Deleon v. Ayers et al

Filing 59

DECISION AND ORDER The Order at Docket # 58, entered February 24, 2022, is vacated. Deleon's motion seeking to amend his opposition to defendants' summary judgment motion and additional time to do so (Dkt. ## 55 56 ) is granted, subjec t to the specifications detailed in this Order. Deleon shall submit the required affidavits in opposition to defendants' motion for summary judgment no later than twenty (20) days following receipt of this Order. Defendants shall submit any response no later than ten (10) days following the filing of Deleon's amended opposition papers. Signed by Hon. David G. Larimer on 2/25/2022. A copy of this Decision and Order was sent by First Class Mail to plaintiff Jason Deleon on 2/25/2022 to his address of record. (KAH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
JASON DELEON,
DECISION AND ORDER
Plaintiff,
16-CV-6848L
v.
JOEL R. AYERS, et al.,
Defendants.
_______________________________________________

INTRODUCTION
Pro se plaintiff Jason Deleon (“Deleon”), an inmate in the custody of the New York State
Department of Corrections and Community Supervision (“DOCCS”), brings this civil rights action
pursuant to 42 U.S.C. § 1983 against multiple defendants alleging violations of his constitutional
rights while he was housed at Southport Correctional Facility (“Southport”). (Dkt. # 27 (Deleon’s
Second Amended Complaint, now the operative complaint in this case)). Specifically, Deleon
alleges three causes of action claiming that he was subjected to excessive force in January and
April 2014, and that he was denied due process at a disciplinary hearing in April 2014. (See id.).
In accordance with the Amended Scheduling Order (see Dkt. # 42), defendants filed a
motion for summary judgment seeking dismissal of each of Deleon’s claims on October 29, 2021.
(Dkt. # 47). The Court then set a briefing schedule, which contained a pro se notice explaining
the requirements for opposing summary judgment. (Dkt. # 48). After requesting and being granted
an extension of time to respond, Deleon opposed defendants’ motion on January 3, 2022 (Dkt.

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## 49, 50, 51, 53), and defendants filed a reply in further support of their motion on January 18,
2022 (Dkt. # 54). Defendants’ motion remains pending.
After briefing was complete, Deleon filed a motion seeking to amend his opposition to
defendants’ summary judgment motion and additional time to file an amended opposition. (Dkt.
## 55, 56). Deleon’s motion is premised on his view that he needs additional discovery to
prosecute his claims, specifically, Southport’s “Facility Operating Manual,” which DOCCS
possesses and apparently will not disclose absent a Court order. (Dkt. ## 55 at 1-2; 56 at 5). This
document, in Deleon’s view, is “essential to proving and supporting the claims in [his] case.” (Dkt.
# 56 at 5).
Defendants opposed Deleon’s motion. (Dkt. # 57). They contend that it amounts to an
improper sur-reply, contrary to this District’s Local Rule 7(a)(6) of Civil Procedure, and that
Deleon has not put forth sufficient reasons justifying the need for further briefing in opposition to
the summary judgment motion. (Id. at ¶¶ 13-21). See also W.D.N.Y. LOCAL R. CIV. P. 7(a)(6)
(“Absent permission of the Judge hearing the motion, sur-reply papers are not permitted”). In the
alternative, defendants request an opportunity to respond to Deleon’s amended opposition. (Dkt.
# 57 at ¶ 23).
This Court’s Order at Docket # 58, entered February 24, 2022, is vacated. For the following
reasons, the Court grants Deleon’s request to amend his opposition to defendants’ summary
judgment motion, subject to the following limitations.

DISCUSSION
Given Deleon’s pro se status, the Court must construe his motion liberally and to raise the
strongest possible arguments it suggests. See Bertin v. United States, 478 F.3d 489, 491 (2d Cir.

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2007). With this in mind, the Court believes that Deleon’s underlying contention – that certain
additional discovery is “essential to proving and supporting [his] claims” (Dkt. # 56 at 5) – is best
understood as an attempt to oppose defendants’ summary judgment motion based on Rule 56(d)
of the Federal Rules of Civil Procedure.
Rule 56(d) “authorizes the court to deny or hold in abeyance a summary judgment motion
on the ground that the opposing party requires additional discovery relevant to the issues raised by
the motion.” Bank of Am., Nat’l Ass’n v. Kamico, Inc., 2012 WL 1449185, *4 (S.D.N.Y. 2012).
Specifically, the rule provides: “If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.” FED. R. CIV. P. 56(d).
Accordingly, “[t]o request discovery under Rule 56[d], a party must file an affidavit
describing: (1) what facts are sought and how they are to be obtained; (2) how these facts are
reasonably expected to raise a genuine issue of material fact; (3) what efforts the affiant has made
to obtain them; and (4) why the affiant’s efforts were unsuccessful.” Gualandi v. Adams, 385 F.3d
236, 244 (2d Cir. 2004).
As submitted, Deleon’s motion does not comply with the requirements of Rule 56(d)
because he has not submitted any type of affidavit detailing the above factors. His papers do state
that Southport’s “Facility Operating Manual” is a document that “establishes the policies and
procedures setting forth the manner in which employees must run and operate the facility,” which
is “essential to proving and supporting [his] claims.” (Dkt. # 56 at 5). He also explains that he
requested this document from the “records coordinator” at Southport on November 18, 2021, but
received no response. (Id. at 3, 5).

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Critically, however, Deleon does not explain (in an affidavit or otherwise) why this
operating manual is so “essential” to his case or which of his claims the document is supposed to
support. Nor does he clarify what facts the operating manual will provide, how these facts will
help to oppose summary judgment, what efforts he made prior to November 2021 to obtain either
the document itself or the relevant facts contained therein, and why those efforts were
unsuccessful. After all, fact discovery in this matter closed on August 31, 2021 – nearly three
months prior to Deleon’s letter to Southport’s “records coordinator” requesting the “Facility
Operating Manual.” (Dkt. # 42 at ¶ 1).
Rather than deny Deleon’s motion to amend his opposition, the Court believes the better
course of action, out of an abundance of caution and deference to Deleon’s pro se status, is to grant
the motion and permit Deleon the opportunity to supplement his opposition papers with a proper
Rule 56(d) affidavit.1
Accordingly, should Deleon wish to defend defendants’ summary judgment motion on the
basis that he requires additional discovery in the form of Southport’s “Facility Operating Manual,”
he must submit an affidavit pursuant to Rule 56(d) detailing “(1) what facts are sought and how
they are to be obtained; (2) how these facts are reasonably expected to raise a genuine issue of
material fact; (3) what efforts the affiant has made to obtain them; and (4) why the affiant’s efforts
were unsuccessful.” Gualandi, 385 F.3d at 244. Deleon shall submit the required affidavit no
later than twenty (20) days following receipt of this Order.
The Court also notes that Deleon did not submit any affidavit in his original opposition
papers (let alone one pursuant to Rule 56(d)), despite being put on notice by defendants and this

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The Court expresses no view at this time on whether Deleon will ultimately be entitled to disclosure of Southport’s
“Facility Operating Manual,” or whether his opposition to defendants’ motion for summary judgment will be
successful.

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Court of such a requirement. (See Dkt. # 47-2; Dkt. # 48 (“The claims plaintiff asserts in his
compliant may be dismissed without a trial if he does not respond to this motion by filing his own
sworn affidavits or other papers as required by Rule 56(e). An affidavit is a sworn statement of
fact based on personal knowledge that would be admissible in evidence at trial.”) (emphasis
omitted)). Nor did he file an opposition statement of facts responding to defendants’ Local Rule
56 Statement of Facts that is required by Rule 56(a)(2) of the Local Rules of Civil Procedure. This
is particularly troubling given the parties’ arguments regarding exhaustion of administrative
remedies; Deleon’s assertions on this issue are not supported by any affidavit or citations to record
evidence. (See Dkt. # 53).
Accordingly, because the Court is allowing Deleon the opportunity to amend his opposition
papers as discussed above, and again out of an abundance of caution, the Court will give Deleon
one final opportunity to support his assertions on the issue of exhaustion of administrative
remedies by way of affidavit. At the very least, Deleon’s affidavit in this respect should detail
where, when, and to whom specifically he allegedly attempted to exhaust administrative remedies
regarding his grievances for multiple instances of excessive force, and what evidence he has
gathered throughout discovery to support any such assertions. Deleon shall submit any such
affidavit no later than twenty (20) days following receipt of this Order.

CONCLUSION
The Order at Docket # 58, entered February 24, 2022, is vacated. For the above reasons,
Deleon’s motion seeking to amend his opposition to defendants’ summary judgment motion and
additional time to do so (Dkt. ## 55, 56) is granted, subject to the specifications detailed in this
Order. Deleon shall submit the required affidavits in opposition to defendants’ motion for

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summary judgment no later than twenty (20) days following receipt of this Order.
Defendants shall submit any response no later than ten (10) days following the filing of
Deleon’s amended opposition papers.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
February 25, 2022.

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