Carzoglio v. Paul et al

Filing 83

ORDER denying without prejudice to renewal by formal motion 68 Motion for Summary Judgment. For the foregoing reasons, the Court DENIES Defendants' motion for summary judgment without prejudice with leave to re-file in accordance with Loc al Rule 56.2. The Court further SETS the following revised motion schedule: (1) Defendants shall serve (not file) their relevant moving papers in conformity with the mandates of Local Rule 56.2 and certify to the Court via ECF that they have comp lied with Local Rule 56.2 on or before November 7, 2022; (2) pro se Plaintiff shall serve (not file) his opposition papers on or before December 22, 2022; and (3) Defendants shall serve its reply papers on or before January 6, 2023. Defendants sha ll further file all motion papers (including pro se Plaintiff's) on the reply date: January 6, 2023. Defendants shall moreover provide the Court with two hard courtesy copies of all motion papers as they are served, as well as an electronic c ourtesy copy per this Court's local emergency civil rules. If the pro se Plaintiff fails to timely serve an opposition to Defendants' motion, having been properly placed on notice pursuant to Local Rule 56.2 regarding his burden on su mmary judgment, the Court will consider the motion unopposed and will proceed accordingly. The Clerk of Court is directed to terminate the motion at ECF No. 68, and to mail a copy of this order to pro se Plaintiff at his address listed on ECF and to show service on the docket.. (Signed by Judge Nelson Stephen Roman on 10/6/2022) (ate)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANGELO CARZOGLIO,

10/6/2022
Plaintiff,
No. 17 Civ. 3651 (NSR)
ORDER

-againstSGT. VINCENT PAUL; DEIDRE CARROLL; and
JOHN RHODES,
Defendants.
NELSON S. ROMÁN, United States District Judge:

Presently pending before the Court is Defendants Sergeant Vincent Paul, Officer Deidre
Carroll, and Sergeant John Rhodes (“Defendants”)’s motion for summary judgment under Federal
Rule of Civil Procedure 56. (ECF No. 68.) For the following reasons, the Court DENIES
Defendants’ motion without prejudice with leave to refile in accordance with the Court’s Local
Rules.
In the Second Circuit, a district court cannot grant a motion for summary judgment in a
case involving a pro se litigant unless (1) the court apprises the pro se litigant of the consequences
of failing to respond to the motion, see Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994); (2) an opposing
party has already provided the pro se litigant with the requisite notice, see Champion v. Artuz, 76
F.3d 483, 486 (2d Cir. 1996); or (3) it is clear that the pro se litigant understands “the nature and
consequences of summary judgment,” see M.B. # 11072–054 v. Reish, 119 F.3d 230, 232 (2d Cir.
1997). See Vital v. Interfaith Medical Center, 168 F.3d 615, 620–21 (2d Cir. 1999) (holding that
the failure of the district court to apprise a pro se litigant of the consequences of failing to respond
to a motion for summary judgment is a ground for reversal). To fulfill this duty, the United States

District Courts for the Eastern and Southern Districts of New York adopted Local Rule 56.2 on
September 23, 1999. Local Rule 56.2 provides in relevant part that:
[a]ny represented party moving for summary judgment against a party proceeding
pro se shall serve and file as a separate document, together with the papers in
support of the motion, the following “Notice To Pro Se Litigant Who Opposes a
Motion For Summary Judgment” with the full texts of Fed. R. Civ. P. 56 and Local
Civil Rule 56.1 attached. Where the pro se party is not the plaintiff, the movant
shall amend the form notice as necessary to reflect that fact.
“The notice referred to in the rule advises the pro se litigant of the possibility that the complaint
may be dismissed and informs the litigant that he or she must submit evidence countering the facts
asserted by the defendant and raising issues of fact for trial.” Covello v. Depository Tr. Co., 212
F. Supp. 2d 109, 115 (E.D.N.Y. 2002). In short, “the focus of both Vital and Local Rule 56.2 is
that the pro se litigant understands ‘the consequences of failing to respond to a motion for summary
judgment’ and receives notice that ‘he must file his own affidavits contradicting his opponent’s if
he wants to preserve factual issues for trial.’” Id. (quoting Vital, 168 F.3d at 621).
Notwithstanding, this requirement “should not be understood, however, to set down an
unyielding rule prohibiting district courts from acting upon motions for summary judgment sought
against pro se litigants in the absence of explanatory notice.” Sawyer v. Am. Fedn. of Govt.
Employees, AFL-CIO, 180 F.3d 31, 35 (2d Cir. 1999). “On the contrary, the issue in each case
remains whether from all of the circumstances, including the papers filed by the pro se litigant, it
is reasonably apparent that the litigant understood the nature of the adversary’s summary judgment
motion and the consequences of not properly opposing it.” Id.
Accordingly, the Second Circuit has recognized exceptions to this obligation when the
moving party has provided the pro se litigant with the requisite notice through other means, see
Artuz, 76 F.3d at 486, or when the pro se litigant responds to the summary judgment motion with
factual and legal submissions indicating that he understood the nature and consequences of

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summary judgment and “the need to set forth all available evidence demonstrating a genuine
dispute over material facts,” Reish, 119 F.3d at 232. See Sawyer, 180 F.3d at 34.
Here, the record shows that Defendants failed to serve on pro se Plaintiff Angelo Carzoglio
the required notice and statement under Local Rule 56.2. Defendants merely served and filed the
standard Notice of Motion for Summary Judgment. (ECF No. 68.) And after reviewing the record,
the Court concludes that it is unclear whether pro se Plaintiff understood the nature of a summary
judgment motion and his burden in responding to such a motion (i.e., that he must submit evidence
countering the facts asserted by Defendants and raising issues of fact for trial).
To be sure, the record does show that pro se Plaintiff did prepare and serve a response in
opposition to Defendant’s motion for summary judgment. (ECF No. 77.) However, “in the
absence of explicit notice, the mere existence of a response does not automatically give rise to the
inference that a pro se litigant understood the nature of a summary judgment motion.” Sawyer v.
Am. Fedn. of Govt. Employees, AFL-CIO, 180 F.3d 31, 35 (2d Cir. 1999). As the Second Circuit
previously noted,
the concerns that we have expressed regarding pro se litigants’ understanding of
summary judgment are not extinguished by the mere fact that a pro se litigant files
a response of some sort. Where the proper notice has not been given, the mere fact
that the pro se litigant has made some response to the motion for summary
judgment is not dispositive where neither his response nor other parts of the record
reveal that he understood the nature of the summary judgment process.
Vital, 168 F.3d at 621.
Further, the Court is also of the view that the record fails to clearly indicate whether pro se
Plaintiff understood his burden in responding to Defendants’ motion for summary judgment.
Notably, pro se Plaintiff’s opposition papers to Defendants’ motion for summary judgment clearly
lack the proper required response to Defendants’ statement of undisputed facts under Local Rule
56.1 and are devoid of any sworn affidavits.

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CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’ motion for summary judgment
without prejudice with leave to re-file in accordance with Local Rule 56.2.
The Court further SETS the following revised motion schedule: (1) Defendants shall serve
(not file) their relevant moving papers in conformity with the mandates of Local Rule 56.2 and
certify to the Court via ECF that they have complied with Local Rule 56.2 on or before November
7, 2022; (2) pro se Plaintiff shall serve (not file) his opposition papers on or before December 22,
2022; and (3) Defendants shall serve its reply papers on or before January 6, 2023. Defendants
shall further file all motion papers (including pro se Plaintiff’s) on the reply date: January 6, 2023.
Defendants shall moreover provide the Court with two hard courtesy copies of all motion papers
as they are served, as well as an electronic courtesy copy per this Court’s local emergency civil
rules.
If the pro se Plaintiff fails to timely serve an opposition to Defendants’ motion, having
been properly placed on notice pursuant to Local Rule 56.2 regarding his burden on summary
judgment, the Court will consider the motion unopposed and will proceed accordingly.
The Clerk of Court is directed to terminate the motion at ECF No. 68, and to mail a copy
of this order to pro se Plaintiff at his address listed on ECF and to show service on the docket.

Dated:

October 6, 2022
White Plains, New York

SO ORDERED:

________________________________
NELSON S. ROMÁN
United States District Judge

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