Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tota v. Abdella

July 22, 2009

ANTHONY SAMUEL TOTA, PLAINTIFF,
v.
JAMES H. ABDELLA,*FN1 DEFENDANT.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Plaintiff commenced this action pro se against Defendant on September 21, 2006. (Complaint, Docket No. 1.) Plaintiff's principle allegation is that Defendant denied him his due process rights under color of state law, which is actionable under 42 U.S.C. § 1983.

Presently before this Court are Plaintiff's Motion to Strike Statements of Defendant's Declaration (Docket No. 48) and Defendant's Motion for Summary Judgment. (Docket No. 39.) For the reasons discussed below, Plaintiff's motion will be denied and Defendant's motion will be granted.

II. BACKGROUND

A. Facts

Defendant is a former Acting Jamestown City Court Judge, and acted in that capacity from 1994 through 2004. (Declaration of H. James Abdella, Docket No. 40, ¶ 1.) On July 19, 2000, Plaintiff appeared before Defendant in connection with a charge of aggravated harassment. (Arraignment Transcript, Docket No. 34-2.) At the hearing, Defendant released Plaintiff for psychiatric evaluation under the supervision of the evaluating facility. (Id.) Approximately one year later, in or about July 2001, Plaintiff appeared before a different judge in connection with a separate criminal matter. Thereafter, Plaintiff posted signs in his front yard calling Defendant and the other judge "Criminal[s]." (Plaintiff's Declaration Opposing Summary Judgment, Docket No. 45-1, pp. 5--6.)

Plaintiff next encountered Defendant in 2002, when Defendant recused himself from a small claims matter in which Plaintiff was a party. (Defendant's Rule 56.1 Statement, Docket No. 42, ¶ 3.) Defendant recused himself because he believed that Plaintiff had been driving around town in a truck displaying signs questioning Defendant's integrity. (Defendant's Statement, ¶ 4.) But Defendant later learned that he was mistaken, and that it was a different individual, not Plaintiff, who was driving the truck. (Id.)

On September 25, 2003, Defendant presided over a competency hearing in connection with, inter alia, an arson charge against Plaintiff. (Defendant's Statement, ¶ 5.) Plaintiff objected to Defendant's hearing of the matter and moved for recusal based on Defendant's earlier recusal from the small claims matter in 2002. Plaintiff also moved for leave to seek his own counsel, though he had already been appointed counsel through the public defender. (September 25, 2003 Transcript, Docket No. 45-2, pp. 4, 11--12.) Defendant denied both motions and explained that his earlier recusal was based on mistaken identity. (Defendant's Statement, ¶ 5.) Defendant also ordered Plaintiff remanded to a psychiatric facility for evaluation and observation not to exceed ninety days. (September 25, 2003 Transcript, pp. 12--13.)

Plaintiff subsequently commenced this action, alleging that Defendant illegally presided over the September 25, 2003 competency hearing in violation of Plaintiff's due process rights. Defendant moved for summary judgment. Plaintiff moved to strike certain statements in Defendant's declaration (Docket No. 40) in support of his Motion for Summary Judgment. (Docket No. 48.)

III. DISCUSSION

A. Plaintiff's Motion to Strike

Plaintiff moves to strike paragraph four,*fn2 and lines one through eight of paragraph five,*fn3 from Defendant's declaration in support of his Motion for Summary Judgment. Plaintiff argues that Defendant's statements therein are inadmissible and thus should be stricken.

Rule 56(e) provides that "[a] supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed. R. Civ. P. 56(e). Only when the affidavit ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.