Ajai BHATIA, Plaintiff-Appellant, v. CITY OF SHELTON, Shelton Police Dept., Ben Trabka, Defendants-Appellees, 362 F. App'x 220

PRESENT: ROBERT D. SACK, ROBERT A. KATZMANN, Circuit Judges and RICHARD J. SULLIVAN, District Judge.

SUMMARY ORDER Plaintiff-Appellant Ajai Bhatia, appeals pro se from a June 12, 2008 order of the district court dismissing his complaint alleging false arrest, false imprisonment, malicious prosecution, and abuse of process claims under 42 U.S.C. § 1983 and the First, Fourth, Ninth, and Fourteenth Amendments and granting

summary judgment to the Defendants-Appellees. We assume the parties’ familiarity with the facts and procedural history of the case. This Court reviews orders granting

summary judgment de novo and determines whether the district court properly concluded there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202-03 (2d Cir.1995). This Court requires that either the moving party or the district court provide a pro se litigant with notice of the nature and consequences of

summary judgment “because the pro se litigant ‘may be unaware of the consequences of his failure to offer evidence bearing on triable issues.’ ” Hernandez v. Coffey, 582 F.3d 303, 307 (2d Cir.2009) (quoting Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir.1983)). “[T]he failure of a district court to apprise pro se litigants of the consequences of failing to respond to a motion for

summary judgment is ordinarily grounds for reversal.” Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir.1999). Where the proper notice has not been given, the question is “whether from all of the circumstances, including the papers filed by the pro se litigant, it is reasonably apparent that the litigant understood the nature of the adversary’s

summary judgment motion and the consequences of not properly opposing it.” Sawyer v. Am. Fed’n of Gov’t Employees, 180 F.3d 31, 35 (2d Cir.1999) (discussing Vital, 168 F.3d at 621). The failure to provide notice is considered harmless where the pro se litigant’s subsequent actions demonstrate an understanding of the procedure for

summary judgment motions. See M.B. v. Reish, 119 F.3d 230, 232 (2d Cir.1997) (per curiam) (finding that a pro se litigant who filed a 27-page declaration of facts with 104 pages of exhibits, a 40-page memorandum of law, a cross-motion for

summary judgment, and a request for additional discovery understood the nature and consequences of

summary judgment). Here, neither the district court nor the defendants provided notice to fully apprise Bhatia “of the consequences of failing to respond to a motion for

summary judgment.” Vital, 168 F.3d at 620. Moreover, nothing in the record supports the contention that Bhatia independently understood how to respond to the defendants’

summary judgment motion for us to deem the lack of notice harmless, as he did not submit affidavits contradicting any of the facts in the defendants’ motion, nor did he submit any evidence in support of his claims. Accordingly, we remand this case to the district court in accordance with Vital, 168 F.3d at 620. Additionally, Bhatia seeks sanctions in this Court due to the defendants’ attachment of a portion of Bhatia’s criminal record in their appellate brief, which record, under Connecticut state law, was deemed to have been “erased” in early November 2003. See Conn. Gen.Stat. § 54-142a(

a) and (g) (providing that, when a criminal defendant is found not guilty or the charges against him have been dismissed, “all police and court records and records of any state’s attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken ...”). Moreover, after he made an application in state court, Bhatia’s records were ordered to be physically destroyed in early November 2006.

See id. at § 54-142a(e)(l) (providing that, upon request by the accused, his criminal records may be physically destroyed after “three years have elapsed from the date of the final disposition of the criminal case ... ”). Because the defendants first submitted the records to the district court with their motion for

summary judgment, the issue of whether the defendants acted in bad faith by filing the document in district court should have been raised below. See Mick-le v. Morin, 297 F.3d 114, 125-26 (2d Cir.2002) (noting that a federal court has the inherent power to sanction a litigant or counsel for bad-faith conduct).

Accordingly, in light of the fact that this case is being remanded to the district court in accordance with Vital, we commend this issue to the district court for its thoughtful consideration of whether the defendants acted in bad faith, given the fact that the defendants had access to an “erased” record and filed the document on the district court’s public docket sheet.

To the extent that Bhatia seeks sanctions because (1) the defendants allegedly never served him with their objection to his motion for sanctions; and (2) the charge information as to Bhatia’s state coui’t criminal case was still available, as of November 2008, for public viewing through a website provided by the State of Connecticut, those requests are denied. First, as to the defendants’ alleged failure to effect service, Bhatia does not demonstrate that there is “clear evidence” of bad-faith conduct on the part of the defendants. See id.

Moreover, one alleged instance of failure to effect service does not rise to the level of misconduct that necessitates the court’s use of its inherent powers to impose sanctions. See Chambers v. NASCO, 501 U.S. 32, 45-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (discussing a court’s use of its inherent power to impose sanctions where a party “has acted in bad faith, vexatiously, wantonly, or for oppressive reasons”).

Second, as to the fact that Bhatia’s criminal charge information was still available for public viewing after his criminal record should have been “erased” in late November 2003, there is no indication, and Bhatia fails to allege, that the defendants had control over which records were available for public disclosure. Finally, Bhatia requests that this Court remove the arrest warrant application from the Court’s public docket sheet. We decline to do so. As a general matter, we disfavor sealing in this Court what is a public record in the district court.

Whether the document should be sealed should in the first instance be decided in the district court. For the reasons stated above, the judgment of the district court is VACATED, and we REMAND to the district court to conduct further proceedings in accordance with this decision and for consideration of the claim that the defendants acted in bad faith. We also DENY Bhatia’s motion for sanctions regarding (1) the Defendants’ failure to effect service; and (2) the fact that his charge information as to his state court criminal case was available, as of November 2008, for public viewing. Richard J.

Sullivan, of the United States District Court for the Southern District of New York, sitting by designation.