Dicks v. Chow , 382 F. App'x 28 ( 2010 )

07-3477-pr
Dicks v. Chow
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 24th day of June, two thousand ten.
PRESENT:
GUIDO CALABRESI,
ROSEMARY S. POOLER,
DENNY CHIN,
Circuit Judges.
Jeffrey Dicks,
Plaintiff-Appellant,
v. 07-3477-pr
Janet Chow, of Binding Together Inc.,
Joseph Williams, Warden of Lincoln Correctional
Facility,
Defendants,
Members of the Temporary Release Committee,
Carrington, Parole Officer, Fair, Corrections
Officer, Donna McDonald, Joan Taylor, Senior
Counselor, Maria Tirone, Deputy Superintendent,
Defendants-Appellees,
The Department of Corrections,
Defendant,
The State of New York, Binding Together Inc.,
Defendants-Appellees.
FOR APPELLANT: Jeffrey Dicks, pro se, Brooklyn, NY.
FOR APPELLEES: Steven C. Wu, Assistant Solicitor General,
of Counsel (Andrew Cuomo, Attorney General of
the State of New York, Barbara D. Underwood,
Solicitor General, Benjamin N. Gutman, Deputy
Solicitor General), New York, NY.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Jeffrey Dicks, pro se, appeals a judgment of the
United States District Court for the Southern District of New
York (Baer, J.), entered after the district court granted
Appellees’ motion for judgment as a matter of law, pursuant to
Federal Rule of Civil Procedure 50(a), in Appellant’s 42 U.S.C.
§ 1983 action, and dismissed Appellant’s claims against Defendant
Brewington for improper service. We assume the parties’
familiarity with the underlying facts, the procedural history of
the case, and the issues on appeal.
I. Dismissal for Lack of Service
We review a district court’s dismissal for untimely service
for an abuse of discretion. See Zapata v. City of New York, 502
F.3d 192, 195 (2d Cir. 2007) (affirming the district court’s
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dismissal where the record showed that the plaintiff had made no
effort to effect service and had not moved for an extension
within a reasonable time). We have held that a district court
abuses its discretion when it dismisses a complaint sua sponte
for lack of service without first giving notice to the plaintiff.
See Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002).
Here, we find no abuse of discretion, as the claim was dismissed
over a year after the filing of the amended complaint, the court
provided notice that the unserved defendants would be dismissed,
and Appellant has never asserted any good cause for his failure
to effect service. See Zapata, 502 F.3d at 196.
II. Rule 50(a) Motion
“We review the district court’s [grant] of a motion for
judgment as a matter of law de novo, applying the same standards
as the district court to determine whether judgment as a matter
of law was appropriate.” Coffey v. Dobbs Int’l Servs. Inc., 170
F.3d 323, 326 (2d Cir. 1999)(internal quotation omitted) Argument
as a matter of law is appropriate when ‘a party has been fully
heard on an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party on that
issue.’” Jarvis v. Ford Motor Co., 283 F.3d 33, 43 (2d Cir.
2002) (quoting Fed. R. Civ. P. 50(a)). Thus, “the trial court is
required to consider the evidence in the light most favorable to
the party against whom the motion was made and give that party
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the benefit of all reasonable inferences that the jury might have
drawn in his favor from the evidence.” Id. (internal quotation
omitted).
A. Due Process
It is well-settled that prisoners have a liberty interest in
their continued participation in a work release program. See
Friedl v. City of New York, 210 F.3d 79, 84 (2d Cir. 2000). In
the work release revocation context, due process requires:
(1) written notice of the claimed basis for revocation;
(2) disclosure of evidence against the inmate; (3) an opportunity
to be heard in person and to present evidence; (4) the right to
confront and cross-examine adverse witnesses; (5) a neutral
hearing body; and (6) a written statement by the factfinder
detailing the reasons for revocation and identifying “some
evidence” in the record to support the findings. Id.Here, Appellant received all the process that he was due.
With respect to the April 2002 hearing that resulted in his
removal from the work release program, Appellant acknowledges
having received notice of the charges approximately two days
prior to the hearing. Furthermore, the record demonstrates that
Appellant was present at the hearing and received a written
statement explaining the basis for the resulting recommendation.
There is no support in the record for a finding that Appellant
was denied the right to present evidence or confront witnesses.
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We do not consider Appellant’s arguments, raised for the first
time on appeal, that he was entitled to an inmate assistant in
preparation for the hearings or that the hearings placed him in
double jeopardy. See Singleton v. Wulff, 428 U.S. 106, 120
(1976) (“It is the general rule . . . that a federal appellate
court does not consider an issue not passed upon below.”).
With respect to the March 2002 hearing that resulted in the
imposition of a 90-day probationary period and loss of furloughs,
Appellant’s only argument on appeal involves a conflict of
interest in the presence on the hearing committee of a parole
officer with prior knowledge of Appellant; however, this alone is
insufficient for a finding of bias. See Francis v. Coughlin, 891
F.2d 43, 46 (2d Cir. 1989) (“Because of the special
characteristics of the prison environment, it is permissible for
the impartiality of such officials to be encumbered by various
conflicts of interest that, in other contexts, would be adjudged
of sufficient magnitude to violate due process.”).
B. Access to Courts
Prisoners have a “fundamental constitutional right of access
to the courts,” in light of which “prison authorities [have an
obligation] to assist inmates in the preparation and filing of
meaningful legal papers.” Bounds v. Smith, 430 U.S. 817, 828
(1977). In order to establish a violation of this right, an
inmate must demonstrate that he was “hindered [in] his efforts to
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pursue a legal claim. . . . for example, that a complaint he
prepared was dismissed for failure to satisfy some technical
requirement which, because of deficiencies in the prison’s legal
assistance facilities, he could not have known.” Lewis v. Casey,
518 U.S. 343,351(1996). Here, although Appellant’s appeal of the
denial of his motion under New York Criminal Procedure Law §
440.10 was not docketed because of his failure to properly file
it, there is no evidence demonstrating that he could not have
known where to file the appeal, nor would such an inference be
reasonable in light of his two previous appeals from the denials
of § 440.10 motions.
C. Free Exercise
The PLRA’s requirement that prison inmates exhaust
administrative remedies prior to seeking relief in federal court,
see 42 U.S.C. § 1997e(a), “applies to all inmate suits about
prison life,” Porter v. Nussle, 534 U.S. 516, 532 (2002). Failure
to exhaust may be excused only where: (1) administrative remedies
were not in fact “available”; (2) prison officials have
forfeited, or are estopped from raising, the affirmative defense
of non-exhaustion; or (3) “special circumstances . . . justify
the prisoner’s failure to comply with administrative procedural
requirements.” Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.
2004) (internal quotation marks omitted).
Although Appellant testified to having filed a grievance
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with regard to his free exercise claim, it is undisputed that he
did not file an appeal. Nor does a de novo review of the record
reveal any basis for excusing his failure. Appellees properly
raised the issue of exhaustion, and Appellant did not demonstrate
that any behavior by the defendants rendered his administrative
remedies unavailable or that any “special circumstances”
justified his failure to exhaust. See Hemphill, 380 F.3d at 686.
Accordingly, judgment as a matter of law on this claim was
appropriate. See ACEquip Ltd. v. Am. Eng’g Corp., 315 F.3d 151,
155 (2d Cir. 2003) (“Our court may . . . affirm the district
court’s judgment on any ground appearing in the record, even if
the ground is different from the one relied on by the district
court.”).
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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