The opinion of the court was delivered by: Neal P. McCURN, Senior U.S. District Court Judge
MEMORANDUM - DECISION AND ORDER
This pro se civil rights action was commenced by Plaintiff Daniel Cotton ("Cotton") against defendant F. Jeff Gildersleeve ("Gildersleeve"), seeking damages for an alleged violation of Cotton's constitutional rights pursuant to the Bivens Doctrine.*fn1 The court has federal question jurisdiction over this matter pursuant to 42 U.S.C. § 1331.
Currently before the court is Gildersleeve's unopposed motion to dismiss Cotton's claim for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. Rule 12(b)(6) (Doc. No. 14), or in the alternative, the government argues that summary judgment must be granted because there is no genuine issue of material fact to be litigated, pursuant to Fed.R.Civ.P. Rule 56(c). For the reasons set forth below, the court will grant Gildersleeve's unopposed motion to dismiss.
The following facts are taken from the amended complaint (Doc. No. 7) and are presumed true for the purpose of this motion. On March 5, 2003, Gildersleeve led a team of D.E.A.*fn2 agents and local law enforcement officers to Cotton's place of residence, a church rectory in Gloversville, New York, to search the premises. Persons in the residence at the time of the search were Cotton, his girlfriend, their son, and the church rector. Both the rector and Cotton were forced to their knees at gunpoint. Cotton alleges that the rector repeatedly asked for a copy of the search warrant and was refused. Cotton was advised that he was under arrest for manufacturing "meth."*fn3 When the search ended, the rector again requested a copy of the search warrant. The warrant he was given failed to list what was being searched for and did not contain a "bill of particulars," which Cotton's attorney later told him was required for a valid search warrant. The search warrant stated, "see attachment," but no attachment was affixed to the document.
Cotton's girlfriend was advised that she was not under arrest, but she was asked by the police to go to the Gloversville police station where she was arrested for "endangerment of her child." The charge was later dropped.
After searching the Gloversville residence, Gildersleeve and other law enforcement officers proceeded to a location in the Town of Johnstown, New York, to a house Cotton was refurbishing pursuant to a land lease to purchase. The officers broke down the back door and conducted a search of those premises. Cotton alleges that the search warrant left at that residence also failed to list what was being searched for, and was also without the designated attachment, and/or the required bill of particulars.
Plaintiff asserts that he relied on his attorney's advice that the search warrant was valid, and entered into a plea agreement which included false information, and required him to plead to activity that was in fact not illegal.*fn4
Cotton argues that he was never allowed to withdraw his guilty plea. Researching the issue while incarcerated, Cotton now believes that the search conducted by Gildersleeve at both residences was illegal.
Cotton asserts that as a direct result of the illegal search, he was not able to meet his obligations regarding his residence, and lost that residence, as well as the time and money spent in refurbishing it. Cotton also claims injury to his reputation, his inability to find work, several hospitalizations caused by mental and emotional anguish, severe family injuries, as well as incarceration and probation. Cotton asserts that said injuries were all a result of the illegal search.
As a threshold matter, the local rules for the United States District Court, Northern District of New York, provide that "[w]here a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown." N.D.N.Y. Local Rule 7.1(b)(3). Because Gildersleeve has not filed a motion requesting that the court dismiss for lack of prosecution, the court now sua sponte decides this matter.
Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.") allows a defense of "failure to state a claim upon which relief can be granted" to a claim of relief in any proceeding. Similarly, Rule 56 (e)(2) states that "[w]hen a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party." Fed.R.Civ.P. Rule 56 (e)(2) (West 2007). However, "[i]f the evidence submitted in support of the summary judgment motion does not meet the ...