Filed: Jul. 20, 2018
Latest Update: Jul. 20, 2018
Summary: REPORT AND RECOMMENDATION HENRY PITMAN , Magistrate Judge . TO THE HONORABLE GEORGE B. DANIELS, United States District Judge, I. Introduction By notice of motion dated December 28, 2017 (Docket Item ("D.I.") 45), plaintiff moves for summary judgment. For the reasons set forth below, I respectfully recommend that the motion be denied. II. Facts This is a civil rights action brought under 42 U.S.C. 1983. Reading the Second Amended Complaint leniently in light of plaintiff's pro se
Summary: REPORT AND RECOMMENDATION HENRY PITMAN , Magistrate Judge . TO THE HONORABLE GEORGE B. DANIELS, United States District Judge, I. Introduction By notice of motion dated December 28, 2017 (Docket Item ("D.I.") 45), plaintiff moves for summary judgment. For the reasons set forth below, I respectfully recommend that the motion be denied. II. Facts This is a civil rights action brought under 42 U.S.C. 1983. Reading the Second Amended Complaint leniently in light of plaintiff's pro se ..
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REPORT AND RECOMMENDATION
HENRY PITMAN, Magistrate Judge.
TO THE HONORABLE GEORGE B. DANIELS, United States District Judge,
I. Introduction
By notice of motion dated December 28, 2017 (Docket Item ("D.I.") 45), plaintiff moves for summary judgment. For the reasons set forth below, I respectfully recommend that the motion be denied.
II. Facts
This is a civil rights action brought under 42 U.S.C. § 1983. Reading the Second Amended Complaint leniently in light of plaintiff's pro se status,1 on April 19, 2015, plaintiff was detained, searched and arrested by defendants without reasonable suspicion or probable cause (Second Amended Complaint, dated Dec. 1, 2016 (D.I. 14)). He further claims that after he produced his drivers license to the arresting officers they refused to return it to him.
In the First Amended Complaint, plaintiff alleges that when the arresting officers searched him, they recovered a utility knife that was provided to him by his employer, the City of New York, to open boxes (First Amended Complaint dated Nov. 14, 2016 (D.I. 19) ("First Am. Compl.")). Plaintiff goes on to allege in the First Amended Complaint:
I told the defendants that part of my job duties include cutting open boxes and removing the contents. The defendants told me I was under arrest. The defendants told me that I was being arrested because I refused to empty my pockets after I had been ordered to do so. They also told me that this is what happens to wise guys.
(First Am. Compl. at 5).
Although defendants admit that there was an encounter on or about April 19, 2015 between plaintiff and members of the New York City Police Department, they deny all the other material allegations set forth in the Second Amended Complaint.
Plaintiff's motion consists entirely of a one-page form notice of motion without any accompanying affidavits or other evidentiary material. Plaintiff states the following on the notice of motion:
PLEASE TAKE NOTICE that plaintiff Edward Barnes requests that the Court: grant me summary judgment for my 4th Amendment [rights] being violated, inanprobable [sic] cause of search and seizure, embar[r]assment, humiliation and emotional distress plus I reduce amount of money on each claim to half of what was stated, and haven't had a response!
(Notice of Motion (D.I. 45)).
In support of the motion, plaintiff endorsed "all exhibits + evidence from 1st & 2nd claim" (Notice of Motion).
III. Analysis
Although plaintiff's motion suffers from a number of procedural flaws, I choose to address it on the merits.
Federal Rule of Civil Procedure 56 provides, in pertinent part:
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. . . .
* * *
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
"It is the movant's burden to show that no genuine factual dispute exists." Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004), citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); accord Crawford v. Franklin Credit Mcfm't Corp., 758 F.3d 473, 486 (2d Cir. 2014); see also Giannullo v. City of New York, 322 F.3d 139, 140-41 (2d Cir. 2003) ("where the movant fail[s] to fulfill its initial burden of providing admissible evidence of the material facts entitling it to summary judgment, summary judgment must be denied" (inner quotations & citation omitted)).
Plaintiff's motion should be denied because he has submitted no evidence whatsoever that his encounter with the police violated his rights under the Fourth Amendment. Although plaintiff cites to his complaints in his notice of motion, none of the complaints is verified and, thus, they have no evidentiary weight. Reliance on unverified pleadings cannot provide a basis for summary judgment. Engl v. Aetna Life Ins. Co., 139 F.2d 469, 472 (2d Cir. 1943) ("[T]he history of the development of [Rule 56] shows that it is intended to permit a party to pierce the allegations of fact in the pleadings and to obtain relief by summary judgment where facts set forth in detail in affidavits, depositions, and admissions on file show that there are no genuine issues of fact to be tried." (inner quotations & citations omitted)). Because plaintiff's summary judgment motion is entirely unsupported by any evidence, it should be denied.
IV. Conclusion
Accordingly, for all the foregoing reasons, I respectfully recommend that plaintiff's motion for summary judgment (D.I. 45) be denied.
V. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections and responses thereto) shall be filed with the Clerk of the Court with courtesy copies delivered to the Chambers of the Honorable George B. Daniels, United States District Judge, 500 Pearl Street, Room 1310, New York, New York 10007 and to the Chambers of the undersigned, 500 Pearl Street, Room 1670, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983) (per curiam).
