21

- 3155 Kennedy v. Hirsch
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 CIT ING 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 20 th day of March , two thousand twenty

- three. 3 4 PRESENT: 5 6 RICHARD C. WESLEY , 7 RICHARD J. SULLIVAN , 8 JOSEPH F. BIANCO , 9 Circuit Judges. 10

_____________________________________ 11 12 J AMES K ENNEDY , B ESA K ENNEDY , 13 14 Plaintiff s

- Appellant s , 15 16

v. No. 21

- 3155 17 18 C ARMINA H IRSCH , n é e Tessitore, individual 19 capacity, F REDERICK C ARUSO , F REDERICK 20 H INE , T OWN OF F AIRFIELD , C ONNECTICUT , 21 22 Defendant s

- A ppellee s

. * 23

_____________________________________ 24

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.2 For Plaintiff s - Appellant s : James Kennedy , Besa Kennedy, pro
se , Farmington , C T

.
For Defendant

- Appellee Carmina Hirsch : C RISTIN E. S HEEHAN , Morrison Mahoney LLP, Hartford, CT.

For Defendants

- Appellees Frederick Caruso, Frederick Hine, Town of Fairfield, Connecticut : A LAN R. D EMBICZAK , Howd & Ludorf, LLC, Hartford, CT.

1 Appeal from a judgment of the United States District Court for the District 2
of Connecticut ( Vanessa Lynne Bryant , J udge ). 3

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 4
ADJUDGED, AND DECREED that the judgment of the district court is 5

AFFIRMED

. 6

James and Besa Kennedy , proceeding pro se, appeal from the district court ’ s 7
grant of summary judgment in favor of Detective Sergeant Frederick Hine, 8

Detective Frederick Caruso , guardian ad litem Carmina Hirsch , and the Town of 9

Fairfield , Connecticut (the “Town”) on the Kennedys ’ federal civil

- rights claims 10

and assort ed state

- law claims

. Specifically, the Kennedy s allege d that Hirsch and 11

Caru s o conspired to draft and send a false incident report to the Family Court 12
overseeing the custody dispute between Mr. Kennedy and his ex

- wife ; they also 133 allege d that Hine negligently supervised Caruso and that the Town was 1
vicariously liable for the conduct of Caruso and Hine. We review a district 2

court’s “ grant of summary judgment de novo, examining the evidence in the light 3
most favorable to, and drawing all [reasonable] inferences in favor of, the 4

non

- movant.” Sullivan

- Mestecky v. Verizon Commc’ns Inc. , 961 F.3d 91, 97 (2d Cir. 5
2020) (internal quotation marks omitted). We assume the parties’ familiarity 6
with the underlying facts, procedural history, and issues on appeal. 7

As a preliminary matter, t he Kennedys argue that the district court erred in 8
finding that the y improperly objected to the factual assertions set forth in 9

Defendants’ statement of undisputed material facts

. We disagree. Under the 10

District of Connecticut’s Local Rules, a party opposing a motion for summary 11
judgment must provide “a specific citation” to “the affidavit of a witness 12
competent to testify as to the facts at trial, or [] other evidence that would be 13

admissibl e at tri al.” D. Conn. L. Civ. R. 56(a)3. “ F ailure to provide specific 14
citations to evidence in the record as required by this Local Rule may result in the 15
Court deeming admitted certain facts that are supported by the evidence in 16
accordance with Local Rule 56(a)1, or .

. . an order granting the mot ion [for 17
summary judgment] if the motion and supporting materials show that the movant 184 is entitled to judgment as a matter of law.” Id.; see also Fed. R. Civ. P. 56(e) (“I f a 1
party fails to properly support an assertion of fact or fails to properly addres s 2
another party’s assertion of fact as required by Rule 56(c), the court may .

. . 3
consider the fact undisputed for purposes of the motion [or] grant summary 4
judgment if the motion and supporting materials

– including the facts considered 5
undisputed

– show that the movant is entitled to it.” ) We are to afford 6
“considerable deference” to a district court’s interpretation and application of its 7

local rules. See LoSacco v. City of Middletown , 71 F.3d 88, 92 (2d Cir. 1995). 8

Here, the district court combed t hrough the Kennedys’ two Local Rule 9
56(a)2 statements and found that “at multiple points ” the Kennedys “ simply 10

state [d] ‘objection’ but provide [d] no basis for the objection, nor d [ id ] [they] cite to 11
anything in the record establishing the basis for [the] objection.” Sp. App’x at 7

. 12
We agree with the district court that the Kennedys ’ bareboned assertions and 13
boilerplate objections without citations to the record were inadequate under the 14

dist rict’s L ocal R ules

. Accordingly, we decline to disturb the district court’s 15
rulings

. 16

T he Kennedy s next argue that, as pro se litigant s , they were entitled to 17

amend their complaint “at least once” before their claims were dismissed

. 185 Kennedy Br. at 10 ( internal quotation marks omitted ). But e ven if we put aside 1

the fact that Mr. Kennedy is a licensed attorney who is not entitled to the solicitude 2

afforded to ordinary pro se litigants, see Tracy v. Freshwater , 623 F.3d 90, 102 (2d 3
Cir. 2010) , the record is clear that the Kennedys did in fact amend their complaint 4

“at least once.” Of course, t he more glaring problem with this argument is that 5

t he district court granted summary judgment in favor of Defendants not because 6
of any deficiencies in the Kennedys ’ pleadings , but because the Kennedy s failed to 7

offer evidence establish ing elements of their claims. The Kennedys offer no 8
explanation as to what an amended pleading would look like , much less how it 9

would affect the sufficien cy of the evidence required to withstand Defendants’ 10
motion for summary judgment. Accordingly, the district court did not err in 11
failing to sua sponte provide the Kennedys with yet another opportunity to amend 12

t heir complaint. See Gallop v. Cheney , 642 F.3d 364, 369 (2d Cir. 2011) (concluding 13

that “ no court can be said to have erred in failing to grant a request [for leave to 14
amend] that was not made,” especially when the plaintiff has provided no 15

“ indication that [he] could

– or would

– provide additional allegations that might 16

lead to a different result ”); see also Milanese v. Rust

- Oleum Corp ., 244 F.3d 104, 11 0 17
(2d Cir. 2001) (affirming district

- court decision that “it would be futile to allow 186 [Plaintiff] to amend his complaint because the proposed claim .

. . could not 1
withstand an inevitable motion for summary judgment”). 2
Turning to the merits of the distri ct court’s summary

- judgment ruling , the 3
Kennedys offer a grab bag of arguments challenging the district court ’s finding 4

that there w ere no issues of material fact as to their claims. Again, w e disagree. 5

First , the Kennedy s dispute the district court’s conclu sion that Hirsch was 6

not a state actor , noting that the court had previously determined that the 7
complaint sufficiently alleged a conspiracy between Hirsch and Detective Caruso. 8

But t his argument ignores the fundamental difference between the standards that 9
apply with respect to a motion to dismiss and th os e that apply to a motion for 10
summary judgment. Compare Concord Assocs., L.P. v. Ent. Props. Tr. , 817 F.3d 46, 11
52 (2d Cir. 2016) (“To survive a motion to di smiss, a complaint must contain 12
sufficient factual matter, accepted as true, to state a claim to relief that is plausible 13

on its face.” (internal quotation marks omitted) ) , with D’Amico v. City of New York , 14
132 F.3d 145, 149 (2d Cir. 1998) (“[S] ummary judgment is appropriate where there 15
exists no genuine issue of material fact and, based on the undisputed facts, the 16
moving party is entitled to judgment as a matter of law.”)

. There was therefore 17

no contradiction between the district court ’s initi al determination that the 187 complaint sufficiently alleged a conspiracy and its later conclusion, made after 1
reviewing the evidence at the summary

- judgment stage , that no reasonable jury 2

could find for the Kennedy s on that claim

. See Maraschiello v. City of Buffalo Police 3
Dep’t , 709 F.3d 87, 97 (2d Cir. 2013) (holding that law of the case doctrine does not 4
bar a district court from “granting summary judgment based on evidence after 5
denying a motion to dismiss based only on the plaintif f’s allegations”). 6

Second , the Kennedys argue that, with regard to their stigma

- plus claim , the 7

district court “improperly weighed the evidence in determining [that their] 8
custodial rights were not altered

. ” Kennedy Br. at 14

– 15. A stigma

- plus claim 9
requires that a plaintiff show “ (1) the utterance of a statement sufficiently 10
derogatory to injure his or her reputation, that is capable of being proved false, 11
and that he or she claims is false, and (2) a material state

- imposed burden or state

12
impo sed alteration of the plaintiff’s status or rights.” Sadallah v. City of Utica , 383 13
F.3d 34, 38 (2d Cir. 2004) (internal quotation mark s omitted)

. Additionally , t he 14
“stigma” and “plus” must be “sufficiently proximate,” a requirement that is 15

satisfied “where (1) the stigma and plus would, to a reasonable observer, appear 16

connected

– for example, due to the ir order of occurrence or their origin

– and 17
(2) the actor imposing the plus adopted (explicitly or implicitly) those statements 188 in doing so .” Velez v. Levy , 401 F.3d 75, 89 (2d Cir. 2005) (citations omitted)

. 1

Here, the Kennedys present ed no evidence of a connection between the 2
alleged false statement

– the contents of the incident report

– and the alleged 3
alteration of rights that occurred in the Family Court and at the Kennedy children ’ s 4

school. Regarding the Family Court decision, the evidence revealed that the 5

c ourt did not receive the incident report until after it decided to h old the ex parte 6

order in abeyance

. Similarly, with regard to the Tennessee school officials ’ 7

decision to release the children to their mother instead of Mr. Kennedy , there was 8

no evidence that the school officials relied on the incident report or even knew 9
about it at the time they permitted the children to leave with Mr. Kennedy’s ex

10

wife . We therefore agree with the district court that summary judgment on the 11
stigma

- plus claim was appropriate. 12

Third , the Kennedys insist that the incident report caused them to be 13
deprived of their right to familial association

. Although a parent may bring “ a 14
claim under the Due Process Clause for infringement of the right to familial 15

associations ” where state actors “ specifically intended to inter fere with the family 16
relationship , ” s ee Gorman v. Rensselaer Cnty. , 910 F.3d 40, 47

– 48 (2d Cir. 2018) , such 17
a claim may not proceed unless the plaintiff can show “that the defendant caused 189 the plaintiff to be deprived ” of that right, Back v. Hastings On Hu dson Union Free 1

Sch. Dist. , 365 F.3d 107, 122 (2d Cir. 2004) (emphasis added). Once again, b ecause 2
the Family Court and Tennessee school officials did not have the incident report 3
prior to making their respective decision s , there can be “no genuine dispute as to 4
whether the Incident Report caused the deprivation of [ the Kennedys ’ ] right to 5

familial association

. ” Sp. App’x at 3 6

. 6

Fourth , the Kennedys challenge the district court’s conclusion that they 7
presented no evidence of improper motive or concrete harm in connection with 8

their First Amendment retaliation claim

. W here

– as here

– a private citizen 9
brings a First Amendment claim , a plaintiff must show that retaliation was caused 10
by the plaintiff’s exercise of an interest protected by the First Amendment. Curley 11
v. Village of Suffern , 268 F.3d 65, 73 (2d Cir. 2001) ; see also Beechwood Restorative Care 12

Ctr. v. Leeds , 436 F.3d 147, 152 (2d Cir. 2006). But once again , t he Kennedys ha ve 13

offered no evidence establishing a causal connection between the drafting and 14
publishing of the incident report and the alleged concrete harm

– in this case, the 15
denial of custody to the Kennedy s

. 1610 We have considered the Kennedys’ remaining arguments and found them 1

to be without merit . Accordingly, we AFFIRM the judgment of the district court. 2

FOR THE COURT: 3 Catherine O = Hagan Wolfe, Clerk of Court 4 5