his request that the Court excuse his failure to exhaust his administrative remedies before filing this action. Plaintiff overlooks that the Supreme Court’s decision in Ross v. Blake, 136 S.Ct. 1850 (2016), changed the applicable standard under 42 U.S.C. § 1997e(a) and the “special circumstances test” for excusing a prisoner’s failure timely to exhaust administrative remedies. The plaintiff cites no controlling decision that the Court overlooked or misapprehended in dismissing his action without prejudice, no intervening change in law, and the Court therefore finds for all of the above reasons that plaintiff’s motion for reconsideration is without merit. The motion for reconsideration (Dkt. No. 61) is therefore denied. IT IS SO ORDERED. _s/Richard J. Arcara________ HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT COURT Dated: November 5, 2019 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.