By Ariel Shuster[1]
It is well settled that pro se litigants must be afforded special solicitude, which requires their filings to be liberally construed throughout all steps of civil litigation. This article summarizes relevant case law and procedural rules regarding (1) how special solicitude applies at key stages of civil litigation in the Northern District of New York,[2] (2) additional obligations that are imposed on a represented party because of the involvement of a pro se litigant, and (3) circumstances under which special solicitude can be revoked.
I. Basic Definition and Application of the Special Solicitude Standard in the Second Circuit
The Supreme Court of the United States stated that “pro se complaint[s], ‘however inartfully pleaded,’ [are] held to ‘less stringent standards than formal pleadings drafted by lawyers.”’[3] In applying this less stringent standard, the Second Circuit has instructed that such “special solicitude” amounts to a “liberal construction of pleadings, motion papers, and appellate briefs.”[4] This added protection is justified because “a pro se litigant generally lacks both legal training and experience and, accordingly, is likely to forfeit important rights through inadvertence.”[5] Application of the special solicitude standard is not limited to a specific procedural context; rather, “[t]he scope of the solicitude afforded may vary depending on the procedural context and the demands placed by that context upon the inexperienced litigant.”[6] However, regardless of the procedural backdrop or the pro se litigant’s experience, it is well settled that a pro se litigant is not exempted from following procedural rules, including a district court’s local rules of practice.[7] Some of the most frequent discussions concerning application of special solicitude relate to reviewing a pro se plaintiff’s complaint following a motion to dismiss or a motion for summary judgment and responses thereto.
II. Reviewing a Complaint on a Motion to Dismiss
In reviewing a pro se complaint, the Court will interpret the complaint “to raise the strongest claims that it suggests.”[8] However, the pro se plaintiff must still state a plausible claim for relief.[9] When reviewing a motion to dismiss a complaint for failure to state a claim under Federal Rule Civil Procedure (“Fed. R. Civ. P.”) 12(b)(6) between counseled parties, the Court is generally limited to considering “facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.”[10] Additionally, the Court may consider information or documents that are not incorporated by reference if “the complaint relies heavily upon its terms and effect, thereby rendering the document integral to the complaint.”[11] “Even where a document is integral to the complaint, it must be ‘clear’ that ‘no dispute exists regarding the authenticity or accuracy of the document’ and that ‘there exist no material disputed issues of fact regarding the relevance of the document.’”[11] This standard is relaxed slightly for pro se litigants, because for them, the Court can also consider documents submitted in a pro se party’s opposition to a motion to dismiss so long as the additional materials are consistent with the factual allegations made in the complaint.[13] The Second Circuit has affirmed district court decisions that looked to additional materials submitted in a pro se litigant’s opposition—which is generally not permitted where both parties are counseled.[14]
If “matters outside the pleadings are presented in response to a 12(b)(6) motion,” the Court “must either exclude the additional material and decide the motion on the complaint alone or convert the motion to one for summary judgment under Fed. R. Civ. P. 56 and afford all parties the opportunity to present supporting material.”[15] “This conversion requirement is strictly enforced whenever there is a ‘legitimate possibility’ that the district court relied on material outside the complaint in ruling on the motion.”[16]
In determining whether to convert a motion to dismiss into a motion for summary judgment, “the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties),” “(3) documents that, although not incorporated by reference, are ‘integral’ to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case.”[17] In a case involving a pro se litigant, this list then also includes matters stated in the pro se party’s opposition to a motion to dismiss that are consistent with the pro se plaintiff’s complaint.[18]
Practitioners should be cautious of submitting additional information that falls outside of the aforementioned categories in a motion to dismiss, or of a pro se plaintiff doing so, because the Court may then be obligated to convert the motion to dismiss into a motion for summary judgment. Counsel should consider addressing all of the documents submitted by a pro se plaintiff with their complaint and any additional information submitted in their opposition to a motion to dismiss, rather than only the information contained within the four corners of the complaint.
Should a pro se party submit additional information in their opposition, and the moving party wishes to file a reply brief, “[t]he moving party must file and serve its reply papers, which may not exceed (10) pages in length, no more than SEVEN (7) DAYS after service of the response papers, unless otherwise ordered by the Court.”[19] Should the non-moving party then wish to respond, Local Rules 7.1(a)(1) and 12.1(a)(1) do not permit a sur-reply. However, the Court has, on occasion, considered a pro se plaintiff’s arguments made in a sur-reply, despite the Local Rules, and because of special solicitude.[20]
III. Notice Requirements and Procedural Rules Concerning Motions for Summary Judgment
If counsel files a motion for summary judgment, Local Rule 56.2 requires the moving party to “inform the pro se litigant of the consequences of failing to respond to the summary judgment motion.” [21] The notice must alert “the pro se litigant that a motion for summary judgment seeks dismissal of some or all of the claims or defenses asserted in their complaint or answer and that the pro se litigant’s failure to respond to the motion may result in the Court entering a judgment against the pro se litigant.”[22] This rule is especially relevant should a party seek to convert a motion to dismiss into a motion for summary judgment or under the circumstances where such conversion is likely.
The Second Circuit has stated that “[o]rdinarily, formal notice is not required where a party ‘should reasonably have recognized the possibility that the motion might be converted into one for summary judgment [and] was [neither] taken by surprise [nor] deprived of a reasonable opportunity to meet facts outside the pleadings.’”[23] However, “[i]n the case of a pro se party [] [n]otice is particularly important because the pro se litigant may be unaware of the consequences of his failure to offer evidence bearing on triable issues.”[24] If the Court determines that it is appropriate to convert a motion to dismiss into a motion for summary judgment, “all parties are [to be] ‘given a reasonable opportunity to present all the material that is pertinent to the motion.’”[25] Specifically, a pro se plaintiff is entitled to (1) “an opportunity to take relevant discovery and to submit any evidence relevant to the issues raised by the motion, and” (2) “ an explanation of the consequence of a grant of summary judgment, as well as of what he could do to defeat the motion.”[26] The Court has denied a counseled motion for summary judgment where the defendants failed to provide the requisite notice to the pro se plaintiff.[27] The Court explained that “such notice is even more important than usual, under the circumstances, because [the d]efendants are requesting that their motion to dismiss be ‘converted’ to one for summary judgment,” “requiring that [the p]laintiff receive ‘unequivocal’ notice of the meaning and consequences of that conversion, so that he has a reasonable opportunity to offer evidence bearing on triable issues.”[28]
Interestingly, the Southern and Eastern Districts of New York have a local rule that requires “[a] represented party moving to dismiss or for judgment on the pleadings against a party proceeding pro se, who refers in support of the motion to matters outside the pleadings as described in Fed. R. Civ. P. 12(b) or 12(c),” to “serve and file the following notice with the full text of Fed. R. Civ. P. 56 attached at the time the motion is served.”[29] This allows for the possibility that those courts may convert a motion to dismiss into a motion for summary judgment without requiring additional notice to be provided to the pro se litigant and for the court to rule on the motion for summary judgment without allowing time for additional discovery.[30]
With regard to moving for summary judgment in the Northern District of New York, the Local Rules require the moving party to file a statement of material facts.[31] The opposing party must file a separate response to the statement of material facts.[32] Importantly, “[t]he Court may deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.”[33] It is often the situation that a pro se party does not, or does not sufficiently, abide by Local Rule 56.1(b) and submit a response to the counseled party’s statement of material facts.[34] However, “[i]t is well settled that a ‘district court has broad discretion to determine whether to overlook a party’s failure to comply with local rules.’”[35] Accordingly, there are some circumstances where the Court has chosen to look to the entire record to determine whether there was a dispute of material fact as opposed to relying on the pro se party’s failure to appropriately respond to the alleged facts of the case.[36] There is no apparent rule or specific set of circumstances outlined in the Northern District of New York to understand when the Court will review the entire record.
In those cases where the Court refuses to overlook a pro se party’s failure to follow the Local Rules and determines that the facts in the defendant’s statement of material facts are undisputed, the Court still analyzes the merits of the moving party’s arguments.[37] This is because “the district court may not grant the motion without first examining the moving party’s submissions to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.”[38] If the Court determines that it will not scour the entire record to determine whether a dispute of material fact exists, “the Court will not turn a blind eye to the citations that are plainly evident upon its review of the papers.”[39] Further, in the event that the pro se party is the moving party, and they have failed to submit a statement of material facts as mandated by Local Rule 56.1(a), the Court has, on occasion, declined to deny the motion on that ground in light of special solicitude.[40] On the other hand, there are cases in which the Court has denied a pro se plaintiff’s motion for summary judgment on the ground that he failed to submit a statement of material facts.[41] Because it is within a judge’s discretion to decide when to review the entire record or whether to grant or deny a pro se party’s motion on procedural grounds, it would be prudent for practitioners to present a thorough discussion of the entire record when moving for, or responding to a motion for, summary judgment involving a pro se litigant.
IV. Special Solicitude Can Be Revoked
Despite the mandate to afford pro se litigants special solicitude, this leniency can be revoked. The Second Circuit has explained that “district courts within this Circuit have developed a practice of withdrawing this solicitude if a pro se litigant is deemed to have become generally experienced in litigation through participation in a large number of previous legal actions[,]” and has “endorsed some limited forms of this practice[.]”[42] “The rationale for this revocation . . . (at least in the Second Circuit) is not that the pro se litigant should be punished but that his excessive litigiousness demonstrates his experience, the lack of which is the reason for conferring the special status upon pro se litigants in the first place.”[43] When determining whether a plaintiff’s special solicitude status should be revoked, courts consider “(1) the number of previous federal court actions filed, (2) the number of previous federal court appeals filed, (3) the number of previous state court actions filed, (4) the number of previous state court appeals filed, and (5) the recency or simultaneity of the actions and/or appeals.”[44] There is no magic number for when a pro se litigant has filed enough actions or appeals that revocation is appropriate.[45] The Court may also consider “the quality of the pro se litigant’s submissions to the Court (e.g., whether they are typed, cogent, supported by applicable affidavits, exhibits, and/or memoranda of law, etc), and whether or not the pro se litigant has been victorious (or partially victorious) in any of his previous actions or appeals.”[46]
The Second Circuit has suggested that revocation should be specific to the pro se litigant’s “experience with the particular procedural setting presented.”[47] For example, if a pro se plaintiff has filed numerous complaints and none of them have proceeded past the motion-to-dismiss stage, a court may decline to revoke special solicitude status in reviewing a motion for summary judgment because the litigant does not have any experience in that specific procedural context.[48] As Senior U.S. District Judge Thomas J. McAvoy has observed, “[C]ourts need not treat special status as an ‘all or nothing’ benefit but may confer special status to a semi-experienced pro se litigant on a ‘sliding scale,’ treating the litigant more leniently than represented litigants but not as leniently as wholly inexperienced pro se litigants.”[49] In line with this observation, the Second Circuit has stated that there is no “exhaustive list of the relevant considerations as to when and to what degree departure from the usual rule of special solicitude is appropriate.”[50] Accordingly, the Court will “exercise [its] discretion . . . to determine based on the totality of the relevant circumstances when the ordinary approach is not appropriate and what degree of solicitude, if any, should be afforded.”[51] In the event revocation might appear appropriate, practitioners should fully appreciate the Court’s required application of special solicitude to a pro se litigant’s filings and be mindful of the circumstances under which it can be revoked.
V. Conclusion
Pro se litigants must be afforded special solicitude, but this does not negate their obligation to abide by procedural and local rules. The degree of special solicitude granted to a pro se litigant can vary and it is a status that can be taken away. Practitioners should be acquainted with their additional responsibilities in dealing with a pro se party, of how the Northern District will treat pro se filings at key stages of litigation, and how it may affect resolution of their motions and responses.
[1] Ariel Shuster is the term law clerk to a United States magistrate judge in the United States District Court for the Northern District of New York. This article is intended to be informational and does not express any views of the United States District Court for the Northern District of New York.
[2] Throughout the article, the Northern District of New York will be referred to as “the Court.”
[3] Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)).
[4] Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam).
[5] Tracy, 623 F.3d at 101; see also McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988) (“[P]ro se litigants may in general deserve more lenient treatment than those represented by counsel.”).
[6] Tracy, 623 F.3d at 102.
[7] Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (internal citation omitted) (“While the right ‘does not exempt a party from compliance with relevant rules of procedural and substantive law,’ it should not be impaired by harsh application of technical rules.”); see also Barber v. New York, No. 1:13-CV-0331 (NAM/RFT), 2013 WL 2636206, at *2 (N.D.N.Y. June 11, 2013) (“While recognizing that [the p]laintiff is proceeding pro se, thus requiring this Court to treat the pleading with a certain degree of liberality, the inescapable fact remains that the Complaint is wholly insufficient to state any plausible claim for relief or to allow a defendant to make a reasonable response.”); accord Canning v. Veitch, No. 1:15-CV-1214 (DNH/DJS), 2015 WL 7444260, at *1-2 (N.D.N.Y. Oct. 16, 2015), report and recommendation adopted, 2015 WL 7432376 (N.D.N.Y. Nov. 23, 2015).
[8] Reppert v. New York State Dep’t of State, No. 1:19-CV-01518 (BKS/CFH), 2022 WL 2315603, at *5 (N.D.N.Y. June 28, 2022) (quoting Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013)).
[9] Id. (citation omitted).
[10] Wellington v. Empower Fed. Credit Union, 533 F. Supp. 3d 64, 68 (N.D.N.Y. 2021) (quoting Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 691 (S.D.N.Y. 2011)); see also Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).
[11] Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016) (citations and quotation marks omitted); see also Wellington, 533 F. Supp. 3d at 68 (quoting Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016)).
[12] Doe v. Syracuse Univ., No. 5:18-CV-1100 (BKS/TWD), 2022 WL 798058, at *5 (N.D.N.Y. Mar. 16, 2022) (quoting Nicosia, 834 F.3d at 230) (deciding whether to consider additional materials submitted by counseled defendants in their motion and by a pro se plaintiff in her opposition).
[13] Crum v. Dodrill, 562 F. Supp. 2d 366, 373 (N.D.N.Y. 2008) (“[T]he mandate to read the papers of pro se litigants generously makes it appropriate to consider a plaintiff’s papers in opposition to a defendant’s motion to dismiss as effectively amending the allegations of the plaintiff’s complaint, to the extent that those factual assertions are consistent with the allegations of the plaintiff’s complaint.”); see also Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004), vacated in part on other grounds, 317 F. Supp. 2d 160 (N.D.N.Y. 2004); Jackson v. Onondaga County., 549 F. Supp. 2d 204, 219 (N.D.N.Y. 2008); Standley v. Dennison, No. 9:05-CV-1033 (GLS/GHL), 2007 WL 2406909, at *12, n.66 (N.D.N.Y. Aug. 21, 2007).
[14] Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (citing Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering a pro se plaintiff’s affidavit in opposition to a motion to dismiss in addition to those in the complaint)). (“A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.”); see also ASTI Communications, Inc. v. The Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (The Court may also consider documents “possessed by or known to the plaintiff and upon which [he] relied in bringing the suit.”).
[15] Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000) (quoting Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988)) (quotation marks omitted).
[16] Id. (quoting Amaker v. Weiner, 179 F.3d 48, 50 (2d Cir. 1999)).
[17] Parfitt Way Mgmt. Corp. v. GSM by Nomad, LLC, No. 8:17-CV-0299 (GTS/CFH), 2018 WL 3118264, at *4 (N.D.N.Y. June 25, 2018).
[18] Pierce v. Monell, No. 9:06-CV-1290 (LEK/GHL), 2007 WL 2847317, at *5 (N.D.N.Y. Sept. 26, 2007); Wilcox v. Auburn Corr. Facility, No. 9:19-CV-0715 (LEK/DJS), 2019 WL 5968102, at *5 (N.D.N.Y. Oct. 1, 2019) (citing Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)), report and recommendation adopted, 2019 WL 5964538 (N.D.N.Y. Nov. 13, 2019).
[19] L.R. 12.1(a)(1); see also L.R. 7.1(a)(1).
[20] Jones v. Smith, No. 9:13-CV-1004 (GTS/DEP), 2015 WL 1414511, at *8, n.2 (N.D.N.Y. Mar. 27, 2015); Hughes v. Butt, No. 9:17-CV-1151 (DNH/ML), 2019 WL 6970794, at *5, n.3 (N.D.N.Y. Sept. 17, 2019), report and recommendation adopted, 2019 WL 6914776 (N.D.N.Y. Dec. 19, 2019); Crum, 562 F. Supp. 2d at 378; Vazquez v. Dollar General Corp., No. 1:21-CV-00330 (BKS/CFH), 2021 WL 4407817, at *1, n.2 (N.D.N.Y. Sept. 27, 2021), motion for relief from judgment denied, 2022 WL 279560 (N.D.N.Y. Jan. 31, 2022), appeal dismissed, No. 22-408, 2022 WL 3703330 (2d Cir. July 5, 2022). But see Shomo v. New York Dep’t of Corr. Servs., No. 9:04-CV-0910, 2007 WL 2580509, at *5 (N.D.N.Y. Sept. 4, 2007) (citations omitted) (“[The p]laintiff has requested to file a sur-reply with regard to [the d]efendants’ motions. The State [d]efendants have opposed that request. In light of the Local Rule generally prohibiting the filing of sur-replies, the minimal value of [the p]laintiff’s sur-reply, and the revocation of [the p]laintiff’s special status as a pro se civil rights litigant, I deny [the p]laintiff’s request.”); Solomon v. Hum. Servs. Coal. of Tompkins Cnty. Inc., No. 5:11-CV-226 (GTS/ATB), 2012 WL 3996875, at *4 (N.D.N.Y. Sept. 11, 2012) (declining to consider pro se sur-reply because she did not request leave from the Court, the sur-reply would not be useful, and “she was afforded more than adequate opportunity to brief the issues . . . through the filing of her 47–page opposition memorandum of law.”).
[21] L.R. 56.2.
[22] Id. The Court provides an example notice on the Court’s website. See https://www.nynd.uscourts.gov/forms/notification-failure-respond-summary-judgment-motion.
[23] Hernandez v. Coffey, 582 F.3d 303, 307 (2d Cir. 2009) (quoting Villante v. Dep’t of Corrections of City of New York, 786 F.2d 516, 521 (2d Cir. 1986)).
[24] Id. (quoting Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983)) (quotation marks omitted).
[25] Keyes v. Ayco Co., L.P., No. 1:17-CV-00955 (BKS/DJS), 2018 WL 9989653, at *4 (N.D.N.Y. May 14, 2018) (quoting Fed. R. Civ. P. 12(d)).
[26] Hernandez, 582 F.3d at 309.
[27] Bridgeforth v. Popovics, No. 8:09-CV-0545 (GTS/RFT), 2011 WL 2133661, at *14 (N.D.N.Y. May 25, 2011).
[28] Id. (quoting Hernandez, 582 F.3d at 307-08).
[29] S.D.N.Y. Local Rule 12.1; E.D.N.Y. Local Rule 12.1.
[30] Fernandez v. City of New York, No. 1:19-CV-04021 (MKV), 2020 WL 4605238, at *3-4 (S.D.N.Y. Aug. 11, 2020) (citations omitted) (“[T]he [d]efendants were given leave in this case to file a motion ‘pursuant to Rule 12(c) of the Federal Rules of Civil Procedure that is limited to the question of whether [the p]laintiff released the claims he asserts in the present suit.’ However, [the d]efendants filed a Motion for Summary Judgment, because the documents on which they sought to rely (i.e. the 2019 Releases) were outside the pleadings in this case. . . . While not a notice pursuant to Local Rule 12.1, which informs a pro se party specifically about the possibility of conversion to a motion for summary judgment, the Local Rule 56.2 Notice includes the same information about what is necessary to oppose a summary judgment motion and provides a full copy of Federal Rule of Civil Procedure 56. . . . Importantly, [the p]laintiff’s filings appear to confirm that he was aware of the heightened requirements for summary judgment motions, given that he requested an extension of time to respond in order to ‘get everything I need on my behalf to defend my self [sic].’ Despite that [the p]laintiff has not submitted any materials outside the pleadings, he did respond to the [the d]efendants’ Local Rule 56.1 Statement and had notice of the [the d]efendants’ intent to submit a summary judgment motion and what that means.”); see also Mateo v. Alexander, No. 08-CV-8797 (RJH/DCF), 2010 WL 431718, at *2 (S.D.N.Y. Feb. 9, 2010) (“Formal notice to the parties is unnecessary here: [the] defendants attached as exhibits to their motion the records they have of [the plaintiff’s] grievances. They also notified [the plaintiff] that the Court might choose to treat the motion as one for summary judgment, and that to oppose it, [the plaintiff] would need to submit evidence, such as affidavits. All parties were on notice of the possibility of conversion.”); Sollazzo v. Rest., No. 15-CV-0252 (ER), 2016 WL 1071031, at *4 (S.D.N.Y. Mar. 17, 2016) (“[The d]efendant’s notice of motion to dismiss followed the requirements of Local Rule 12.1 by providing [the p]laintiff with the text of Rule 56, provided sufficient notice that his motion may be converted to a motion for summary judgment, and the consequences of such a conversion. Accordingly, this Court converts the [d]efendant’s motion to dismiss into a motion for summary judgment.”); Buculei v. United States, No. 04-CV-4503(NG/LB), 2006 WL 1581415, at *7 (E.D.N.Y. June 2, 2006) (“While these arguments, supported by [a] declaration, might have succeeded on a motion for summary judgment pursuant to Fed. R. Civ. P. 56, the government did not supply the notice required pursuant to Local Civil Rules 12.1 and 56.2. . . . [T]he Court cannot consider matters outside the pleadings on a Rule 12(b)(6) motion, and it cannot convert a motion to dismiss for failure to state a claim to a Rule 56 motion for summary judgment without the requisite notice. Since no such notice was given, the facts averred in [the] declaration may not be considered as to the items the government acknowledged it retained.”).
[31] L.R. 56.1(a).
[32] L.R. 56.1(b).
[33] Id.
[34] See, e.g., Bennett v. Fletcher, No. 9:17-CV-849 (GTS/CFH), 2020 WL 872491, at *4, n.9 (N.D.N.Y. Jan. 16, 2020), report and recommendation adopted sub nom. Bennett v. Jiguere, 2020 WL 871156 (N.D.N.Y. Feb. 21, 2020); Kiernozek v. New York State Dep’t of Tax’n & Fin., No. 1:14-CV-0481 (BKS/CFH), 2017 WL 5468321, at *2 (N.D.N.Y. Mar. 10, 2017); Wasiluk v. City of Oneida, New York, No. 5:19-CV-280 (TJM), 2021 WL 4123836, at *1-2 (N.D.N.Y. Sept. 9, 2021); Kaminski v. City of Utica, No. 9:10-CV-0895 (TJM/DEP), 2012 WL 4486074, at *6-7 (N.D.N.Y. June 28, 2012), report and recommendation adopted, 2012 WL 4486071 (N.D.N.Y. Sept. 27, 2012); Wilson v. Annucci, No. 9:18-CV-0391 (LEK/TWD), 2020 WL 1979210, at *4 (N.D.N.Y. Apr. 23, 2020), report and recommendation adopted, 2020 WL 5229375 (N.D.N.Y. Sept. 2, 2020).
[35] Horanzy v. Vemma Nutrition Co., 87 F. Supp. 3d 341, 345 (N.D.N.Y. 2015) (quoting D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 108 n.2 (2d Cir. 2006)).
[36] Cruz v. Church, No. 9:05-CV-1067 (GTS/DEP), 2008 WL 4891165, at *3, n.2-4 (N.D.N.Y. Nov. 10, 2008) (collecting cases which have “overlook[ed] a violation” of the Local Rules and those that have refused to overlook such a violation); Hill v. McGrath, No. 9:18-CV-1203 (DNH/TWD), 2021 WL 4255040, at *4 (N.D.N.Y. Aug. 10, 2021 (opting to review the record), report and recommendation adopted, 2021 WL 4243420 (N.D.N.Y. Sept. 17, 2021); Ruggia v. Kozak, No. 9:05-CV-0217 (LEK), 2008 WL 541290, at *17 (N.D.N.Y. Feb. 25, 2008) (same); Shomo v. New York Dep’t of Corr. Servs., No. 9:04-CV-0910, 2007 WL 2580509, at *12 (N.D.N.Y. Sept. 4, 2007) (exercising discretion to refuse “to sua sponte scour the record (beyond the review I have already performed) for evidence disputing the State Defendants’ factual assertions.)”); Vasquez v. Russell, No. 9:16-CV-0623 (LEK/DJS), 2018 WL 4521203, at *1 (N.D.N.Y. Sept. 21, 2018) (rejecting the defendants’ objection to the magistrate judge’s decision to “review the entire summary judgment record in order to ascertain the undisputed material facts.”).
[37] Cusamano v. Sobek, 604 F. Supp. 2d 416, 475 (N.D.N.Y. 2009) (declining “to engage in the sua sponte comparison of unmatching factual assertions contained in [the p]laintiff’s Rule 7.1 Response, and scouring of the record, that would be necessary to determine if the record contains admissible evidence creating an issue of fact regarding each of the assertions made by [the d]efendants[]” but addressing the merits of the defendants’ motion); Murray v. Palmer, No. 9:03-CV-1010 (DNH/GLS), 2008 WL 2522324, at *20 (N.D.N.Y. June 20, 2008) (“I decline to sua sponte scour the lengthy record for proof of a triable issue of fact regarding exhaustion, I have, while deciding the many issues presented by [the d]efendants’ motion, had occasion to review in detail many portions of the record. In so doing, I have discovered evidence that I believe is sufficient to create a triable issue of fact on exhaustion[]” and proceeding to address the merits of the defendants’ motion); Danford v. City of Syracuse, No. 5:09-CV-0307 (GTS/ATB), 2012 WL 4006240, at *2 (N.D.N.Y. Sept. 12, 2012) (declining to scour the record but reviewing the merits of the defendants’ motion).
[38] Vermont Teddy Bear Co., Inc. v. 1–800 Bear gram Co., 373 F.3d 241, 244 (2d. Cir. 2004) (quoting Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001)) (quotation marks omitted).
[39] Robert H. L., Inc. v. Woodbine Bus. Park, Inc., No. 5:13-CV-1393 (GTS/DEP), 2018 WL 851382, at *2 (N.D.N.Y. Feb. 12, 2018); accord Allen v. County. of Cayuga, No. 9:17-CV-0018 (MAD/TWD), 2018 WL 11469532, at *8 (N.D.N.Y. June 25, 2018), report and recommendation adopted, 2018 WL 11469516 (N.D.N.Y. Aug. 13, 2018); Toscano v. Petsmart, Inc., No. 1:16-CV-0587 (GTS/CFH), 2018 WL 813633, at *1 (N.D.N.Y. Feb. 9, 2018); Burgess v. County. of Rensselaer, No. 1:03-CV-00652 (NPM/RFT), 2006 WL 3729750, at *1 (N.D.N.Y. Dec. 18, 2006); Gantt v. Mielenz, No. 9:10-CV-0083 (GTS/TWD), 2012 WL 4033723, at *3 (N.D.N.Y. Sept. 12, 2012).
[40] Rawls v. Rosenfield, No. 9:16-CV-0582 (LEK/CFH), 2017 WL 7050648, at *4 (N.D.N.Y. Nov. 28, 2017) (citing Bulter v. Hyde, No. 9:08-CV-0299 (LEK/GHL), 2009 WL 3164753, at *3 (N.D.N.Y. Sept. 29, 2009); Johnson v. Lew, No. 1:13-CV-1072 (GTS/CFH), 2017 WL 3822047, at *2 (N.D.N.Y. Aug. 30, 2017)), report and recommendation adopted, 2018 WL 542249 (N.D.N.Y. Jan. 23, 2018).
[41] A’Gard v. Locke, No. 9:14-CV-0613 (GTS/DEP), 2016 WL 8735653, at *4 (N.D.N.Y. June 24, 2016) (citing Riley v. Town of Bethlehem, 5 F. Supp. 2d 92, 93 (N.D.N.Y. 1998)); see also Reed v. McGrath, No. 9:19-CV-1203 (GTS/TWD), 2021 WL 6750625, at *3-5 (N.D.N.Y. Dec. 22, 2021) (recommending denying the pro se plaintiff’s motion for summary judgment because he failed to submit a statement of materials fact, but alternatively addressing the merits of the plaintiff’s motion, and of the defendants’ motion for summary judgment), report and recommendation adopted, 2022 WL 252170 (N.D.N.Y. Jan. 27, 2022); La Grande v. Town Of Bethlehem Police Dep’t, No. 1:08-CV-0738 (LEK/DRH), 2009 WL 2868231, at *3 (N.D.N.Y. Sept. 1, 2009).
[41] Tracy, 623 F.3d at 101 (citing Zimmerman v. Burge, No. 06-CV-0176, 2008 WL 850677, at *9-10 (N.D.N.Y. Mar. 28, 2008) (collecting cases)); Edwards v. Selsky, No. 9:04-CV-1054, 2007 WL 748442, at *2-3 (N.D.N.Y. Mar. 6, 2007) (same); Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994)).
[42] Rolle v. Garcia, No. 9:04-CV-0312 (LEK), 2007 WL 672679, at *4 (N.D.N.Y. Feb. 28, 2007); accord Eady v. Lappin, No. 9:05-CV-0824 (NAM), 2007 WL 1531879, at *4 (N.D.N.Y. May 22, 2007).
[44] Flemming v. Santamore, No. 9:15-CV-29 (DNH/CFH), 2015 WL 6394560, at *3 (N.D.N.Y. Oct. 21, 2015) (quoting Standley v. Dennison, No. 9:05-CV-1033 (GLS/GHL), 2007 WL 2406909, at *7 (N.D.N.Y. Aug. 21, 2007)).
[45] Edwards v. Selsky, No. 9:04-CV-1054 (NAM), 2007 WL 748442, at *3 (N.D.N.Y. Mar. 6, 2007) (collecting cases) (footnotes omitted) (“There is, of course, no formula for determining ‘How many is too many?’ However, generally, if a pro se litigant has filed a dozen or more actions and/or appeals before the date of the decision in question, it is quite possible that he will be deemed to be ‘experienced.’ Granted, there are some cases revoking the special status of a pro se litigant who has filed fewer than a dozen cases. However, there appear to be more cases refusing to revoke the special status of a pro se litigant who has filed fewer than a dozen cases.”)
[46] Id. (footnote omitted).
[47] Sledge v. Kooi, 564 F.3d 105, 109 (2d Cir. 2009) (per curiam).
[48] Flemming, 2015 WL 6394560, at *4 (citation omitted) (determining that the plaintiff’s “status should be diminished only in the pleading stage of litigation in this action, given that he has rarely made it past the pleading stage in most of his actions, but has commenced nearly sixty civil rights actions in the Second Circuit.”).
[49] Muniz v. Goord, No. 9:04-CV-0479, 2007 WL 2027912, at *6, n.30 (N.D.N.Y. July 11, 2007) (quoting Kilkenny v. Greenberg Traurig, LLP, No. 05-CV-6578 (NRB), 2006 WL 1096830, at *5 (S.D.N.Y. Apr. 26, 2006)); citing Holsey v. Bass, 519 F. Supp. 395, 407 n.27 (D. Md. 1981); Julie M. Bradlow, Procedural Due Process Rights of Pro se Civil Litigants, 55 U. CHI. L. REV. 659, 660 (Spring 1988)).
[50] Tracy, 623 F.3d at 102.
[51] Id.