    08-3595-cv
    Burgess v. Fairport Central School District



                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER
M UST 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 29th day of March, two thousand ten.

    PRESENT:
                ROSEMARY S. POOLER,
                DEBRA ANN LIVINGSTON,
                          Circuit Judges,
                DENNY CHIN,*
                          District Judge.
    __________________________________________

    Susan N. Burgess, Carmen Coleman,

                       Plaintiffs-Appellants,

                       v.                                            08-3595-cv

    Fairport Central School District, Board of
    Education of the Fairport Central School
    District, Kevin Ratcliffe, in his personal
    and official capacities, Goldstein, Ackerhalt
    & Pletcher, LLP, Jay C. Pletcher,

                Defendants-Appellees.
    __________________________________________




             *
           The Honorable Denny Chin, of the United States District Court for the Southern District
    of New York, sitting by designation.
FOR APPELLANTS:                Susan N. Burgess, pro se, Brockport, NY.

FOR APPELLEES:                 Frank W. Miller, East Syracuse, NY (for Fairport Central Sch.
                               Dist., Bd. of Ed. of Fairport Central Sch. Dist., and Kevin
                               Ratcliffe); Charles C. Swanekamp and Bradley A. Hoppe, Jaeckle
                               Fleischmann & Mugel, LLP for Goldstein, Ackerhalt & Pletcher,
                               and Jay C. Pletcher).


     Appeal from a judgment of the United States District Court for the Western District of
New York (Siragusa, J.).

    UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court be AFFIRMED.

         Appellants Susan N. Burgess and Carmen Coleman, pro se, appeal a judgment of the
United States District Court for the Western District of New York granting the Defendants’
motions for summary judgment, and dismissing their claims under 42 U.S.C. § 1983, 18 U.S.C. §
2520, the Fourth Amendment, and various state laws. On appeal, Appellants argue that the
district court erred by finding that there were no genuine issues of material fact, and by denying
their request for discovery. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the specification of the issues on appeal.

        We review a district court’s grant of summary judgment de novo and focus on whether
the court properly concluded that there was no genuine issue as to any material fact and the
moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson,
L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Republic Nat’l Bank v. Delta Airlines, 263 F.3d 42, 46
(2d Cir. 2001); Allstate Ins. Co. v. Mazzola, 175 F.3d 255, 258 (2d Cir. 1999). In determining
whether there are genuine issues of material fact, we are “required to resolve all ambiguities and
draw all permissible factual inferences in favor of the party against whom summary judgment is
sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotations omitted).

       After a thorough and exhaustive review of the record, we conclude that the district court
properly granted the Defendants’ motions for summary judgment. In their opposition to the
motions, the Appellants offered no specific facts supporting their allegations or disputing the
evidence submitted by the Defendants. Rather, they reiterated their unfounded suspicions that
the Defendants had used a “PDA” device to eavesdrop on their private communications, and
offered an alternative theory—unsupported by any facts—for how this could have been
accomplished.

        As the district court correctly held, these facts were insufficient to satisfy their burden of
opposing the Defendants’ motions. See Fed. R. Civ. P. 56(e) (a party opposing summary
judgment must “set out specific facts showing a genuine issue for trial”); Bickerstaff v. Vassar
Coll., 196 F.3d 435, 452 (2d Cir. 1999) (“Statements that are devoid of any specifics, but replete
with conclusions, are insufficient to defeat a properly supported motion for summary
judgment.”); Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996) (“[C]onclusory
statements, conjecture, or speculation by the party resisting the motion will not defeat summary

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judgment.”).

         In addition, the district court correctly denied the Appellants’ request for discovery prior
to its entry of summary judgment. We acknowledge that summary judgment is usually granted
only “after discovery” and if “the nonmoving party has failed to make a sufficient showing of an
essential element of [its] case with respect to which [it] has the burden of proof.” Hellerstrom v.
U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2001) (internal quotation marks
omitted). We review a denial of a request for additional discovery under Fed. R. Civ. P. 56(f) for
abuse of discretion. Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994).

        Apart from the fact the Appellants failed to properly file an affidavit pursuant to Fed. R.
Civ. P. 56(f) setting forth the essential facts they sought to discover, which itself is grounds for
the denial of such a request, see Paddington Partners, 34 F.3d at 1137, Appellants’ request was
based solely on conjecture and speculation. Appellants did not substantiate their general belief
that discovery would have produced facts relevant to their claims, and consequently, the district
court did not abuse its discretion in denying the request.

        We have considered all of the Appellants’ remaining claims of error and determined that
they are without merit.

       For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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