Brown v. Jones

• Decision Date: 15 October 2021
• Docket Number: 15-CV-6108-EAW-MJP
• Parties: TOMMY LEE BROWN, Plaintiff, v. JERRY JONES, JEFFREY CAREY, JOSEPH J. AVERY, MICHAEL RELF, PATRICK D. BURNS, THOMAS W. NOVAK, SR., BRUCE SCHMITT, MATTHEW RANGER, CHARLES BAILOR, and ADAM PARADOWSKI, Defendants.
• Court: U.S. District Court — Western District of New York

TOMMY LEE BROWN, Plaintiff, v. JERRY JONES, JEFFREY CAREY, JOSEPH J. AVERY, MICHAEL RELF, PATRICK D. BURNS, THOMAS W. NOVAK, SR., BRUCE SCHMITT, MATTHEW RANGER, CHARLES BAILOR, and ADAM PARADOWSKI, Defendants.

No. 15-CV-6108-EAW-MJP

United States District Court, W.D. New York

October 15, 2021

For Plaintiff: Amy Jane Agnew, Esq. Law Office of Amy Jane Agnew P.C.

For Defendants/Counterclaimants: Hillel David Deutsch, A.A.G N.Y.S. Attorney General's Office Department of Law

REPORT AND RECOMMENDATION

MARK W. PEDERSEN United States Magistrate Judge

INTRODUCTION

Plaintiff Tommy Lee Brown (“Plaintiff”) commenced this action pro se on March 2, 2015, alleging various constitutional claims under 42 U.S.C. § 1983, which Plaintiff asserts occurred during his incarceration at Five Points Correctional Facility (“Five Points”). Plaintiff is now represented by counsel. Presently before this Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure (“FRCP”) 56 on the counterclaims made by Jeffery Carey, Michael Relf, Patrick D. Burns, and Bruce Schmitt (“Counterclaimants”). (ECF No. 187.) Counterclaimants assert two counterclaims: (1) battery; and (2) assault. (Am. Answer to Second Am. Compl. at 7-8, ECF No 196.) Also before the Court is Plaintiff's cross-motion to hold Counterclaimants' motion for summary judgment in abeyance until discovery is complete pursuant to FRCP 56(d). (Agnew Decl., June 3, 2021, ECF No. 200.)

After reviewing the motion papers, the undersigned recommends that the District Court (1) deny Plaintiff's cross-motion to hold Counterclaimants' motion for summary judgment in abeyance until discovery is complete; and (2) grant Counterclaimants' motion for summary judgment on the ground that Plaintiff failed to submit an opposing statement of facts thus rendering the unopposed, supported facts deemed admitted.

Should the Court deny Counterclaimants' summary judgment motion they ask that the Court deem the findings by the Department of Correctional and Community Services (“DOCCS”) hearing officer as conclusive on the issue of whether Plaintiff assaulted Counterclaimants and prohibit Plaintiff from testifying contrary to that determination. The undersigned recommends that the District Court deny that application due to an ambiguity in the DOCCS' officer's determination.

STANDARD OF LAW

The Honorable Elizabeth A. Wolford referred this matter to the undersigned to “hear and report upon dispositive motions for the consideration of the District Judge pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C). All motions or applications shall be filed with the Clerk of Court and made returnable before the Magistrate Judge.” (ECF No. 208.)

FRCP 56 provides that summary judgment should be granted if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the Court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).

“The moving party bears the burden of showing the absence of a genuine dispute as to any material fact . . . .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial.” Johnson v. Xerox Corp., 838 F.Supp.2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the moving party has met its burden, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)). Specifically, the non-moving party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654 F.3d at 358. Indeed, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

This District's Local Rule of Civil Procedure 56(a) requires the submission of a statement of undisputed facts in support of a summary judgment motion and further requires the opposing party to provide a response. Local Rule of Civil Procedure 56(a)(2) provides: “[e]ach numbered paragraph in the moving party's statement of material facts may be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement.” Although a district court should not deem unopposed facts to be admitted when those facts are unsupported by the record, Holtz v. Rockefeller & Co., 258 F.3d 62, 73-74 (2d Cir. 2001), a district court has discretion to deem facts admitted for lack of compliance with its local rules. See N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (it was within district court's discretion to deem the moving party's statement of material facts admitted where the opposing party “offered mostly conclusory denials” and “failed to include any record citations” contrary to the district's local rules); Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998) (because plaintiff failed to respond to defendant's statement of material facts submitted in accordance with local rules, “the material facts contained in his statement are deemed to be admitted as a matter of law”).

DISCUSSION

Findings of Fact Regarding Plaintiff's Cross-Motion to Hold Counterclaimants' Motion for Summary Judgment in Abeyance Until Discovery is Complete Pursuant to FRCP 56(d).

In opposition to Counterclaimants' motion for summary judgment, Plaintiff cross-moved to hold Counterclaimants' application in abeyance pursuant to FRCP 56(d) on the basis that Plaintiff requires more discovery to oppose the motion. More specifically, Plaintiff contends that he has not yet served any discovery demands related to the counterclaims and intends to make “extensive requests . . . when the triggering motion is resolved and discovery recommences.” (Agnew Decl. at 2^[1], June 3, 2021, ECF No. 200.)

Plaintiff further contends that, despite counsel's diligent efforts otherwise, Plaintiff does not have a complete record on appeal for his related criminal case and that he is still trying to obtain the complete record. (Id. at 3.) Plaintiff also asserts that “the cross-claims for assault and battery pleaded by Defendants Relf, Schmitt Burns and Carey raise novel questions of law that deserve complete discovery to adjudicate the issues-including whether a DOCCS disciplinary hearing adjudication should be preclusive when a criminal court proceeding on the very same facts did not end in judgment against the prisoner. (Pl.'s letter brief at 2-3, ECF No. 201.)

Finally, Plaintiff seeks an abeyance on the basis that Plaintiff previously moved for the appointment of a guardian ad litem and believes that the resolution of that motion is necessary to permit counsel to have fruitful conversations with

Plaintiff regarding the counterclaims and litigation strategy. (Agnew Decl. at 4.)

Conclusions of Law Regarding Plaintiff's Cross-Motion to Hold Counterclaimants' Motion for Summary Judgment in Abeyance Until Discovery is Complete Pursuant to FRCP 56(d).

FRCP 56(d) permits a court, in the exercise of its discretion, to defer or deny a decision on summary judgment if a “nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” A party resisting summary judgment on the ground that it needs additional discovery in order to defeat the motion must submit an affidavit pursuant to FRCP 56(d) (formerly Rule 56(f)), showing: “‘(1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.'” Meloff v. N.Y. Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995) (quoting Hudson River Sloop Clearwater, Inc. v. Dep't of Navy, 891 F.2d 414, 422 (2d Cir. 1989)); Taylor v. City of Rochester, 458 F.Supp.3d 133, 139 (W.D.N.Y. 2020) (same).

Courts have declined to continue discovery pursuant to Rule 56(d) where the affidavits submitted in support of the request insufficiently or in a conclusory manner described forthcoming evidence and how that evidence would demonstrate the existence of a genuine issue of material fact. See e.g., Gualandi v. Adams, 385 F.3d 236, 245 (2d Cir. 2004) (affirming district court's implicit denial of discovery where plaintiff failed to “demonstrate that additional discovery was needed in order to decide the jurisdictional issue”); United States v. Private Sanitation Indus. Ass'n, 995 F.2d 375, 377 (2d Cir. 1993) (affirming district court's denial of discovery where affidavit “only speculated about what further discovery might reveal” and failed to “describe[ ] in specific terms evidence that might be forthcoming and would demonstrate that a...