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Fusco v. City of Rensselaer

March 22, 2006

FREDERICK M. FUSCO, PLAINTIFF,
v.
THE CITY OF RENSSELAER, NEW YORK; MARK G. PRATT, INDIVIDUALLY AND IN HIS CAPACITY AS MAYOR OF THE CITY OF RENSSELAER, NEW YORK; BONNIE LEE HAHN, INDIVIDUALLY AND IN HER CAPACITY AS MEMBER OF THE COMMON COUNCIL AND BOARD OF PUBLIC SAFETY OF THE CITY OF RENSSELAER, NEW YORK; ALBERTINE FELTS, INDIVIDUALLY AND IN HER CAPACITY AS MEMBER OF THE COMMON COUNCIL AND BOARD OF PUBLIC SAFETY OF THE CITY OF RENSSELAER, NEW YORK; PATRICIA JACKSON, INDIVIDUALLY AND IN HER CAPACITY AS MEMBER OF THE COMMON COUNCIL AND BOARD OF PUBLIC SAFETY OF THE CITY OF RENSSELAER, NEW YORK; BRIAN STALL, INDIVIDUALLY AND IN HIS CAPACITY AS MEMBER OF THE COMMON COUNCIL AND BOARD OF PUBLIC SAFETY OF THE CITY OF RENSSELAER, NEW YORK; AND ROBERT MOONEY, INDIVIDUALLY AND IN HIS CAPACITY AS POLICE SERGEANT OF THE CITY OF RENSSELAER, NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

On January 12, 2003, Plaintiff Frederick M. Fusco commenced an action pursuant to 42 U.S.C. § 1983 alleging various civil rights violations arising during the course of his employment as Chief of Police for the City of Rensselaer, New York. See Compl. [dkt. # 1]. On January 8, 2004, Fusco filed an Amended Complaint slightly amending his allegations. See Am. Compl. [dkt. # 4]. Following the various defendants' motions to dismiss the Amended Complaint, this Court issued a Decision and Order dated August 13, 2004 dismissing the case in its entirety but giving Plaintiff leave to replead a Fourteen Amendment equal protection claim and a First Amendment retaliation claim. See 8/13/04 Decision and Order [dkt. # 58].*fn1 On September 13, 2004, Plaintiff filed a Second Amended Complaint repleading these two claims. See 2nd Am. Compl. [dkt. # 59]. Presently before the Court are: (1) Defendants City of Rensselaer, Mark Pratt, Brian Stall, Bonnie Hahn, Patricia Jackson, and Albertine Felts' (collectively "City Defendants") motion pursuant to FED. R. CIV. P. 8(a), 12(b)(1), 12(b)(6), 12(c), and 56 seeking to dismiss the claims against them in the Second Amended Complaint [dkt. # 71]; and (2) Defendant Robert J. Mooney's motion pursuant to FED. R. CIV. P. 8(a) and 56 seeking to dismiss the claims against him in the Second Amended Complaint [dkt. # 73]. After the Court permitted the parties a lengthy adjournment to explore settlement, Plaintiff filed his opposition to the motion [dkt. # 81-# 83]. The matter is now fully submitted. For the reasons that follow, both motions are granted and the action is dismissed.

II. STANDARD OF REVIEW

All defendants moved, at least in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Notices of Motion and Defendants' arguments in support thereof clearly put Plaintiff on notice that Defendants seek a substantive evaluation of Plaintiff's claims under the Rule 56 standard. Plaintiff responded to the motions by submitting his own affidavit [dkt. # 84] and responding Local Rule 7.1(a)(3) Statements [dkt. # 82 & # 83].

Although Plaintiff argues that additional discovery is required before subjecting the case to a Rule 56 analysis, his arguments do not meet the standard set forth in FED. R. CIV. P. 56(f) and Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 891 F.2d 414, 422 (2d Cir. 1989).*fn2

Further, Plaintiff responds with arguments addressed to matters beyond the pleadings. Accordingly, the Court analyzes both motions under the Rule 56 standard.

It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 592 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the Court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). While the Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in his favor, Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002), a party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d. Cir. 1998). As one legal treatise has succinctly stated, summary judgment requires the parties to "put up or shut up." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)(quoting Fleming James, Jr. & Geoffrey C. Hazard, Jr., Civil Procedure 150 (2d ed. 1977)).

The Local Rules of the Northern District provide a mechanism for the efficient resolution of summary judgment motions. See N.D.N.Y.L.R. 7.1(a)(3).*fn3 This mechanism places the onus on the parties to marshal the evidence that either supports, or defeats, the motion. Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 291 (2d Cir. 2000)(The Court's Local Rules require the parties "to clarify the elements of the substantive law which remain at issue because they turn on contested facts" and the Court "is not required to consider what the parties fail to point out.")(internal quotation marks and citations omitted); see also Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002)("We agree with those circuits that have held that FED. R. CIV. P. 56 does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute.")(citations omitted).

In the instant case, Defendants have submitted Local Rule 7.1 Statements of Material Facts ("7.1 Stat.") that contain specific citations to the record indicating where each fact is purportedly established. See dkt. # 71-35 (City Defendants' 7.1 Stat.); # 73-4 (Def. Money's 7.1 Stat.). In opposition, Plaintiff submitted mirrored 7.1 Statements that either admit or deny the allegations in the Defendants' 7.1 Statements, but, with one exception in each responsive 7.1 Statement, that provide no citations to the record.*fn4 That being the case, all properly supported factual allegations contained in Defendants' 7.1 Statements are deemed admitted for purposes of this motion. See N.Y. Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005)(upholding grant of summary judgment where "[t]he district court, applying Rule 7.1(a)(3) strictly, reasonably deemed [movant's] statement of facts to be admitted" because the non-movant submitting a responsive Rule 7.1(a)(3) statement that "offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations."); Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998)(per curiam)(accepting as true material facts contained in unopposed local rule statement of material facts); Meaney v. CHS Acquisition Corp., 103 F. Supp.2d 104, 108 (N.D.N.Y. 2000)(deeming movant's Rule 7.1(a)(3) Statement admitted where non-movant's response "set forth no citations -- specific or otherwise -- to the record")(emphasis in original); McKnight v. Dormitory Auth. of State of N.Y., 189 F.R.D. 225, 227 (N.D.N.Y. 1999)(McAvoy, J.)("deem[ing] the portions of Defendants' 7.1(a)(3) statement that are not specifically controverted by Plaintiff to be admitted"); Osier v. Broome County, 47 F. Supp.2d 311, 317 (N.D.N.Y. 1999) (McAvoy, J.)(deeming admitted all facts in defendants' Rule 7.1(a)(3) statement where "plaintiff submitted thirteen pages of purported facts without any indication where those facts can be located in the record").

III. FACTUAL BACKGROUND

Plaintiff contends that, after he filed disciplinary charges against certain City police officers, Defendants began a conspiracy to remove him from his position as Police Chief. This conspiracy allegedly involved harsh public criticism, false accusations that Fusco investigated a homicide scene while intoxicated, false statements that the City had overpaid Fusco, and false statements to the City Board of Public Safety that the Rensselaer District Attorney was investigating Fusco. Fusco also alleges that the Defendants were rude and unprofessional to him, hired a special counsel to find a way to terminate his employment, usurped his authority as Police Chief, and ignored his communications with City officials.

The relevant uncontested facts on this motion establish the following. Chief Fusco is, and was at all times pertinent to this action, the Police Chief in the City of Rensselaer. City Defs. 7.1 Stat. ¶ 1. The Police Chief's primary duty is to control and supervise the day to day operation of the Police Department. Id. ¶ 5. The Police Chief can only be disciplined ...


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