         08-0139-pr
         Nuñez v. Hasty, 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 .

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19 th day of April, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                AMALYA L. KEARSE,
 9                GUIDO CALABRESI,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       ELIAS NUÑEZ,
14
15                    Plaintiff-Appellant,
16
17                    -v.-                                         08-0139-pr
18
19       DENNIS W. HASTY, Warden, MDC-Brooklyn,
20       MIDDLETON, Medical Supervisor, MDC-
21       Brooklyn, F. FRANCIN, Medical
22       Director, MDC-Brooklyn, M.E. RAY,
23       B.O.P. Northeast Regional Director, C.
24       SHACKS, B.O.P. Unit Manager, MDC-
25       Brooklyn, H. WATTS, Administrator,
26       Bureau of Prisons, Central Office,
27       Washington, D.C.,
28
29                Defendants-Appellees.
30       - - - - - - - - - - - - - - - - - - - -X
 1   APPEARING FOR APPELLANT:   Michael Poreda and Sarah A.
 2                              Geers (Jon Romberg, on the
 3                              brief), Seton Hall University
 4                              School of Law, Center for Social
 5                              Justice, Newark, NJ.
 6
 7   APPEARING FOR APPELLEES:   Kenneth Abell, Assistant United
 8                              States Attorney (Varuni Nelson,
 9                              Assistant United States
10                              Attorney, on the brief), for
11                              Benton J. Campbell, United
12                              States Attorney, United States
13                              Attorney’s Office for the
14                              Eastern District of New York,
15                              Brooklyn, NY.
16
17        Appeal from a judgment of the United States District
18   Court for the Eastern District of New York (Gleeson, J.).
19
20        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21   AND DECREED that the judgment of the district court be
22   VACATED and the matter be REMANDED for further proceedings.
23
24        Plaintiff-appellant Elias Nuñez appeals from a judgment
25   of the United States District Court for the Eastern District
26   of New York (Gleeson, J.), granting summary judgment in
27   favor of defendants-appellees. We assume the parties’
28   familiarity with the underlying facts, the procedural
29   history, and the issues presented for review.
30
31        On September 8, 2006, Magistrate Judge Bloom issued a
32   22-page Report and Recommendation recommending in relevant
33   part that “defendants’ motion to dismiss or for summary
34   judgment should be denied as premature as the parties have
35   not had an opportunity to conduct discovery.” Defendants
36   timely filed objections and on December 12, 2007, the
37   district court entered the following order--reproduced in
38   full--granting summary judgment:
39
40            Because I respectfully disagree with Judge Bloom’s
41            conclusion that discovery would be useful, I
42            decline to adopt that portion of her Report and
43            Recommendation of September 8, 2006 that denies
44            the defendants’ motion for summary judgment.

                                  2
 1            Accordingly, the defendants’ motion for summary
 2            judgment is granted in its entirety.
 3
 4        The district court’s decision “is simply too spare to
 5   serve as a basis for our review.” Beckford v. Portuondo,
 6   234 F.3d 128, 130 (2d Cir. 2000) (per curiam).
 7
 8            Although we have repeatedly observed, in words or
 9            substance, that we review a grant of summary
10            judgment de novo applying the same standard as the
11            district court, that does not mean that it is our
12            function to decide motions for summary judgment in
13            the first instance. We are dependent on the
14            district court to identify and sort out the issues
15            on such motions, to examine and analyze them, and
16            to apply the law to the facts accepted by the
17            court for purposes of the motion. We are entitled
18            to the benefit of the district court’s judgment,
19            which is always helpful and usually persuasive.
20
21   Id. (internal quotation marks, citation, and alteration
22   omitted). We therefore remand the matter “to the district
23   court for further consideration and a complete and
24   comprehensive decision.” Id.
25
26        Accordingly, the judgment of the district court is
27   hereby VACATED and the matter is REMANDED for further
28   proceedings consistent with this order.
29
30                              FOR THE COURT:
31                              CATHERINE O’HAGAN WOLFE, CLERK
32
33




                                  3
