13-3379-cv; 13-3382-cv
Mullen et al.; Vassenelli v. City of Syracuse et al.

                                      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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 12th day of November, two thousand fourteen.

PRESENT:              JOHN M. WALKER, JR.,
                      JOSÉ A. CABRANES,
                      RAYMOND J. LOHIER, JR.,
                                   Circuit Judges.


JAMES MULLEN and KARL SCHMIDT,

                      Plaintiffs-Appellants,

                                 v.                                    No. 13-3379-cv

THE CITY OF SYRACUSE; STEPHANIE A. MINER, in her
individual and official capacity as Mayor of the City of
Syracuse; FRANK L. FOWLER, in his individual and official
capacity as Chief of Police for the City of Syracuse; JUDY
CULETON, in her individual and official capacity as Director
of the Human Resources Division of the Syracuse Police
Department; MATTHEW DRISCOLL, in his individual capacity
as former Mayor of the City of Syracuse; GARY MIGUEL, in
his individual capacity as former Chief of Police for the City
of Syracuse; SERGEANT RICHARD PERRIN, in his individual
and official capacity as an Officer with the Human Resources
Division of the Syracuse Police Department; and POMCO
GROUP a/k/a POMCO, Inc., individually and as an agent for
the City of Syracuse,

                      Defendants-Appellees.
NICHOLAS L. VASSENELLI,

                  Plaintiff-Appellant,

                           v.
                                                                                            No. 13-3382-cv
THE CITY OF SYRACUSE; STEPHANIE A. MINER, in her
individual and official capacity as Mayor of the City of
Syracuse; FRANK L. FOWLER, in his individual and official
capacity as Chief of Police for the City of Syracuse; JUDY
CULETON, in her individual and official capacity as Director
of the Human Resources Division of the Syracuse Police
Department; MATTHEW DRISCOLL, in his individual capacity
as former Mayor of the City of Syracuse; GARY MIGUEL, in
his individual capacity as former Chief of Police for the City
of Syracuse; SERGEANT RICHARD PERRIN, in his individual
and official capacity as an Officer with the Human Resources
Division of the Syracuse Police Department; POMCO
GROUP a/k/a POMCO, Inc., individually and as an agent for
the City of Syracuse; SHARON MILLER, in her individual and
official capacity and as agent of the City of Syracuse; SHARON
ERIKSSON, in her individual and official capacity and as agent
of the City of Syracuse; and DAVID BARRETTE, in his individual
and official capacity,

                  Defendants-Appellees.*


FOR PLAINTIFFS-APPELLANTS:                                                        A.J. Bosman, Bosman Law
                                                                                  Firm, LLC, Rome, NY.

FOR DEFENDANTS-APPELLEES CITY OF
SYRACUSE, STEPHANIE A. MINER, FRANK L.
FOWLER, JUDY CULETON, MATTHEW DRISCOLL,
GARY MIGUEL, SERGEANT RICHARD PERRIN,
DAVID BARRETTE:                                                                   Mary Louise Conrow,
                                                                                  Coughlin & Gerhart, LLP,
                                                                                  Binghamton, NY.

FOR DEFENDANTS-APPELLEES POMCO, INC.,
SHARON MILLER:                                                                    Robert A. Barrer, Hiscock &
                                                                                  Barclay LLP, Syracuse, NY.



       *   The Clerk of Court is directed to amend the caption to conform with the above.

                                                          2
FOR DEFENDANT-APPELLEE SHARON
ERIKSSON:                                                               James C. Brady, Law Offices
                                                                        of Brady & Carafa, Syracuse,
                                                                        NY.

       Appeal from judgments dated August 5, 2013 and orders dated February 4, 2013, May 28,
2013, and November 6, 2013 of the United States District Court for the Northern District of New
York (David N. Hurd, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgments and orders of the District Court be
AFFIRMED.

         Plaintiffs-appellants, three disabled and retired Syracuse police officers, appeal from two
District Court judgments, both dated August 5, 2013, granting defendants-appellees’ motions for
summary judgment and from the District Court’s post-judgment orders of November 6, 2013
denying relief under Fed. R. Civ. P. 59(e) and 60(b). Plaintiffs James Mullen and Karl Schmidt and
plaintiff Nicholas Vassenelli had initiated two actions by complaints dated September 16, 2010 and
November 24, 2010, respectively, against the City of Syracuse, Syracuse Police Department officials,
private third-party benefits administrator POMCO Group, and other individual defendants.
Plaintiffs asserted numerous claims pursuant to 42 U.S.C. § 1983, inter alia, all arising out of a
municipal policy change that allegedly affected plaintiffs’ access to medical care and benefits
guaranteed by New York state law. Plaintiffs also challenge on appeal several District Court orders
affirming discovery orders issued by Magistrate Judge David E. Peebles. Because these two cases,
which were argued in tandem, concern coincident issues, present substantively similar facts, and seek
identical relief, we consolidate them for disposition. We assume the parties’ familiarity with the
underlying facts and procedural history of the cases.

        We review de novo an order granting summary judgment and “resolv[e] all ambiguities and
draw[] all permissible factual inferences in favor of the party against whom summary judgment is
sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal quotation marks omitted). We
must affirm a summary judgment order when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[C]onclusory
statements or mere allegations [are] not sufficient to defeat a summary judgment motion.” Davis v.
New York, 316 F.3d 93, 100 (2d Cir. 2002).

         On appeal, plaintiffs challenge the District Court’s summary dismissal of their procedural
and substantive due process claims. It is axiomatic that “[t]he first inquiry in every due process
challenge is whether the plaintiff has been deprived of a protected interest in ‘property’ or ‘liberty.’”
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (citing U.S. CONST. amendt. XIV; Mathews v.
Eldridge, 424 U.S. 319, 332 (1976)). To establish a substantive due process claim, plaintiffs must
further demonstrate that the deprivation “is so egregious, so outrageous, that it may fairly be said to
                                                    3
shock the contemporary conscience.” Velez v. Levy, 401 F.3d 75, 93 (2d Cir. 2005) (quoting Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)) (internal quotation marks omitted).

         The District Court found that plaintiffs had failed to sufficiently establish actual deprivation
of necessary medical care guaranteed under New York General Municipal Law § 207-c, and further
failed to demonstrate “conscience-shocking behavior.” Mullen et al. v. City of Syracuse et al., No. 5:10-
cv-1110 (DNH), Dkt. 157 at 14-17, 22 (N.D.N.Y. Aug. 5, 2013); Vassenelli v. City of Syracuse et al., No.
5:10-cv-1422 (DNH), Dkt. 240 at 15-19, 27 (N.D.N.Y. Aug. 5, 2013). Upon an independent review
of the record, we agree. In light of the failure to establish a genuine issue of material fact as to either
procedural or substantive due process claims, summary judgment was properly granted.1

         We review the denial of a motion brought pursuant to Rule 59(e) or Rule 60(b) for “abuse of
discretion.” Schwartz v. Liberty Mut. Ins. Co., 539 F.3d 135, 150 (2d Cir. 2008); Motorola Credit Corp. v.
Uzan, 561 F.3d 123, 126 (2d Cir. 2009); see In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (noting that a
district court abuses its discretion if it “base[s] its ruling on an erroneous view of the law or on a
clearly erroneous assessment of the evidence, or render[s] a decision that cannot be located within
the range of permissible decisions” (internal citation and quotation marks omitted)). We apply the
same “abuse of discretion” standard of review to a district court’s discovery rulings, bearing in mind
that a “district court has broad discretion to manage pre-trial discovery.” Wood v. FBI, 432 F.3d 78,
84 (2d Cir. 2005). Where, as here, the district court has referred a non-dispositive matter to a
magistrate judge for decision, the district court shall set aside the order only insofar as it “is clearly
erroneous or is contrary to law.” Fed. R. Civ. P. 72(a).

        The District Court did not abuse its discretion in denying plaintiffs’ post-judgment motions,
which essentially attempted to relitigate issues already resolved. See Shrader v. CSX Transp., Inc., 70
F.3d 255, 257 (2d Cir. 1995). Similarly, the District Court acted well within its discretion in denying
as meritless plaintiffs’ objections to Magistrate Judge Peebles’s orders.2




         1
              We do, however, view with skepticism the District Court’s conclusion that all non-municipal defendants,
including self-employed nurse case manager Sharon Eriksson, engaged in “state action” for purposes of § 1983. Mullen et
al. v. City of Syracuse et al., No. 5:10-cv-1110 (DNH), Dkt. 157 at 8-10 (N.D.N.Y. Aug. 5, 2013); Vassenelli v. City of Syracuse
et al., No. 5:10-cv-1422 (DNH), Dkt. 240 at 9-12 (N.D.N.Y. Aug. 5, 2013). Nevertheless, since the presence (or
absence) of state action is not outcome-determinative here, nor was it before the District Court, we need not reach the
issue.

         2 Because we affirm the District Court’s finding that plaintiffs’ objections were meritless, we need not reach the
issue of whether they were timely filed.

                                                               4
                                        CONCLUSION

       We have considered all of the arguments raised by plaintiffs on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the District Court’s judgments and orders
of February 4, 2013, May 28, 2013, August 5, 2013 and November 6, 2013.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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