    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 th day of May, two thousand ten.

    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
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




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