Dicks v. Chow

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

5
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

6
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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