Opinion
99 Civ. 11994 (SAS)
March 19, 2001
For Plaintiff: Thomas G. Sheehan, Esq., Cheda Sheehan, Jackson Heights, N.Y. 11372
For Defendant: Steven C. Stern, Esq., Assistant Corporation Counsel, New York, N.Y. 10007
OPINION AND ORDER
Angel Reyes brings this action against the City of New York (the "City" or "defendant") and unidentified New York City police officers pursuant to 42 U.S.C. § 1983, the New York State Constitution, and New York common law. Plaintiff alleges that his First, Fourth, Fifth, and Fourteenth Amendment rights were violated in connection with two incidents that occurred on September 11, and September 12, 1998.
The City now moves for summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure. The City alternatively moves to dismiss the Complaint pursuant to Rule 41(b) for failure to prosecute. For the following reasons, defendant's motion for summary judgment is granted.
I. FACTUAL BACKGROUND
The material facts contained in defendant's Local Rule 56.1 statement are deemed admitted as a matter of law because of plaintiff's failure to respond. See Local Civil Rule 56.1(c), Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York ("All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party."); See also Dusanenko v. Maloney, 726 F.2d 82, 84 (2d Cir. 1984).
A. Complaint
Plaintiff filed his Complaint on December 10, 1999 and the City filed its Answer on March 9, 2000. See Combined 56.1 Statement and Declaration of Steven C. Stern, defendant's attorney ("Stern Decl.") at 2. Plaintiff alleges that on September 11, 1998, he was frisked by unidentified police officers after the officers pulled over the livery cab in which he was a passenger. See id.
Plaintiff further alleges that on September 12, 1998, at the 24th Precinct, unidentified police officers, to whom he was reporting the September 11th incident, refused to take his complaint. See id. Finally, plaintiff alleges that these unidentified police officers interfered with his application for a job as a Corrections Officer with the New York City Department of Corrections, for which he was rejected. See id.
B. Discovery
On January 24, 2000, the City sent its first set of interrogatories and request for documents to plaintiff's counsel. See id. On February 10, 2000, a scheduling conference was held where a discovery cut-off was set for June 30, 2000, and a pretrial conference was scheduled for July 7, 2000. See id. At the July 7, 2000 conference, the discovery cut-off was extended to October 7, 2000. See id. at 3.
On September 25, 2000, defendant produced documents identifying officers who might have been on duty on September 11, 1998. See id. In addition, on September 25, 2000, defendant noticed plaintiff's deposition for October 3, 2000 and requested a response to its outstanding interrogatories and document request. See id. On October 2, 2000, defendant requested that plaintiff's counsel confirm that plaintiff would attend the October 3, 2000 deposition and requested that plaintiff fax his responses to the interrogatories and document request beforehand.See id. Plaintiff's counsel did not reply. See id. Later that day, defendant's counsel informed plaintiff's counsel that plaintiff's deposition would not proceed the following day. See id. On October 3, 2000, defendant's counsel requested an alternate date for the deposition. See id. Plaintiff's counsel did not respond. See id. On October 4, 2000, defendant provided additional documents to plaintiff regarding the identity of officers on duty on September 11, 1998 and requested that plaintiff respond to defendant's interrogatories and document requests. See id. at 3-4.
This letter, dated October 3, 2000, was not faxed until October 4, 2000. See Stern Decl. at 3.
On October 5, 2000, defendant moved to compel plaintiff to respond to its interrogatories and document request and appear for a deposition.See id. at 4. On October 10, 2000, a conference was held and plaintiff was directed to do so immediately. See id. In addition, the discovery cut-off was extended to November 10, 2000. Immediately after the conference, counsel agreed to an October 19, 2000 deposition. See id.
On October 15, 2000, and again on October 18, 2000, defendant's counsel wrote plaintiff's counsel confirming the date and time of the deposition and requested a response to defendant's interrogatories and document request. See id. On October 18, 2000, plaintiff finally faxed his responses to defendant. See id. On October 19, plaintiff's counsel arrived approximately one hour late to the deposition without notifying his adversary that he would be late. See id. On October 20, 2000, defendant's counsel requested that additional documents plaintiff described at his deposition be produced. See id. at 5. Defendant never received any additional documents. See id.
The hard copy of plaintiff's responses to defendant's interrogatories and document requests were not received until after the October 19, 2000 deposition.
At the deposition, plaintiff was shown photographs of lieutenants from the 24th Precinct who may have been involved in the September 12, 1998 incident. See 10/19/00 Deposition of Angel Reyes, Ex. J to Stern Decl. at 158-59. Plaintiff identified one individual. See id.
In this October 20, 2000 letter, defendant's counsel revealed the name of the lieutenant that plaintiff had identified. See Stern Decl. at 5. Plaintiff never amended his Complaint to name the identified lieutenant as a defendant. See id.
On November 9, 2000, defendant's counsel requested an extension of the discovery deadline from November 10, 2000 to December 15, 2000, to permit both parties to comply with outstanding discovery obligations. See id. The Court granted this extension, but indicated in the memorandum endorsement that no further extensions would be granted. See id. A settlement conference was scheduled before Magistrate Judge James C. Francis for November 28, 2000. See id. Plaintiff's counsel did not appear. See id. Judge Francis adjourned the conference until December 18, 2000. See id.
This was the fourth such extension.
The December 18, 2000 settlement conference was held before Judge Francis and plaintiff's counsel arrived 45 minutes late. See Stern Decl. at 6.
On December 1, 2000, defendant's counsel provided additional documents and requested that plaintiff schedule a date the following week to view photo arrays of police officers that may have been patrolling the vicinity in which plaintiff claims he was stopped on September 11, 1998. See id. at 5-6. Plaintiff never responded. See id. On December 7, 2000, defendant's counsel reiterated this request. See id. at 6.
On December 13, 2000, plaintiff's counsel contacted defendant's counsel to schedule a viewing of the photo arrays. See id. Both parties agreed that a viewing would occur on December 14, 2000, at 4:00 p.m., and defendant's counsel hired a stenographer for that date. See id. On December 14, 2000, at 3:51 p.m., plaintiff's counsel's secretary contacted defendant's counsel to inform him that he and plaintiff would not be attending the 4:00 p.m. viewing. See id. The secretary also indicated that plaintiff's counsel would call defendant's counsel later that evening. See id. plaintiff's counsel never called. See id.
On December 15, 2000, the final discovery cut-off, plaintiff's counsel contacted defendant's counsel and requested that plaintiff view the photo array at the December 18, 2000 settlement conference. See id. Defendant's counsel responded that he would provide no further discovery without a court order. See id.
Plaintiff's counsel also indicated that he intended to amend the Complaint. See Stern Decl. at 6.
C. Motion for Summary Judgment
On December 20, 2000, defendant requested leave to file a motion to dismiss and/or for summary judgment. See id. at 7. Plaintiff did not respond. See id. On December 22, 2000, a conference was held in which this Court refused to extend the discovery deadline and granted defendant leave to file the instant motions. See 12/22/00 Conference Transcript ("Conf. Tr."), Ex. S to Stern Decl., at 11-12. The Court set the following briefing schedule: January 28, 2001 for defendant's moving papers; February 4, 2001 for plaintiff's response; and February 18, 2001 for defendant's reply. See id. It was made clear that no extensions to this briefing schedule would be granted. See id. On January 29, 2001, defendant filed its moving papers. See Stern Decl. at 1. Plaintiff did not file a response to defendant's motion papers.
Because January 28, 2001 was a Sunday, defendants' moving papers were filed on Monday January 29, 2001.
II. LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is `material' for these purposes if it `might affect the outcome of the suit under the governing law[,]' [while] [a]n issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In assessing the record to determine whether genuine issues of material fact are in dispute, a court must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d Cir. 2001). "Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must `set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 256). However, the non-moving party may not "rest upon . . . mere allegations or denials." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999), cert. denied, 120 S.Ct. 2688 (2000); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) ("If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted.") (internal quotation marks, citations, and alterations omitted).
III. DISCUSSION
A. Claims Against Unidentified Police Officers
The plaintiff has only named unidentified New York City police officers and the City as defendants in this case — he has failed to add any individual police officers as defendants. Plaintiff has had multiple chances to amend his Complaint, but has failed to do so, and is no longer permitted to amend his complaint. See Conf. Tr., Ex. S to Stern Decl. at 4, 11.. Therefore, the only defendant remaining in this case is the City.
At the December 22, 2000 conference, plaintiff's counsel was told that this Court was "seriously disturbed" by his "series of irresponsible, rude and unacceptable conduct." See Conf. Tr., Ex. S to Stern Decl., at 2, 4. Counsel was informed that the Court would not further extend any deadlines. See id. at 4.
At the December 22, 2000 conference, the Court stated that "there are no individuals, [the Complaint] is only against the City." Conf. Tr., Ex. S to Stern Decl., at 12.
B. Claims Against the City of New York
In order to maintain an action against a municipality under 42 U.S.C. § 1983, plaintiff must show that a specific "official policy is responsible for a deprivation of rights protected by the Constitution." Monell v. Department of Soc. Servs., 436 U.S. 658, 690 (1978). plaintiff must demonstrate: (1) the existence of a municipal policy or custom; and (2) the existence of a causal connection between said policy or custom and the deprivation of plaintiff's constitutional rights. See Taylor v. Evans, 72 F. Supp.2d 298, 316 (S.D.N.Y. 1999); see also Sarus v. Rotundo, 831 F.2d 397, 400 (2d Cir. 1987) (citing Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)).
The plaintiff has offered no evidence to prove the existence of a municipal custom or policy, nor the existence of a causal connection between such a policy or custom and the deprivation of plaintiff's constitutional rights. In his Complaint, plaintiff alleges that the City violated his constitutional rights by failing to adequately discipline, train, supervise, or otherwise direct police officers concerning the rights of citizens and by failing to sanction the police officers who were involved in the alleged incidents. See Complaint, Ex. A to Stern Decl., at 10-11. Plaintiff has offered no evidence to prove these allegations. As noted earlier, plaintiff never responded to defendant's Local Rule 56.1 Statement. Rather, plaintiff relies solely on his Complaint in opposing the instant motion.
A plaintiff "opposing summary judgment may not rely on his complaint to defeat the motion . . . ." Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996); see also Fed.R.Civ.P. 56(e) ("an adverse party may not rest upon the mere allegations or denials of the adverse party s pleading"). The Second Circuit has announced that "litigants should be on notice from the very publication of Rule 56(e) that a party faced with a summary judgment motion `may not rest upon the mere allegations or denials' of the party's pleading and that if the party does not respond properly, `summary judgment, if appropriate, shall be entered' against him."Champion, 76 F.3d at 485 (quoting Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988)). Although "[t]he fact that there has been no response to a summary judgment motion does not, of course, mean that the motion is to be granted automatically[,]" Champion, 76 F.3d at 486, plaintiff has offered no evidence to permit a reasonable jury to return a verdict in his favor.
Because there is no genuine dispute that the City is entitled to a judgment as a matter of law, plaintiff's § 1983 claim is dismissed.
C. State Law Claims
In any action in which a federal court has original jurisdiction, "the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in this action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367(a) However, a district court may decline to exercise supplemental jurisdiction over claims if "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). The law is well settled that when federal claims are dismissed pursuant to a summary judgment motion, the state law claims should be dismissed as well. See Powell v. Gardner, 891 F.2d 1039 (2d Cir. 1989) (citing United States Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)). Because plaintiff's § 1983 claim is dismissed, his state law claims are also dismissed.
IV. CONCLUSION
For the reasons stated above, defendant's motion for summary judgment is granted. The Clerk of the Court is directed to close this case.