Amaker v. Foley

Decision Date01 August 2001
Docket NumberDocket No. 01-0018
Citation274 F.3d 677
Parties(2nd Cir. 2001) ANTHONY D. AMAKER, PLAINTIFF - APPELLANT, v. FOLEY, C.O., FLECKERSTEIN, C.O., MONIN, SGT., G. STRUBBEL, CONNORS, C.O., BEING SUED INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES FOR VIOLATION OF PLAINTIFF'S CONSTITUTIONAL RIGHTS, DEFENDANTS - APPELLEES, ZON, SUPT. DEPUTY, DONNELLY, SUPT. DEPUTY, WALTER R. KELLY, SUPT., SUGG, C.O., DEFENDANTS
CourtU.S. Court of Appeals — Second Circuit

Anthony D. Amaker, Dannemora, Ny, on submission, pro se.

Martin A. Hotvet, Assistant Solicitor General, Albany, NY (Peter H. Schiff, Senior Counsel, on the brief), for Eliot Spitzer, Attorney General of the State of New York, on submission, for appellees.

Before: Cardamone, McLAUGHLIN, and Sotomayor, Circuit Judges.

Sotomayor, Circuit Judge.

Plaintiff Anthony D. Amaker, proceeding pro se, appeals from an entry of judgment in favor of defendants by the United States District Court for the Western District of New York (Elfvin, J.). The district court granted the defendants' motion for summary judgment solely on the basis that plaintiff had failed to submit any papers or evidence in opposition to the motion by the deadline imposed under the court's scheduling order. Because dismissal on this ground inappropriately relieved defendants of their initial burden under Fed. R. Civ. P. 56 to show the absence of any genuine issue of material fact, we vacate the judgment and remand for further proceedings.

BACKGROUND

Plaintiff, an inmate at the Clinton Correctional Facility, brought this action against defendants, the superintendent and various correctional officers at Clinton, primarily under 42 U.S.C. § 1983. Plaintiff claims, inter alia, that defendants discriminated against him because of his race in violation of the Equal Protection Clause of the Fourteenth Amendment. The district court appointed counsel for plaintiff in September 1998, but that counsel withdrew in November 1999, leaving plaintiff to proceed pro se.

On January 28, 2000, defendants moved for summary judgment on all claims. As is required where pro se litigants are concerned, see Irby v. N.Y. City Transit Auth., 262 F.3d 412, 413-14 (2d Cir. 2001), defendants' notice of motion advised the plaintiff of his obligations as the non-movant under Fed. R. Civ. P. 56:

[W]hen a Motion for Summary Judgment is made and properly supported, you may not simply rely upon your Complaint, but you must respond, by Affidavit or as otherwise provided in that rule, setting forth specific facts showing that there is a genuine issue or [sic] material facts [sic] for trial. Any factual assertions in our Affidavits will be accepted by the Magistrate Judge as being true, unless you submit Affidavits or other documentary evidence contradicting our assertions. If you do not so respond, summary judgment, if appropriate, may be entered against you.

Defs.' Notice of Mot. at 2. The clerk of the district court followed this notice of motion with a notice advising plaintiff that any papers in opposition, or any affidavit asserting the need for further discovery under Fed. R. Civ. P. 56(f), must be served and filed no later than March 24, 2000. The notice from the court did not, however, say anything further about the consequences of failure to respond to the motion.

In response to plaintiff's inquiries regarding the appointment of new counsel, a staff attorney from the district court wrote plaintiff a letter dated March 13, 2000, which stated, in pertinent part,

Please be advised that Judge Elfvin is well aware of your situation and is working on obtaining counsel for you. Your case will not be adversely affected by the time it takes Judge Elfvin to assign a new attorney for you. Please be patient and do not file any more motions for counsel. The assignment will be made in due course, and until it is, you may relax and await the Court's instructions.

Letter from Hecker to Amaker of 3/13/2000, at 1 (attached to appellant's brief). New counsel was appointed on September 13, 2000. At a status conference on October 25, 2000, plaintiff's new counsel was informed that the deadline for opposition to defendant's summary judgment motion was November 29, 2000, and that if no opposition was received, the motion would be granted. It does not appear that any notification of this schedule, nor any notification that failure to respond by the deadline would result in the court's granting the motion, was ever sent directly to plaintiff.

The first attempt made by plaintiff's new counsel to contact him regarding opposition to the motion was apparently by letter dated November 27, 2000 - i.e., two days prior to the deadline for opposing papers to be filed. Although plaintiff supplied counsel with at least one affidavit and one set of interrogatory responses in opposition to the motion, counsel did not receive these until December 4, 2000.

On December 5, 2000, the district court entered an order granting summary judgment to defendants. The order did not specifically state the basis for dismissal, although it contained a series of "whereas" clauses, the final two of which were as follows:

WHEREAS during the status conference [of October 25, 2000] the undersigned told [plaintiff's newly appointed counsel] that, if plaintiff failed to respond to the defendants' summary judgment motion by November 29, 2000, summary judgment would be granted, and

WHEREAS no response to the defendants' summary judgment motion was filed by or on behalf of plaintiff by November 29, 2000, as ordered, it is hereby

ORDERED that defendant's motion for summary judgment is granted and that this case shall be closed.

Order of Judge Elfvin, dated 12/5/2000, at 2.

In a letter to the court dated December 14, 2000, plaintiff's counsel requested additional time to file affidavits in opposition, stating that he had "finally received a letter" from plaintiff on December 4 - but not mentioning that counsel had failed to contact plaintiff until November 27. The letter requested an additional thirty days to respond to the defendants' summary judgment motion, and further stated that the request would be made by way of a formal motion under Fed. R. Civ. P. 60 if the court desired. By letter of December 15, the district court responded to counsel simply that the motion had been granted. In a letter dated December 22, 2000, counsel informed plaintiff of the court's decision, explained the time limits for filing a notice of...

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