The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Plaintiff Dontie S. Mitchell has filed a pro se complaint pursuant to 42 U.S.C. § 1983 alleging that Defendants violated his First Amendment right to freedom of association. Complaint, Apr. 14, 2006, ECF No. 1. Now before the Court is Plaintiff's Motion for Summary Judgment, Jan. 18, 2011, ECF No. 63, and his motion to reconsider, Feb. 16, 2012, ECF No. 78, the Court's previous Decision and Order, Oct. 5, 2011, ECF No. 75, adopting the Honorable Marian W. Payson's Report and Recommendation, Aug. 24, 2011, ECF No. 72, and denying Plaintiff's Motion to Amend, Jan. 3, 2011, ECF No. 61. In addition, Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Def.s' Motion to Dismiss, Jun. 15, 2010, ECF No. 49. For the reasons that follow, Defendants' motion to dismiss is granted in part, denied in part, and Plaintiff's motions are denied.
In his complaint, Plaintiff alleges that on March 28, 2006, Defendants violated his First, Fifth, and Fourteenth Amendment rights by confiscating literature he possessed from the National Afrikan Collectivists Association under former Prison Rule 105.12,*fn1 which prohibited inmates from possessing unauthorized organizational materials. On January 3, 2011, Plaintiff filed a motion to amend his complaint, ECF No. 61. He proposed to significantly broaden the scope of his claims from the original complaint by adding six additional Rule 105.12 violations and to remove one original defendant and add nine new defendants. The Court denied the motion, except as to grant the withdrawal of claims against defendant John Burge and substitute Department of Community and Correctional Services ("DOCCS") Commissioner Brian Fischer for defendant and former Commissioner Glenn Goord on all claims brought against Goord in his official capacity. The Court disregards the facts included in Plaintiff's summary judgment motion that relate to allegations he sought to add through his motion to amend.*fn2
On January 18, 2011, Plaintiff filed the pending summary judgment motion, ECF No. 63. The Court did not issue a scheduling order, and therefore, pursuant to the local rules then in effect, Defendants had until thirty days after service of the motion to file a response. W.D.N.Y. Loc. R. Civ. P. 56.1(e) (2003). Plaintiff's Certificate of Service, Jan. 18, 2011, ECF No. 63-4, shows service made on January 14, 2011. On December 9, 2011, ECF No. 77, J. Richard Benitez, Esq., filed a Declaration in response to Plaintiff's summary judgment motion. In his Declaration, Mr. Benitez asserts that Plaintiff's motion is a nullity since it "is premised on a proposed amended complaint against non-parties." Benitez Decl. ¶ 3. Although Defendants have filed Mr. Benitez's Declaration in response, they did not fully comply with W.D.N.Y. Loc. R. Civ. P. 56.1 (2003).
The Second Circuit has addressed the standard of law with regard to unopposed summary judgment motions:
Federal Rule of Civil Procedure 56 provides that if a non-moving party fails to oppose a summary judgment motion, then "summary judgment, if appropriate, shall be entered against" him. Fed. R. Civ. P. 56(e) (emphasis added). This Court has made clear, however, that where the non-moving party "chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial." Amaker, 274 F.3d at 681. If the evidence submitted in support of the summary judgment motion does not meet the movant's burden of production, then "summary judgment must be denied even if no opposing evidentiary matter is presented." Id. (internal quotation marks omitted); Giannullo, 322 F.3d at 141 (noting that the "non-movant is not required to rebut an insufficient showing"). Moreover, in determining whether the moving party has met this burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement. It must be satisfied that the citation to evidence in the record supports the assertion. Giannullo, 322 F.3d at 143 n. 5 (stating that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").
An unopposed summary judgment motion may also fail where the undisputed facts fail to "'show that the moving party is entitled to judgment as a matter of law.'" Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996) (per curiam) (quoting Fed. R. Civ. P. 56(c)).
Vermont Teddy Bear Company, Inc. v. 1-800 Beargram Company, 373 F.3d 241, 244 (2d Cir. 2004) (citing Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Giannullo v. City of N.Y., 322 F.3d 139 (2d Cir. 2003)).
The Court construes Plaintiff's motion, ECF No. 78, as one for reconsideration. As the Fifth Circuit has recognized, "[t]here is no motion for 'reconsideration' in the Federal Rules of Civil Procedure. See Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367, 371 n. 10 (5th Cir. 1998). However, a motion for reconsideration filed within ten days of the district court's judgment is construed as a Rule 59(e) motion that suspends the time for filing a notice of appeal. See id." Bass v. U.S. Dept. of Agriculture, 211 F.3d 959, 962 (5th Cir. 2000). Such a motion may be construed as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989). "The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
The Court finds no basis for reconsideration of its prior decision denying Plaintiff's motion to amend. Nothing raised in his pending motion to reargue, which the Court has construed as a motion ...