     14-137
     Vega v. Rell


                         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 ASUMMARY ORDER@). A PARTY CITING TO 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 for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 8th day of May, two thousand fifteen.
 4
 5   PRESENT:
 6               JOHN M. WALKER, JR.,
 7               GERARD E. LYNCH,
 8               RAYMOND J. LOHIER, JR.,
 9                     Circuit Judges.
10   _____________________________________
11
12   Joe Burgos Vega,
13
14                          Plaintiff-Appellant,
15
16                  v.                                                         14-137
17
18   M. Jodi Rell, I/O, et al.,
19
20                          Defendants-Appellees,
21
22   Steven R. Strom, I/O, et al.,
23
24                          Defendants.
25
26   _____________________________________
27
28   FOR PLAINTIFF-APPELLANT:                      Joe Burgos Vega, pro se, Cheshire, CT.
29


                                                      1
 1   FOR DEFENDANTS-APPELLEES:                              Steven R. Strom, Assistant Attorney General of the
 2                                                          State of Connecticut, Hartford, CT, for George
 3                                                          Jepsen, Attorney General of the State of
 4                                                          Connecticut, Hartford, CT.
 5
 6            Appeal from a judgment of the United States District Court for the District of Connecticut

 7   (Vanessa L. Bryant, J.).1


 8            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 9   DECREED that the judgment of the district court be AFFIRMED in part, and that the appeal be

10   DISMISSED in part, without prejudice to reinstatement.

11            Appellant Joe Burgos Vega, proceeding pro se, argues that the district court erred in

12   denying his motions for appointment of counsel, dismissing some of his claims sua sponte

13   pursuant to 28 U.S.C. § 1915A, granting partial summary judgment to defendants, and granting

14   judgment as a matter of law to the defendants as to his remaining claims. We assume the parties’

15   familiarity with the underlying facts and procedural history of the case.

16            I.       Denial of Motions for Appointment of Counsel

17            We review a district court’s decision whether to appoint counsel for abuse of discretion.

18   See Carpenter v. Republic of Chile, 610 F.3d 776, 780 (2d Cir. 2010). When deciding whether to

19   appoint counsel, the district court “should first determine whether the indigent’s position seems

20   likely to be of substance.” Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). Once this



     1
       The district court did not file a separate judgment in this matter. If a required separate judgment is not entered,
     however, it is deemed to have been entered 150 days after entry of the dispositive order. Fed. R. Civ. P. 58(c)(2)(B);
     Fed. R. App. P. 4(a)(7)(A)(ii). Vega filed his notice of appeal on January 15, 2014—before 150 days had expired
     following the court’s order. As “[a] notice of appeal filed after the court announces a decision or order—but before
     the entry of the judgment or order—is treated as filed on the date of and after the entry,” Fed. R. App. P. 4(a)(2), the
     appeal here was timely. “Where an order appealed from clearly represents a final decision and the appellees do not
     object to the taking of an appeal, the separate document rule is deemed to have been waived and the assumption of
     appellate jurisdiction is proper.” Selletti v. Carey, 173 F.3d 104, 109-10 (2d Cir. 1999).

                                                                2
 1   “threshold requirement” has been met, a court should consider secondary factors, such as “the

 2   indigent’s ability to investigate the crucial facts, . . . the indigent’s ability to present the case, the

 3   complexity of the legal issues and any special reason in that case why appointment of counsel

 4   would be more likely to lead to a just determination.” Id. at 61-62. We have rejected a policy of

 5   appointing counsel only after a plaintiff’s claim has survived a dispositive motion. Hendricks v.

 6   Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997).

 7           Even assuming that Vega’s claims met the threshold requirement of likely merit, it is

 8   evident from the record that the secondary factors weighed against appointment of counsel. As

 9   the district court observed, Vega had litigation experience and paralegal training, and he

10   demonstrated an ability to pursue his claims without assistance of counsel. The district court also

11   based its decision in part on Vega’s “clear recalcitrance in this case,” Vega v. Rell, 3:09-cv-737

12   (VLB) (D. Conn. filed Dec. 11, 2012), ECF No. 179 at 7, finding that he had “not acted in good

13   faith” by “consistently . . . ignor[ing] the court’s dismissal of claims from th[e] case,” id. at 5.

14   Under these circumstances, the district court did not abuse its discretion in declining to appoint

15   counsel.

16           II.     Sua Sponte Dismissals

17           Vega also challenges the district court’s dismissals of various claims sua sponte pursuant to

18   § 1915A. On appeal, he argues only that the district court dismissed claims of “constitutional

19   meritorious magnitude,” without identifying the district court’s error or explaining the

20   constitutional significance of his claims. Appellant’s Br. at 21. He has therefore waived review

21   of these dismissals. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998). “[A]ppellate

22   courts generally do not hold pro se litigants rigidly to the formal briefing standards . . . [but] we


                                                         3
 1   need not manufacture claims of error for an appellant proceeding pro se, especially when he has

 2   raised an issue below and elected not to pursue it on appeal.” LoSacco v. City of Middletown, 71

 3   F.3d 88, 93 (2d Cir. 1995) (citation omitted).

 4          III.    Summary Judgment

 5          We review de novo a district court’s grant of summary judgment, “resolv[ing] all

 6   ambiguities and draw[ing] all factual inferences in favor of the [non-movant].” Nationwide Life

 7   Ins. Co. v. Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir. 1999) (internal quotation marks

 8   omitted). “Summary judgment is appropriate only if the moving party shows that there are no

 9   genuine issues of material fact and that the moving party is entitled to judgment as a matter of

10   law.” Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).

11                  A. July 9, 2012 Grant of Partial Summary Judgment
12
13          On July 9, 2012, the district court granted summary judgment to defendants Furey and

14   Silvis on Vega’s claims of deliberate indifference to serious medical needs and involuntary

15   administration of psychiatric medication. Vega contends that the district court erred by deeming

16   Silvis’s and Furey’s Local Rule 56(a)1 statement of facts undisputed because Vega’s statement in

17   opposition to summary judgment lacked citations to either the affidavit of a witness who would be

18   competent to testify or to other admissible evidence, as required by Local Rule 56(a)3.

19          We give “considerable deference” to the district court’s interpretation and application of its

20   own local rule, and review such rulings for abuse of discretion. See LoSacco, 71 F.3d at 92.

21   However, “[a] local rule imposing a requirement of form must not be enforced in a way that causes

22   a party to lose any right because of a nonwillful failure to comply.” Fed. R. Civ. P. 83(a)(2).

23   Vega had notice of the requirements of the local rule yet failed to comply. However, he did


                                                      4
1    submit a 17-page affidavit with assertions of fact that countered those set forth in Silvis’s and

2    Furey’s statement of undisputed facts. In support of his affidavit’s counter-assertions of fact,

3    Vega cited to his medical records. Accordingly, we would be reluctant to ignore Vega’s

4    submission on the ground that its form did not fully comply with the local rule.

5            However, the district court did not itself disregard Vega’s submission. On the contrary, it

 6   analyzed his affidavit’s counter-assertions of fact, but concluded that his uncontroverted medical

 7   records undercut each one. “When opposing parties tell two different stories, one of which is

 8   blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not

 9   adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v.

10   Harris, 550 U.S. 372, 380 (2007); see also D’Amico v. City of New York, 132 F.3d 145, 149 (2d

11   Cir. 1998) (explaining that the party opposing summary judgment “may not rely on mere

12   conclusory allegations nor speculation, but instead must offer some hard evidence” in support of

13   its factual assertions). On appeal, Vega does not claim that the district court misconstrued the

14   medical records, nor does he point to any evidence that refutes the defendants’ statement of facts

15   entitling them to summary judgment. Therefore, Vega was not prejudiced by the district court’s

16   application of Local Rule 56(a)3, and the district court did not abuse its discretion in applying that

17   rule.

18           Vega also argues that the district court prematurely granted summary judgment for Silvis

19   and Furey because the defendants had not yet complied with his motion to compel discovery of

20   various documents. Vega’s argument overlooks the fact that the district court denied Vega’s

21   motion to compel discovery before granting summary judgment. In any event, Vega has not

22   identified, either in his objection to summary judgment as premature in the district court or in his


                                                       5
 1   brief before this Court, any specific discoverable information he hoped to obtain by his discovery

 2   requests that would have raised a material issue of fact. Vega’s assertion that summary judgment

 3   was premature due to incomplete discovery is therefore without merit. See Paddington Partners

 4   v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994) (“[The nonmovant’s] argument is that it should be

 5   allowed to find out if it has a claim, rather than that it has a claim for which it needs additional

 6   discovery. Such divagation is decidedly not the object of the discovery procedures outlined in the

 7   Federal Rules of Civil Procedure.”).

 8                  B. December 4, 2013 Grant of Partial Summary Judgment

 9          On December 4, 2013, the district court granted summary judgment in favor of defendants

10   on Vega’s claim that he experienced unsanitary cell conditions in the Restrictive Housing Unit on

11   the grounds that Vega failed to exhaust his administrative remedies. Vega argues that his failure

12   to grieve this claim should be excused because correction officers refused to provide him the

13   correct grievance form.

14          The Prison Litigation Reform Act mandates that inmates exhaust the administrative

15   remedies available to them before they seek relief in federal court for prison conditions. See

16   Porter v. Nussle, 534 U.S. 516, 532 (2002). “[P]roper exhaustion” requires “using all steps that

17   the agency holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006)

18   (emphasis in original) (internal quotation marks omitted). While exhaustion is mandatory, failure

19   to exhaust may be excused when “administrative remedies are not available to the prisoner” or

20   when the prisoner has “a reasonable misunderstanding of the grievance procedures.” Ruggiero v.

21   County of Orange, 467 F.3d 170, 175 (2d Cir. 2006), citing Hemphill v. New York, 380 F.3d 680,

22   686 (2d Cir. 2004).


                                                       6
 1          The district court correctly determined that Vega failed to raise a triable issue of fact on

 2   whether his failure to exhaust his administrative remedies may be excused. Vega offered no

 3   evidence beyond his conclusory allegation that grievance forms were not available to him.

 4   Moreover, the record demonstrates that Vega was provided a form on which he could have grieved

 5   his complaint, but elected not to use it. Instead, he filed a lengthy appeal of a disciplinary

 6   proceeding that contained only a single sentence referencing conditions in his cell. Accordingly,

 7   the district court did not err in granting summary judgment on this claim.

 8          Vega also challenges the district court’s decision in the December 4, 2013 summary

 9   judgment order not “to continue to liberally construe [Vega’s] pleadings, a construction

10   traditionally afforded pro se parties.” Vega, 3:09-cv-737 (VLB) (D. Conn. filed Dec. 4, 2013)

11   ECF No. 270 at 3. Vega suffered no prejudice from this decision because his exhaustion claim

12   was unsupported, and indeed contradicted, by the record, and therefore did not present a triable

13   issue of fact even under a liberal construction. Thus, we need not address whether, given Vega’s

14   litigation experience and paralegal training, the district court’s decision to discontinue liberal

15   construction was a proper exercise of its discretion. See Tracy v. Freshwater, 623 F.3d 90,

16   101-02 (2d Cir. 2010).

17          IV.     Judgment as a Matter of Law

18          After filing his notice of appeal, Vega moved this Court “to be loaned/furnished a copy of

19   the record on appeal.” Appellant’s Mot., June 19, 2014, ECF No. 41 at 1. We denied that

20   motion, noting that Vega had “already submitted his brief” and therefore that “he no longer

21   need[ed] the record to complete his brief.” Mot. Order, Aug. 13, 2014, ECF No. 68 at 1. We

22   explained that “to the extent trial transcripts are necessary to decide his appeal, [Vega] is


                                                       7
 1   responsible for providing the transcripts.” Id. We further advised Vega that he could seek free

 2   transcripts in the district court by submitting a motion identifying issues that present a substantial

 3   question, and that if this motion was denied Vega could then move in this Court. Vega replied

 4   that he would not seek any transcripts because he was “influenced by the Court’s . . . reasoning in

 5   which the Court stated ‘. . . Appellant has already submitted his brief . . . .’” Appellant’s

 6   Submission, Sept. 17, 2014, ECF No. 69 at 1-2.

 7           Vega is obligated to provide the trial transcripts because without them we cannot assess his

 8   claims that the district court erred in granting judgment to defendants as a matter of law. See Fed.

 9   R. App. P. 10(b). Ordinarily, Vega’s failure to provide the transcripts after being informed of his

10   obligation to do so would result in his claim being dismissed with prejudice. See, e.g., Wrighten

11   v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000). However, we recognize that our prior order was

12   ambiguous, and Vega appears to have interpreted it, not unreasonably, to indicate that the

13   transcripts were unnecessary because he had already submitted his brief. Accordingly, we

14   dismiss this portion of his appeal without prejudice to afford him another opportunity to obtain the

15   transcripts. See Gayle v. Walker, 148 F.3d 214, 214 (2d Cir. 1998) (dismissing pro se appeal

16   without prejudice to reinstatement for failure to file transcripts). As explained, Vega may seek

17   free transcripts in the district court by submitting a motion that identifies issues that present a

18   substantial question. See 28 U.S.C. § 753(f). If the district court denies the motion, Vega may

19   move in this Court and must again list issues that present a substantial question. See 2d Cir. R.

20   24.1.

21           Vega’s appeal of the judgment as a matter of law is therefore DISMISSED WITHOUT

22   PREJUDICE to reinstatement, provided that, within 30 days of the date of this order, he provides


                                                        8
1   this Court with (1) the trial transcripts; (2) proof that he has ordered the transcripts; or (3) proof

2   that he has moved in the district court for free transcripts under 28 U.S.C. § 753(f). Upon timely

3   filing of the trial transcripts, the appeal will be reinstated, and will be assigned to a new panel in the

4   ordinary course. In all other respects, for the reasons set forth above, the judgment of the district

5   court is hereby AFFIRMED.

6                                                   FOR THE COURT:
7                                                   Catherine O=Hagan Wolfe, Clerk




                                                        9
