Searching over 5,500,000 cases.

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.

Mancuso v. United States Environmental Protection Agency

United States District Court, N.D. New York

September 22, 2014

PAUL MANCUSO, Plaintiff,


LAWRENCE E. KAHN, District Judge.


Pro se Plaintiff Paul Mancuso ("Plaintiff") brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., seeking to compel the production of documents allegedly withheld by Defendant United States Environmental Protection Agency ("Defendant" or "EPA"). Dkt. No. 7 ("Amended Complaint").[1] Presently before the Court is Defendant's Motion for summary judgment. Dkt. No. 39 ("Motion"). For the following reasons, Defendant's Motion is granted.


This action stems from Plaintiff's previous conviction for multiple counts of illegal removal of asbestos and related crimes. Dkt. Nos. 39-7 ("Statement of Material Facts") ¶ 1; 46-1 ("Statement of Material Facts Response") ¶ 1; see also United States v. Paul Mancuso, 5:08-CR-0611 (N.D.N.Y.). Following his criminal trial, Plaintiff filed several FOIA requests, which were denied by Defendant on the grounds that disclosure would interfere with the government's ability to respond to Plaintiff's appeal of his criminal conviction, and that other requested documents simply did not exist. SMF ¶ 2. Plaintiff then commenced this action seeking disclosure of the following documents: (1) handwriting exemplars Plaintiff provided to the government; (2) handwriting analysis reports; (3) air monitoring reports regarding two specific properties in Herkimer, NY and Poland, NY; and (4) inspection reports by EPA Agents Patrick Fracolla and Jeff Derx. Am. Compl. ¶¶ 12-14.

Subsequently, Plaintiff moved to compel production of the requested documents. See Dkt. Nos. 25; 28; 38. By Order dated December 20, 2013, U.S. Magistrate Judge Therèse Wiley Dancks denied in part and granted in part Plaintiff's requested relief. Dkt. No. 43 ("December Order"). Regarding the handwriting exemplars, Judge Dancks denied Plaintiff's request as moot because Defendant had since provided the exemplars to Plaintiff. Dec. Order at 2.[2] Judge Dancks also denied that part of Plaintiff's Motions seeking disclosure of handwriting analysis and inspection reports because the requested reports do not exist. Id . However, Judge Dancks found that the "part of the [M]otion seeking air monitoring reports regarding the Herkimer, NY property and the Poland, NY property is granted insofar as Defendant is to provide either the reports, if they exist, or affidavits from the Syracuse, NY EPA supervisor and the relevant Regional EPA supervisor, which provide information detailing the search for such reports." Id.[3]

Consistent with the December Order, on January 10, 2014, Defendant submitted affidavits from three EPA supervisors, all of whom declared that the air monitoring reports requested by Plaintiff do not exist. See Dkt. Nos. 44-1 ("Mosher Affidavit"); 44-2 ("Rotola Affidavit"); 44-3 ("Stewart Affidavit"). Specifically, Eric Mosher ("Mosher") serves as Branch Chief in the Response and Prevention Branch, Emergency and Remedial Response Division, Region 2, New York, New York, which "provides notification of, responds to, and activates technical personnel for emergency incidents involving hazardous substance releases [including asbestos]... in the states of New York and New Jersey." Mosher Aff. ¶ 1. Mosher states that "EPA region 2 did not perform any response activities at 133 W. Smith Street, Herkimer, New York, and consequently there were no records concerning the Herkimer site in [thei]r possession." Id . ¶ 4.

Joe Rotolla ("Rotolla") acts as the Branch Chief of the Removal Action Branch, Emergency and Remedial Response Division, Region 2, New York, New York, which "is responsible for removal and response actions at hazardous waste sites and federally declared disasters in Region 2 (New York and New Jersey)." Rotolla Aff. ¶ 1. Rotolla states that his office did not conduct any activities related to asbestos removal at the Herkimer, New York address, and thus does not have any air monitoring reports for that location. Id . ¶ 3. However, Rotolla states that "there were EPA response activities in connection with Military Road, Poland, New York... [, ] involv[ing] a number of bags of asbestos that were illegally disposed of at a privately owned landfill." Id . ¶ 4. Yet, "[t]he files related to this matter were searched and there are no records of air monitoring having been conducted at that location." Id.

Finally, Renee Stewart ("Stewart") is the Resident Agent in Charge of the Criminal Investigation Division ("CID") Syracuse, New York Resident Office. Stewart Aff. ¶ 1. Her office "conducts criminal investigations of environmental crimes in the Northern District of New York, and maintains the case files which may include original documents for cases investigated by the Syracuse, New York Resident Office." Id . Stewart confirmed that "there were no case file documents related to [Plaintiff's] FOIA request located in the EPA CID Syracuse, New York Resident Office, New York, except for a copy of the case file which had already been provided... in February 2013." Id . ¶ 4. Furthermore, Stewart conducted a second review of the case file six months after her initial search, and again confirmed that the requested air monitoring reports do not exist. Id . ¶ 5.


Rule 56 of the Federal Rules of Civil Procedure instructs a court to grant summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Although "[f]actual disputes that are irrelevant or unnecessary" will not preclude summary judgment, "summary judgment will not lie if... the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); see also Taggart v. Time, Inc. , 924 F.2d 43, 46 (2d Cir. 1991).

The 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 claims will demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). If the moving party shows that there is no genuine dispute as to any material fact, the burden shifts to the nonmoving party to demonstrate "the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id . This requires the nonmoving party to do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Corp. , 475 U.S. 574, 586 (1986). Mere conclusory allegations, speculation or conjecture will not avail a party opposing summary judgment. Kulak v. City of New York , 88 F.3d 63, 71 (2d Cir. 1996).

At the same time, a court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150 (2000); Nora Beverages, Inc. v. Perrier Grp. of Am., Inc. , 164 F.3d 736, 742 (2d Cir. 1998). A court's duty in reviewing a motion for summary judgment is "carefully limited" to finding genuine disputes of fact, "not to deciding them." Gallo v. Prudential Residential Servs. , 22 F.3d 1219, 1224 (2d Cir. 1994). "The role of the court is not to weigh the evidence and determine the truth of the matter, but rather to perform the threshold inquiry of whether there is the need for a ...

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.