10-0908-pr
Webster v. Fischer


                           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 28th day of October, two thousand ten.

PRESENT:

            GUIDO CALABRESI
            DEBRA ANN LIVINGSTON,
                              Circuit Judges,
            PAUL A. CROTTY,
                              District Judge.*
__________________________________________

James Webster,
             Plaintiff-Appellant,

                     v.                                                     10-908-pr

Brian Fischer, et al.,
               Defendants-Appellees,
_______________________________

FOR APPELLANT:                   James Webster, pro se, Rome, NY.

FOR APPELLEES:                   Andrew Cuomo, Attorney General of the State of New York;
                                 Andrea Oser, Deputy Solicitor General; Andrew B. Ayers,
                                 Assistant Solicitor General, Albany, NY.




         *
         The Honorable Paul A. Crotty, Judge of the United States District Court for the Southern
District of New York, sitting by designation.
       Appeal from a judgment of the United States District Court for the Northern District of

New York (Kahn, J.).

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be AFFIRMED.

       Plaintiff-Appellant James Webster, proceeding pro se, appeals the judgment of the

district court granting defendants-appellees’ motion for summary judgment and dismissing his

complaint which raised claims pursuant to 42 U.S.C. § 1983 and alleged a series of violations of

his constitutional rights. Webster also challenges the lower court’s denial of his request to

conduct depositions and contends that the district court erred in failing to afford him sufficient

solicitude in light of his status as a pro se litigant. We presume the parties’ familiarity with the

underlying facts, the procedural history, and the issues on appeal.

       We review a grant of summary judgment de novo, and in so doing, we construe the

evidence in the light most favorable to the nonmoving party and draw all reasonable inferences

in that party’s favor. See Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 427

(2d Cir. 2009); Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007). Summary

judgment is warranted only where “there is no genuine issue as to any material fact and . . . the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Cordiano v.

Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009).

       Webster contends principally that the district court improperly resolved factual disputes

in granting summary judgment. We disagree. Based on an exhaustive review of the record, we

conclude, in accordance with the district court’s findings, that no issues of material fact remain

in dispute and that defendants are entitled to summary judgment for substantially the same



                                                  2
reasons set forth by the magistrate judge in his thorough and well-reasoned Report and

Recommendation. Indeed, contrary to Webster’s assertions on appeal, we are unable to discern

any factual disputes in the record that, if resolved in plaintiff’s favor, could establish that

defendants violated his constitutional rights.

        With respect to the discovery claim, we review a district court’s discovery orders for

abuse of discretion, see Ind. Order of Foresters v. Donald, Lufkin & Jenrette, Inc., 157 F.3d 933,

937 (2d Cir. 1998), and will reverse such a ruling only if “the action taken was improvident and

affected the substantial rights of the parties,” Goetz v. Crosson, 41 F.3d 800, 805 (2d Cir. 1994)

(internal quotations omitted). We find no such abuse of discretion here. In so concluding, we

note that nowhere – including before this Court – does Webster indicate, first, why the belatedly

requested depositions were not noticed or taken in a timely manner, and, second, how the

additional discovery would have been helpful, let alone necessary to his claims.

        Finally, we find no error in the district court’s handling of plaintiff’s pro se status.

Specifically, we note that, contrary to Webster’s arguments on appeal, the magistrate judge made

clear that he was affording Webster special solicitude in light of his pro se status and was

construing his filings accordingly.

        To the extent Webster’s appeal can be construed as raising other arguments, we have

considered them and find them to be without merit. Accordingly, for the foregoing reasons, the

judgment of the district court is hereby AFFIRMED.

                                                 FOR THE COURT:

                                                 Catherine O’Hagan Wolfe, Clerk




                                                   3
