The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff, William Lombardi, proceeding pro se, commenced this action asserting claims pursuant to 42 U.S.C.§§ 1983, 1985 and 1986 and alleging that the Defendants violated his equal protection and due process rights by failing and refusing to properly enforce a support obligation order that was entered against him. Presently before the Court is the motion for summary judgment by Defendants Suffolk County, Suffolk County Support Collection, Suffolk County Department of Social Services, Miss Grant, in her individual and official capacities and Jane and John Does, in their individual and official capacities (collectively "Defendants") and Plaintiff's motion for summary judgment. For the reasons set forth below, Defendants' motion is granted on all of Plaintiff's claims and Plaintiff's motion is denied in its entirety.
The following facts are taken from the parties' submission and are undisputed, unless noted otherwise.
Plaintiff was divorced in Suffolk County, New York in 1991 and was directed to pay child support through the Suffolk County Child Support Enforcement Bureau ("CSEB"). Plaintiff's disability retirement pay from the Marine Corps was also garnished in the amount of $154.00 per month by an income execution issued by the attorney representing Plaintiff's former spouse.
In February 1994 Plaintiff became disabled. The next month, Plaintiff's former spouse petitioned for enforcement of child support and Plaintiff petitioned for a downward modification of his support obligation. In December 1994, the Suffolk County Family Court reduced Plaintiff's support obligation to $25 per week retroactive to the date of filing, March 1994. The parties dispute whether Plaintiff's arrears were properly credited in accordance with the Family Court Order. Defendants contend they properly credited the arrears while Plaintiff contends that he was never given credit for the $154 per month that he paid for the period March 1994 to December 1994.
In 1995, Plaintiff's former spouse applied to the Veteran's Administration ("VA") for an apportionment of Plaintiff's veteran benefits. This action was taken independently from the CSEB. The VA issued a determination awarding the former spouse $100.00 per month for each of two unemancipated children.
After the VA's award, Plaintiff began demanding credit for the child support contributions being made pursuant to the VA award and the $154.00 per month garnishment. The CSEB responded that it could not unilaterally adjust his payments. Between 1996 and June 2001, the CSEB and the County repeatedly advised the Plaintiff that he needed to file a petition in family court to modify his support obligation. Indeed, Plaintiff was given the phone number of the Intake Unit and offered help over the phone with completing the necessary petition. Plaintiff never filed a petition. Accordingly, the CSEB continued to garnish Plaintiff's social security disability for the $25.00 support obligation as ordered in December 1994. It appears, although it is not clear, that the garnishment continued until July 2004 for arrearages. It also appears that the youngest of Plaintiff's children became emancipated in May 2001.
Plaintiff commenced this action on March 24, 2004. According to the amended complaint "jurisdiction of this court is invoked pursuant to 42 U.S.C. 1983, 42 U.S.C. 1985, 42 U.S.C. 1986 and 28 U.S.C. 1343." Plaintiff alleges that he was deprived of due process, equal protection and his property because the Defendants failed to properly credit his support obligation with the VA's award. According to Plaintiff, Defendants knew that "his support obligation was $25/month; the former spouse was indeed receiving $225 a month; combined Veterans Chid support $200/month payment and $25 CSEB Social Security Disability garnishment by CSEB," yet the defendants "keep garnishing the $25/month, intercept tax refunds and levy the plaintiff[']s bank accounts." The relief he seeks includes recalculation of his support account with a refund of the excess amounts paid, an injunction "stopping CSEB from these practices" and monetary damages and "fines."
I. Standard for Summary Judgment
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted).
The district court considering a summary judgment motion must also be "mindful of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions. Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. Id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer "persuasive evidence that [her] claim is not 'implausible.' " Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587.
When a pro se litigant is faced with a motion for summary judgment, the court must "read the pleadings of a pro se plaintiff liberally and interpret them 'to raise the strongest arguments that they suggest.'" McPherson v. Camb., 174 F.3d 276, 280 (2d Cir. 1999) (citing Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, the existence of a mere scintilla of evidence in support of non-movant's position is insufficient to defeat the motion; there must be ...