09-4566-cv

Tota v. Bentley

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE

OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A

PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY

COUNSEL.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 26 day of May, two thousand ten. th

PRESENT:

DENNIS JACOBS,

Chief Judge,

ROGER J. MINER,

RICHARD C. WESLEY,

Circuit Judges.

__________________________________________

ANTHONY SAMUEL TOTA,

Plaintiff-Appellant, 

 v. 09-4566-cv

DAVID W. BENTLEY, Chautauqua County 

Sheriff’s Department Special Weapons

and Tactics Officer, STEVEN ANDERSON, 

BRYAN BURMASTER, JOHN DESNERCK, 

JEFFREY HOVER, STEPHEN MADONIA, 

JEFFREY NELSON, JAMES RENSEL and 

DALE VAN VLACK, JR.,

Defendants-Appellees,

COUNTY OF CHAUTAUQUA, CITY OF 

JAMESTOWN, FRANZEN, JAMESTOWN POLICE
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DEPARTMENT, JOHN DOES, CITY OF 

JAMESTOWN, SWAT OFFICERS and CHAUTAUQUA

COUNTY SHERIFF’S DEPARTMENT SPECIAL

WEAPONS AND TACTICS OFFICERS,

Defendants.

__________________________________________

 

FOR APPELLANT: Anthony Samuel Tota, pro se,

Jamestown, NY.

FOR APPELLEES: Daryl P. Brautigam, Brautigam &

Brautigam, L.L.P., Fredonia, NY.

Appeal from a judgment of the United States District

Court for the Western District of New York (Skretny, C.J.).

UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court be

AFFIRMED.

Plaintiff-appellant Anthony Samuel Tota appeals pro se

from the judgment of the United States District Court for

the Western District of New York (Skretny, C.J.), which

granted summary judgment dismissing his excessive force

claim against police personnel. We assume the parties’

familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

Tota asserts that the district court erred in granting

the defendants’ motion for summary judgment despite their

failure to comply with Local Rules 56.1 and 56.2 of the

United States District Court for the Western District of New

York. Local Rule 56.1 provides that a party moving for

summary judgment shall include “a separate, short, and

concise statement of the material facts as to which the

moving party contends there is no genuine issue to be tried. 

Failure to submit such a statement may constitute grounds

for denial of the motion.” The defendants failed to file

such a statement with their moving papers. But we find no

abuse of discretion because (i) the defendants filed such a

statement with their reply papers, (ii) the statement was
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based on affidavits submitted with the defendants’ moving

papers, and (iii) Local Rule 56.1 permits--but does not

require--the denial of a non-compliant motion for summary

judgment. See LoSacco v. City of Middletown, 71 F.3d 88, 92

(2d Cir. 1995) (reviewing for “abuse of discretion,” and

“accord[ing] considerable deference” to, “the district

court’s interpretation and application of its own local

rule”). 

Local Rule 56.2 requires a party seeking summary

judgment against a pro se litigant to provide notice of the

nature and consequences of a motion for summary judgment in

accordance with Vital v. Interfaith Medical Center, 168 F.3d

615, 620-21 (2d Cir. 1999). The defendants concede that

they failed to provide such notice to Tota, and there is no

indication that the district court filled this gap. 

Although “[t]he failure to give actual notice to a pro se

litigant of the consequences of not responding adequately to

a summary judgment motion will usually constitute grounds

for vacatur,” such a failure “will be deemed harmless” where

the pro se party “demonstrate[s] a clear understanding of

the nature and consequences of a summary judgment motion and

the need to set forth all available evidence demonstrating a

genuine dispute over material facts.” Jova v. Smith, 582

F.3d 410, 414 (2d Cir. 2009) (internal quotation marks

omitted and emphasis added). We affirm the district court’s

finding of harmlessness because Tota vigorously opposed the

defendants’ motion for summary judgment. See Vital, 168

F.3d at 621 (considering “the nature of the papers submitted

by the litigant and the assertions made therein as well as

the litigant’s participation in proceedings before the

District Court”). 

Tota argues that the district court failed to consider

various disputed material facts and improperly weighed the

credibility of the parties. We “review a district court’s

decision to grant summary judgment de novo, resolving all

ambiguities and drawing all permissible factual inferences

in favor of the party against whom summary judgment is

sought.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)

(internal quotation marks, citations, and brackets omitted);

see also Fed. R. Civ. P. 56(c)(2). “While it is undoubtedly

the duty of district courts not to weigh the credibility of

the parties at the summary judgment stage, in the rare

circumstance where the plaintiff relies almost exclusively
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on his own testimony, much of which is contradictory and

incomplete, it will be impossible for a district court to

determine whether the jury could reasonably find for the

plaintiff and thus whether there are any ‘genuine’ issues of

material fact, without making some assessment of the

plaintiff’s account.” Jeffreys v. City of New York, 426

F.3d 549, 554 (2d Cir. 2005) (internal quotation marks and

citation omitted). Following de novo review of the record,

we conclude that Tota failed to (i) submit any independent

evidence corroborating his allegations of excessive force,

(ii) mention the purported police brutality during his state

court criminal proceedings, and (iii) recollect any of the

events precipitating his arrest despite his vivid

recollection of the alleged abuse involved in his arrest. 

Accordingly, we affirm the district court’s determination

that Tota failed to raise a genuine issue of material fact. 

 

Tota argues that the defendants and the district court

violated Magistrate Judge Scott’s protective order which

declined to require Tota to execute medical authorizations

for the release or production of his psychological records. 

Tota cites references in the record to his psychiatric

condition; but these references did not violate the

protective order, and, in any event, were not dispositive in

the district court proceedings. 

Tota argues that the district court refused to afford

him sufficient time to conduct discovery after Tota named

new defendants in the amended complaint. We find no abuse

of discretion in the district court’s management of

discovery. See In re Agent Orange Prod. Liab. Litig., 517

F.3d 76, 102 (2d Cir. 2008). 

We have reviewed all of Tota’s arguments on this appeal

and find them unpersuasive. Accordingly, the judgment of

the district court is hereby AFFIRMED.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK