08-3510-cv
Dixon v. Zenk


                                      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 19th day of January, two thousand ten.

PRESENT:
                     JOSÉ A. CABRANES,
                     ROSEMARY S. POOLER,
                     GERARD E. LYNCH ,
                                  Circuit Judges,

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EMILE MARK DIXON ,
                                          Plaintiff-Appellant,
                     v.                                                                   No. 08-3510-cv

MICHAEL M. ZENK , et al.,
                                           Defendants-Appellees.
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FOR APPELLANT:                                                             Emile Mark Dixon, pro se, Inez, KY.

FOR APPELLEE:                                                              Gail A. Matthews, Assistant United States
                                                                           Attorney, (Benton J. Campbell, United
                                                                           States Attorney for the Eastern District
                                                                           of New York and Varuni Nelson,
                                                                           Assistant United States Attorney, of
                                                                           counsel), Brooklyn, NY.


       Appeal from a judgment of the United States District Court for the Eastern District of New
York (John Gleeson, Judge).

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    UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND
DECREED that the judgment of the district court be AFFIRMED.

         Appellant Emile Mark Dixon, pro se, appeals the from the June 17, 2008 judgment of the
District Court granting defendant Michael M. Zenk’s motion for summary judgment and dismissing
Dixon’s action filed pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388 (1971). On appeal, Dixon argues that (1) the District Court erred in granting summary
judgment because there was a question of material fact as to whether Zenk provided Dixon with
adequate procedural protections while in the Special Housing Unit (“SHU”); (2) the District Court
failed to give adequate deference to his pro se status; (3) the District Court erred in denying his motion
for appointment of counsel; and (4) the District Court erred in denying his discovery request. We
assume the parties’ familiarity with the underlying facts and the procedural history of the case.

        In his brief, Dixon fails to challenge the District Court’s dismissal of other claims and parties
prior to Zenk’s motion for summary judgment on the remaining claim. Although we “generally do not
hold pro se litigants rigidly to the formal briefing standards,” courts “need not manufacture claims of
error for an appellant proceeding pro se, especially when he has raised an issue below and elected not to
pursue it on appeal.” LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995). Accordingly, we
consider any challenges to the earlier dismissals abandoned.

        We review a district court’s decision to grant summary judgment de novo, drawing all factual
inferences in favor of the non-moving party. See, e.g., Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101,
107 (2d Cir. 2008). Summary judgment is appropriate only “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c). A genuine issue
of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         First, Dixon argues that the District Court erred in granting Zenk’s motion for summary
judgment because there was a genuine issue of material fact as to whether Dixon was afforded adequate
procedural protection of his due process rights. Along with his motion for summary judgment, Zenk
provided an extensive record of the prison’s compliance with the relevant regulations, which provide
adequate process under the circumstances of this case. To refute this record, Dixon argued, without
support, that the affidavits and exhibits supporting Zenk’s motion for summary judgment were
falsified. Dixon’s bald assertion of falsified affidavits and exhibits, however, is insufficient to overcome
a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). Accordingly, we
conclude that Dixon has failed to identify any genuine issue of material fact as to whether Dixon was
afforded adequate procedural protections, and, therefore, we conclude that the District Court did not
err in granting Zenk’s motion for summary judgment.

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         Next, Dixon argues that the District Court failed to give adequate deference to Dixon’s pro se
status. When a plaintiff is proceeding pro se, a court will broadly construe his motion papers and
interpret them to raise the strongest arguments that they suggest. Weixel v. Bd. of Educ. of the City of
N.Y., 287 F.3d 138, 146 (2d Cir. 2002). Pro se status, however, “does not relieve plaintiff of his duty to
meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony
Records, 351 F.3d 46, 50 (2d Cir. 2003). Here, the district court explicitly stated that it would, and
subsequently did, consider the allegations in both the complaint and in Dixon’s opposition in reaching
its conclusion on summary judgment. We therefore conclude that the District Court gave sufficient
deference to Dixon’s pro se status.

        Dixon also challenges the District Court’s denial of his request for appointment of counsel.
The District Court failed to consider on the record the factors set forth in Hodge v. Police Officers, 802
F.2d 58, 61-62 (2d Cir.1986), including the threshold question of whether Dixon’s claims had any
substantive merit. Assuming, but not deciding, that this was error, we decline to remand the case on
this basis because, after our independent review of the record, we conclude that Dixon should not
receive counsel, as his claim lacks substantive merit. Cf. Hendricks v. Coughlin, 114 F.3d 390, 393-94 (2d
Cir. 1997) (vacating the judgment and remanding the cause only after determining that plaintiff should
have received the assistance of counsel).

         Finally, Dixon argues that the District Court erred in denying his discovery request. On appeal,
however, Dixon fails to describe the discovery that he allegedly sought, how such discovery is material
to the issues in the instant appeal, and how such discovery would have changed the result reached by
the District Court. We decline to consider this vague and unsupported claim. See Norton v. Sam’s Club,
145 F.3d 114, 117 (2d Cir. 1998) (holding that “[i]ssues not sufficiently argued in [a] brief[] . . . will not
be addressed on appeal”).

                                       CONCLUSION
        For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.

                                                          FOR THE COURT:
                                                          Catherine O’Hagan Wolfe, Clerk

                                                          By: _______________________




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