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Allaway v. McGinnis

February 8, 2007

ROBERT ALLAWAY, PLAINTIFF,
v.
SUPERINTENDENT MICHAEL MCGINNIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

Plaintiff, Robert Allaway, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), has sued a number of DOCS employees, alleging that his constitutional rights were violated in certain respects in 1999 while plaintiff was confined at Southport Correctional Facility.

Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has not responded to the motion. For the reasons that follow, the motion is granted. DISCUSSION

I. Plaintiff's Failure to Respond to the Summary Judgment Motion

Rule 56(e) of the Federal Rules of Civil Procedure provides that: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

The Court of Appeals for the Second Circuit has held that when a party moves for summary judgment against a pro se litigant, either the movant or the district court must provide the pro se litigant with notice of the consequences of failing to respond to the motion. Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999); see also Irby v. New York City Transit Auth., 262 F.3d 412, 413 (2d Cir. 2001).

In the instant case, defendants' notice of motion (Dkt. #52) gave plaintiff notice of the requirements of Rule 56 and the consequences of failing to respond properly to a motion for summary judgment. The notice of motion states, in part, that "you must respond, by affidavits or as otherwise provided in the rule, setting forth further specific facts showing that there are genuine issues of material facts for trial. Any factual assertions in [defendants' affidavits] will be accepted by the Court as being true unless you submit affidavits or other documentary evidence contradicting our assertions. If you do not respond to the defendants' motion as described above, summary judgment, if appropriate, may be entered against you. If summary judgment is entered against you, your case ... will be dismissed."

This Court's scheduling order (Dkt. #72), which gave plaintiff until August 10, 2006 to respond to defendants' motion, also apprised plaintiff of the necessity of responding to defendants' motion, stating in part, that: "THE CLAIMS PLAINTIFF ASSERTS IN HIS COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF HE DOES NOT RESPOND TO THIS MOTION by filing his own sworn affidavits or other papers as required by Rule 56(e)." It further states: "Rule 56 provides that plaintiff may NOT oppose summary judgment simply by relying upon the allegations in the complaint. Rather, plaintiff must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising issues of fact for trial"; "Any issue of fact that plaintiff wishes to raise in opposition to the motion for summary judgment must be supported by affidavits or by other documentary evidence contradicting the facts asserted by defendants"; and "If plaintiff does not respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the facts asserted by defendant, the Court may accept defendant's factual assertions as true. Judgment may then be entered in defendants' favor without a trial."

Still more notice was given by this Court's "Irby" notice issued on July 14, 2006 (Dkt. #73). The notice states in part that "[f]ailure to respond to a motion for summary judgment may result in the grant of judgment in favor of the party seeking summary judgment and the dismissal of all or part of the case. ... Therefore, ... you MUST submit opposing papers in the form of one or more affidavits ...," as well as a "concise statement of the material facts as to which you contend there exists a genuine issue which must be tried." The notice warned plaintiff that "all of the material facts which have been set forth in the statement served on you by the moving party ... will be deemed to have been admitted by you unless you controvert the facts in your statement of material facts presenting a genuine issue regarding a trial."

Plaintiff was apparently aware of his obligation to respond to defendants' motion, since in an undated letter received by the Court on August 23, 2006, requesting an additional thirty days to respond (Dkt. #74). The Court granted that request, and gave plaintiff until September 11 to file his response (Dkt. #75).

In a letter dated September 6, 2006, plaintiff asked for a second thirty-day extension because of his limited access to a law library. The Court "So Ordered" the letter, giving plaintiff until October 16 to file a response to defendants' motion (Dkt. #76).

In a letter filed with the Court on October 4, 2006, plaintiff asked for a third extension, on the ground that "the prison ha[d] been locked down since [his] previous request" (Dkt. #78). The Court granted that request, extending plaintiff's deadline to November 1.

In a letter filed on October 25, plaintiff made his fourth request for an extension of time, stating that he had been confined to his cell for suspicion of gang-related activity (Dkt. #80). I granted that request on October 25, giving plaintiff until December 18 to file a response, and adding that "absent extraordinary circumstances, this is the last extension to respond to defendants' summary judgment motion" (Dkt. #81). Plaintiff has not contacted the Court or submitted any papers since.*fn1

The mere fact that plaintiff has failed to respond to defendants' motion does not mean that summary judgment should be "granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); see also Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). Rather, summary judgment may be granted as long as plaintiff has received notice that failure to file an opposition may result in dismissal of his case and the Court is satisfied that the undisputed facts "show that the moving party is entitled to a judgment as a matter of ...


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