21-3155
`Kennedy v. Hirsch
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`SUMMARY ORDER
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`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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the
`City of New York, on the 20th day of March, two thousand twenty-three.
`
`PRESENT:
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`v.
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`No. 21-3155
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`
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`CARMINA HIRSCH, née Tessitore, individual
`capacity, FREDERICK CARUSO, FREDERICK
`HINE, TOWN OF FAIRFIELD, CONNECTICUT,
`Defendants-Appellees. *
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`
`
`_____________________________________
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`
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`* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
`
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`RICHARD C. WESLEY,
`RICHARD J. SULLIVAN,
`JOSEPH F. BIANCO,
`Circuit Judges.
`_____________________________________
`JAMES KENNEDY, BESA KENNEDY,
`Plaintiffs-Appellants,
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`Kennedy v. Hirsch
`
`
`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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the
`City of New York, on the 20th day of March, two thousand twenty-three.
`
`PRESENT:
`
`
`
`v.
`
`No. 21-3155
`
`
`
`
`CARMINA HIRSCH, née Tessitore, individual
`capacity, FREDERICK CARUSO, FREDERICK
`HINE, TOWN OF FAIRFIELD, CONNECTICUT,
`Defendants-Appellees. *
`
`
`
`_____________________________________
`
`
`
`
`* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
`
`
`RICHARD C. WESLEY,
`RICHARD J. SULLIVAN,
`JOSEPH F. BIANCO,
`Circuit Judges.
`_____________________________________
`JAMES KENNEDY, BESA KENNEDY,
`Plaintiffs-Appellants,
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`For Plaintiffs-Appellants:
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`James Kennedy, Besa Kennedy, pro
`se, Farmington, CT.
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`For Defendant-Appellee Carmina
`Hirsch:
`
`CRISTIN E. SHEEHAN, Morrison
`Mahoney LLP, Hartford, CT.
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`For Defendants-Appellees Frederick
`Caruso, Frederick Hine, Town of
`Fairfield, Connecticut:
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`ALAN R. DEMBICZAK, Howd &
`Ludorf, LLC, Hartford, CT.
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`Appeal from a judgment of the United States District Court for the District
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`of Connecticut (Vanessa Lynne Bryant, Judge).
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`UPON DUE CONSIDERATION,
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`IT
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`IS HEREBY ORDERED,
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`ADJUDGED, AND DECREED that the judgment of the district court is
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`AFFIRMED.
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`James and Besa Kennedy, proceeding pro se, appeal from the district court’s
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`grant of summary judgment in favor of Detective Sergeant Frederick Hine,
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`Detective Frederick Caruso, guardian ad litem Carmina Hirsch, and the Town of
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`Fairfield, Connecticut (the “Town”) on the Kennedys’ federal civil-rights claims
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`and assorted state-law claims. Specifically, the Kennedys alleged that Hirsch and
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`Caruso conspired to draft and send a false incident report to the Family Court
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`overseeing the custody dispute between Mr. Kennedy and his ex-wife; they also
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`alleged that Hine negligently supervised Caruso and that the Town was
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`vicariously liable for the conduct of Caruso and Hine. We review a district
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`court’s “grant of summary judgment de novo, examining the evidence in the light
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`most favorable to, and drawing all [reasonable] inferences in favor of, the
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`non-movant.” Sullivan-Mestecky v. Verizon Commc’ns Inc., 961 F.3d 91, 97 (2d Cir.
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`2020) (internal quotation marks omitted). We assume the parties’ familiarity
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`with the underlying facts, procedural history, and issues on appeal.
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`As a preliminary matter, the Kennedys argue that the district court erred in
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`finding that they improperly objected to the factual assertions set forth in
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`Defendants’ statement of undisputed material facts. We disagree. Under the
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`District of Connecticut’s Local Rules, a party opposing a motion for summary
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`judgment must provide “a specific citation” to “the affidavit of a witness
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`competent to testify as to the facts at trial, or [] other evidence that would be
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`admissible at trial.” D. Conn. L. Civ. R. 56(a)3. “Failure to provide specific
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`citations to evidence in the record as required by this Local Rule may result in the
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`Court deeming admitted certain facts that are supported by the evidence in
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`accordance with Local Rule 56(a)1, or . . . an order granting the motion [for
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`summary judgment] if the motion and supporting materials show that the movant
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`is entitled to judgment as a matter of law.” Id.; see also Fed. R. Civ. P. 56(e) (“If a
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`party fails to properly support an assertion of fact or fails to properly address
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`another party’s assertion of fact as required by Rule 56(c), the court may . . .
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`consider the fact undisputed for purposes of the motion [or] grant summary
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`judgment if the motion and supporting materials – including the facts considered
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`undisputed – show that the movant is entitled to it.”) We are to afford
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`“considerable deference” to a district court’s interpretation and application of its
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`local rules. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995).
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`Here, the district court combed through the Kennedys’ two Local Rule
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`56(a)2 statements and found that “at multiple points” the Kennedys “simply
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`state[d] ‘objection’ but provide[d] no basis for the objection, nor d[id] [they] cite to
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`anything in the record establishing the basis for [the] objection.” Sp. App’x at 7.
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`We agree with the district court that the Kennedys’ bareboned assertions and
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`boilerplate objections without citations to the record were inadequate under the
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`district’s Local Rules. Accordingly, we decline to disturb the district court’s
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`rulings.
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`The Kennedys next argue that, as pro se litigants, they were entitled to
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`amend their complaint “at least once” before their claims were dismissed.
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`Kennedy Br. at 10 (internal quotation marks omitted). But even if we put aside
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`the fact that Mr. Kennedy is a licensed attorney who is not entitled to the solicitude
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`afforded to ordinary pro se litigants, see Tracy v. Freshwater, 623 F.3d 90, 102 (2d
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`Cir. 2010), the record is clear that the Kennedys did in fact amend their complaint
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`“at least once.” Of course, the more glaring problem with this argument is that
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`the district court granted summary judgment in favor of Defendants not because
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`of any deficiencies in the Kennedys’ pleadings, but because the Kennedys failed to
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`offer evidence establishing elements of their claims. The Kennedys offer no
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`explanation as to what an amended pleading would look like, much less how it
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`would affect the sufficiency of the evidence required to withstand Defendants’
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`motion for summary judgment. Accordingly, the district court did not err in
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`failing to sua sponte provide the Kennedys with yet another opportunity to amend
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`their complaint. See Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (concluding
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`that “no court can be said to have erred in failing to grant a request [for leave to
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`amend] that was not made,” especially when the plaintiff has provided no
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`“indication that [he] could – or would – provide additional allegations that might
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`lead to a different result”); see also Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110
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`(2d Cir. 2001) (affirming district-court decision that “it would be futile to allow
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`[Plaintiff] to amend his complaint because the proposed claim . . . could not
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`withstand an inevitable motion for summary judgment”).
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`Turning to the merits of the district court’s summary-judgment ruling, the
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`Kennedys offer a grab bag of arguments challenging the district court’s finding
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`that there were no issues of material fact as to their claims. Again, we disagree.
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`First, the Kennedys dispute the district court’s conclusion that Hirsch was
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`not a state actor, noting that the court had previously determined that the
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`complaint sufficiently alleged a conspiracy between Hirsch and Detective Caruso.
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`But this argument ignores the fundamental difference between the standards that
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`apply with respect to a motion to dismiss and those that apply to a motion for
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`summary judgment. Compare Concord Assocs., L.P. v. Ent. Props. Tr., 817 F.3d 46,
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`52 (2d Cir. 2016) (“To survive a motion to dismiss, a complaint must contain
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`sufficient factual matter, accepted as true, to state a claim to relief that is plausible
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`on its face.” (internal quotation marks omitted)), with D’Amico v. City of New York,
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`132 F.3d 145, 149 (2d Cir. 1998) (“[S]ummary judgment is appropriate where there
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`exists no genuine issue of material fact and, based on the undisputed facts, the
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`moving party is entitled to judgment as a matter of law.”). There was therefore
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`no contradiction between the district court’s initial determination that the
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`complaint sufficiently alleged a conspiracy and its later conclusion, made after
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`reviewing the evidence at the summary-judgment stage, that no reasonable jury
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`could find for the Kennedys on that claim. See Maraschiello v. City of Buffalo Police
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`Dep’t, 709 F.3d 87, 97 (2d Cir. 2013) (holding that law of the case doctrine does not
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`bar a district court from “granting summary judgment based on evidence after
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`denying a motion to dismiss based only on the plaintiff’s allegations”).
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`Second, the Kennedys argue that, with regard to their stigma-plus claim, the
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`district court “improperly weighed the evidence in determining [that their]
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`custodial rights were not altered.” Kennedy Br. at 14–15. A stigma-plus claim
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`requires that a plaintiff show “(1) the utterance of a statement sufficiently
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`derogatory to injure his or her reputation, that is capable of being proved false,
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`and that he or she claims is false, and (2) a material state-imposed burden or state-
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`imposed alteration of the plaintiff’s status or rights.” Sadallah v. City of Utica, 383
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`F.3d 34, 38 (2d Cir. 2004) (internal quotation marks omitted). Additionally, the
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`“stigma” and “plus” must be “sufficiently proximate,” a requirement that is
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`satisfied “where (1) the stigma and plus would, to a reasonable observer, appear
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`connected – for example, due to their order of occurrence or their origin – and
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`(2) the actor imposing the plus adopted (explicitly or implicitly) those statements
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`in doing so.” Velez v. Levy, 401 F.3d 75, 89 (2d Cir. 2005) (citations omitted).
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`Here, the Kennedys presented no evidence of a connection between the
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`alleged false statement – the contents of the incident report – and the alleged
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`alteration of rights that occurred in the Family Court and at the Kennedy children’s
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`school. Regarding the Family Court decision, the evidence revealed that the
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`court did not receive the incident report until after it decided to hold the ex parte
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`order in abeyance. Similarly, with regard to the Tennessee school officials’
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`decision to release the children to their mother instead of Mr. Kennedy, there was
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`no evidence that the school officials relied on the incident report or even knew
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`about it at the time they permitted the children to leave with Mr. Kennedy’s ex-
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`wife. We therefore agree with the district court that summary judgment on the
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`stigma-plus claim was appropriate.
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`Third, the Kennedys insist that the incident report caused them to be
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`deprived of their right to familial association. Although a parent may bring “a
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`claim under the Due Process Clause for infringement of the right to familial
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`associations” where state actors “specifically intended to interfere with the family
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`relationship,” see Gorman v. Rensselaer Cnty., 910 F.3d 40, 47–48 (2d Cir. 2018), such
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`a claim may not proceed unless the plaintiff can show “that the defendant caused
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`the plaintiff to be deprived” of that right, Back v. Hastings On Hudson Union Free
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`Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (emphasis added). Once again, because
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`the Family Court and Tennessee school officials did not have the incident report
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`prior to making their respective decisions, there can be “no genuine dispute as to
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`whether the Incident Report caused the deprivation of [the Kennedys’] right to
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`familial association.” Sp. App’x at 36.
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`Fourth, the Kennedys challenge the district court’s conclusion that they
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`presented no evidence of improper motive or concrete harm in connection with
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`their First Amendment retaliation claim. Where – as here – a private citizen
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`brings a First Amendment claim, a plaintiff must show that retaliation was caused
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`by the plaintiff’s exercise of an interest protected by the First Amendment. Curley
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`v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001); see also Beechwood Restorative Care
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`Ctr. v. Leeds, 436 F.3d 147, 152 (2d Cir. 2006). But once again, the Kennedys have
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`offered no evidence establishing a causal connection between the drafting and
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`publishing of the incident report and the alleged concrete harm – in this case, the
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`denial of custody to the Kennedys.
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`We have considered the Kennedys’ remaining arguments and found them
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`to be without merit. Accordingly, we AFFIRM the judgment of the district court.
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`FOR THE COURT:
`Catherine O=Hagan Wolfe, Clerk of Court
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