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Kevin Joseph Gabriel Brennan v. County of Broome In the State of New York

June 1, 2011


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



Plaintiff commenced this action pro se asserting that Defendant deprived him of his right to constitutional due process in connection with a child neglect or abuse investigation, and violated his rights under the Americans with Disabilities Act by failing to provide adequate handicap parking near the Broome County Family and County Court building in Binghamton, New York. See Am. Compl., dkt. # 15. Presently before the Court are: (1) Plaintiff's appeal of Magistrate Judge David E. Peebles's January 11, 2011 Order, dkt. # 38; (2) Defendant's motion for summary judgment, dkt. # 39; (3) Plaintiff's cross-motion for a finding of contempt of court against two non-party Broome County employees, dkt. # 41; and (4) Plaintiff's application for the appointment of counsel, dkt. # 48. The Court will address the motions seriatim.


On January 11, 2011, after reviewing the parties' papers and hearing oral argument, Magistrate Judge Peebles denied Plaintiff's discovery motions and Plaintiff's request for the designation of a private attorney general in this matter. See Jan. 11, 2011 Order, dkt. # 36. Plaintiff appeals this decision, essentially re-arguing the merits of his motions before Magistrate Judge Peebles. See dkt. # 38. Defendant has filed opposition, arguing that Plaintiff's positions are without merit. See dkt. # 40.

A district court judge reviewing a magistrate judge's non-dispositive pretrial order, as is in issue here, see Labarge v. Chase Manhattan Bank, N.A., 1997 WL 583122, at * 1 (N.D.N.Y. Sept. 3, 1997)(Pooler, D.J.)("Pretrial disputes concerning discovery generally are non-dispositive matters because they do not resolve parties' substantive claims for relief as set forth in the pleadings.")(citation omitted), may not modify or set aside any part of that order unless it is clearly erroneous or contrary to law. Id. (citing 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a); N.D.N.Y. LOCAL RULE 72.1(b)); Mathias v. Jacobs, 167 F. Supp.2d 606, 621-23 (S.D.N.Y. 2001). Findings are clearly erroneous when the reviewing court is firmly convinced the lower court decided an issue in error. Lanzo v. City of New York, 1999 WL 1007346, *2-3 (E.D.N.Y. Sept. 21, 1999). This standard imposes a heavy burden on the objecting party, and only permits reversal where the district court determines that the magistrate judge "abused his broad discretion over resolution of discovery matters." Labarge, 1997 WL 583122, at *1; see Mathias, 167 F. Supp.2d at 621-23; Lanzo, 1999 WL 1007346, *3.

The Court finds no error or abuse of discretion by Magistrate Judge Peebles in issuing the January 11, 2011 Order. Plaintiff's mere supposition that Broome County computers might hold information different from that which was produced in discovery despite sworn representations to the contrary, or that the room in which he was interviewed by Broome County officials was equipped with audio and video surveillance equipment despite sworn representations to the contrary, is insufficient to demonstrate error or abuse of discretion by Magistrate Judge Peebles. There was also no abuse of discretion in failing to require Defendant to produce (1) documents which are created or maintained by a different entity over which Defendant has no control, or (2) documents that Plaintiff already possesses. As to the case worker's handwritten notes, Defendant supplied an affidavit from the case worker asserting that the handwritten notes were shredded once the information from the notes was entered into the state-maintained Connections system,*fn1 as was the case worker's practice to do; that Plaintiff has been provided a complete copy of the computer generated notes; and that the last entry into the system (with the concomitant shredding of handwritten notes) occurred three months before the commencement of this action. It was not error or abuse of discretion for Magistrate Judge Peebles to deny Plaintiff's motion to compel this discovery "without prejudice to plaintiff's right to request from the trial court the issuance of a spoliation jury instruction" relative to these handwritten notes. See Jan. 11, 2011 Order.*fn2

The Court also finds no error or abuse of discretion in Magistrate Judge Peebles's denial of Plaintiff's motion for the appointment of a private attorney general in this matter. Plaintiff's newly minted argument that he should be afforded "private attorney general status" because he seeks to protect the rights of disabled government employees or "similarly situated" individuals who access the Broome County Family and County Court Building is without merit because Plaintiff has not instituted a representational-capacity suit.

For these reasons, Magistrate Judge Peebles January 11, 2011 Order is affirmed.


The Court next turns to Defendant's motion for summary judgment.

a. Standard Of Review

On a motion for summary judgment the Court must construe the properly disputed facts in the light most favorable to the non-moving party, see Scott v. Harris, 127 S. Ct. 1769, 1776 (2007), 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)(2). 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); Fed. R. Civ. P. 56(e).

The Local Rules of the Northern District provide a procedure for the efficient resolution of summary judgment motions. See N.D.N.Y.L.R. 7.1(a)(3). This places the onus on the parties to present the evidence that either supports or defeats the motion. A movant must set forth the undisputed facts that, it contends, entitles it to summary judgment in a Statement Of Material Facts. See N.D.N.Y.L.R. 7.1(a)(3). "Each fact listed shall set forth a specific citation to the record where the fact is established." Id.

Once a properly supported Local Rule 7.1(a)(3) Statement of Material Facts is submitted, the non-moving party must "file a response to the [movant's] Statement of Material Facts." Id. This requires a statement that "mirror[s] the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs." Id. "Each denial shall set forth a specific citation to the record where the factual issue arises." Id. Conclusory denials unsupported by specific citations to the record are insufficient. See N.Y. Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005).*fn3 The Court deems as admitted properly facts in a movant's Statement of Material Facts that the opposing party has not specifically or properly controverted. N.D.N.Y.L.R. 7.1(a)(3).

While the Court must construe a pro se litigant's pleadings and papers liberally and interpret them to raise the strongest arguments that they suggest, Govan, 289 F. Supp.2d at 295;*fn4 Veloz v. New York, 339 F. Supp.2d 505, 513 (S.D.N.Y. 2004), the application of this lenient standard does not relieve a pro se litigant of the requirement to follow the procedural formalities of Local Rule 7.1(a)(3). Govan, 289 F. Supp.2d at 295; see also Faretta v. California, 95 S. Ct. 2525, 2541 n. 46 (1975)("The right of self-representation is not a license . . . not to comply with relevant rules of procedural and substantive law."); Edwards v. INS, 59 F.3d 5, 8 (2d Cir. 1995)("While a pro se litigant's pleadings must be construed liberally, . . . pro se litigants generally are required to inform themselves regarding procedural rules and to comply with them."); McNeil v. United States, 113 S. Ct. 1980, 1984 (1993))("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.").

Simply stated, on a motion for summary judgment it is the duty of the parties, not the Court, to sift through the record and bring to the Court's attention the pertinent information that may create or defeat a triable issue of fact. See Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002); Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 291 (2d Cir. 2000). Summary judgment will be granted when it is apparent on the facts presented that no rational trier of fact could find in favor of the nonmoving party ...

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