Joe Burgos VEGA, Plaintiff-Appellant, v. M. Jodi RELL, I/O, et al., Defendants-Appellees, Steven R. Strom, I/O, et al., Defendants, 611 F. App'x 22

SUMMARY ORDER Appellant Joe Burgos Vega, proceeding pro se, argues that the district court erred in denying his motions for appointment of counsel, dismissing some of his claims sua sponte pursuant to 28 U.S.C. § 1915A, granting partial

summary judgment to defendants, and granting judgment as a matter of law to the defendants as to his remaining claims. We assume the parties’ familiarity with the underlying facts and procedural history of the case. I. Denial of Motions for Appointment of Counsel We review a district court’s decision whether to appoint counsel for abuse of discretion. See Carpenter v. Republic of Chile, 610 F.3d 776, 780 (2d Cir.2010). When deciding whether to appoint counsel, the district court “should first determine whether the indigent’s position seems likely to be of substance.” Hodge v.

Police Officers, 802 F.2d 58, 61 (2d Cir.1986). Once this “threshold requirement” has been met, a court should consider secondary factors, such as “the indigent’s ability to investigate the crucial facts, ... the indigent’s ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.” Id. at 61-62. We have rejected a policy of appointing counsel only after a plaintiffs claim has survived a dispositive motion. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir.1997).

Even assuming that Vega’s claims met the threshold requirement of likely merit, it is evident from the record that the secondary factors weighed against appointment of counsel. As the district court observed, Vega had litigation experience and paralegal training, and he demonstrated an ability to pursue his claims without assistance of counsel. The district court also based its decision in part on Vega’s “clear recalcitrance in this case,” Vega v.

Rell, 3:09-cv-737 (VLB) (D.Conn. filed Dec. 11, 2012), EOF No. 17.9 at 7, finding that he had “not acted in good faith” by “consistently ... ignoring] the court’s dismissal of claims from th[e] case,” id. at 5. Under these circumstances, the district court did not abuse its discretion in declining to appoint counsel. II. Sua Sponte Dismissals Vega also challenges the district court’s dismissals of various claims sua sponte pursuant to § 1915A.

On appeal, he argues only that the district court dismissed claims of “constitutional meritorious magnitude,” without identifying the district court’s error or explaining the constitutional significance of his claims. Appellant’s Br. at 21. He has therefore waived review of these dismissals. See Norton v.

Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998). “[A]ppellate courts generally do not hold pro se litigants rigidly to the formal briefing standards ... [but] we need not manufacture claims of error for an appellant proceeding pro se, especially when he has raised an issue below and elected not to pursue it on appeal.” Lo-Sacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir.1995) (citation omitted). III.

Summary Judgment We review de novo a district court’s grant of

summary judgment, “resolv[ing] all ambiguities and drawing] all factual inferences in favor of the [non-movant].” Nationwide Life Ins. Co. v. Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir.1999) (internal quotation marks omitted). “Summary judgment is appropriate only if the moving party shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.” Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). A. July 9, 2012 Grant of Partial

Summary Judgment On July 9, 2012, the district court granted

summary judgment to defendants Furey and Silvis on Vega’s claims of deliberate indifference to serious medical needs and involuntary administration of psychiatric medication. Vega contends that the district court erred by deeming Silvis’s and Fure/s Local Rule 56(a)l statement of facts undisputed because Vega’s statement in opposition to

summary judgment lacked citations to either the affidavit of a witness who would be competent to testify or to other admissible evidence, as required by Local Rule 56(a)3. We give “considerable deference” to the district court’s

interpretation and application of its own local rule, and review such rulings for abuse of discretion. See Lo-Sacco, 71 F.3d at 92. However, “[a] local rule imposing a requirement of form must not be enforced in a way that causes a party to lose any right because of a non-willful failure to comply.” Fed.R.Civ.P. 83(a)(2). Vega had notice of the requirements of the local rule yet failed to comply. However, he did submit a 17-page affidavit with assertions of fact that countered those set forth in Silvis’s and Fure/s statement of undisputed facts.

In support of his affidavit’s counter-assertions of fact, Vega cited to his medical records. Accordingly, we would be reluctant to ignore Vega’s submission on the ground that its form did not fully comply with the local rule. However, the district court did not itself disregard Vega’s submission.

On the contrary, it analyzed his affidavit’s counter-assertions of fact, but concluded that his uncontroverted medical records undercut each one. ‘When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for

summary judgment.” Scott v. Hariss, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); see also D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998) (explaining that the party opposing

summary judgment “may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence” in support of its factual assertions). On appeal, Vega does not claim that the district court misconstrued the medical records, nor does he point to any evidence that refutes the defendants’ statement of facts entitling them to

summary judgment. Therefore, Vega was not prejudiced by the district court’s application of Local Rule 56(a)3, and the district court did not abuse its discretion in applying that rule. Vega also argues that the district court prematurely granted

summary judgment for Silvis and Furey because the defendants had not yet complied with his motion to compel discovery of various documents. Vega’s argument overlooks the fact that the district court denied Vega’s motion to compel discovery before granting

summary judgment. In any event, Vega has not identified, either in his objection to

summary judgment as premature in the district court or in his brief before this Court, any specific discoverable information he hoped to obtain by his discovery requests that would have raised a material issue of fact. Vega’s assertion that

summary judgment was premature due to incomplete discovery is therefore without merit. See Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir.1994) (“[The nonmovant’s] argument is that it should be allowed to find out if it has a claim, rather than that it has a claim for which it needs additional discovery. Such divagation is decidedly not the object of the discovery procedures outlined in the Federal Rules of Civil Procedure.”). B. December .4, 2013 Grant of Partial

Summary Judgment On December 4, 2013, the district court granted

summary judgment in favor of defendants on Vega’s claim that he experienced unsanitary cell conditions in the Restrictive Housing Unit on the grounds that Vega failed to exhaust his administrative remedies. Vega argues that his failure to grieve this claim should be excused because correction officers refused to provide him the correct grievance form. The Prison Litigation Reform Act mandates that inmates exhaust the administrative remedies available to them before they seek relief in federal court for prison conditions. See Porter v.

Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). “[P]roper exhaustion” requires “using all steps that the agency holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (emphasis in original) (internal quotation marks omitted). While exhaustion is mandatory, failure to exhaust may be excused when “administrative remedies are not available to the prisoner” or when the prisoner has “a reasonable misunderstanding of the grievance procedures.” Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir.2006), citing Hemphill v.

New York, 380 F.3d 680, 686 (2d Cir.2004). The district court correctly determined that Vega‘failed to raise a triable issue of fact on whether his failure to exhaust his administrative remedies may be excused. Vega offered no evidence beyond his con-clusory allegation that grievance forms were not available to him. Moreover, the record demonstrates that Vega was provided a form on which he could have grieved his complaint, but elected not to use it. Instead, he filed a lengthy appeal of a disciplinary proceeding that contained only a single sentence referencing conditions in his cell.

Accordingly, the district court did not err in granting

summary judgment on this claim. Vega also challenges the district court’s decision in the December 4, 2013

summary judgment order not “to continue to liberally construe [Vega’s] pleadings, a construction traditionally afforded pro se parties.” Vega v. Rell, 3:09-cv-737 (VLB), 2013 WL 6273283 (D.Conn. filed Dec. 4, 2013) ECF No. 270 at 3. Vega suffered no prejudice from this decision because his exhaustion claim was unsupported, and indeed contradicted, by the record, and therefore did not present a triable issue of fact even under a liberal construction.

Thus, we need not address whether, given Vega’s litigation experience and paralegal training, the district court’s decision to discontinue liberal construction was a proper exercise of its discretion. See Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir.2010). IV. Judgment as a Matter of Law After filing his notice of appeal, Vega moved this Court “to be loaned/furnished a copy of the record on appeal.” Appellant’s Mot., June 19, 2014, ECF No. 41 at 1. We denied that motion, noting that Vega had “already submitted his brief’ and therefore that “he no longer need[ed] the record to complete his brief.” Mot.

Order, Aug. 13, 2014, ECF No. 68 at 1. We explained that “to the extent trial transcripts are necessary to decide his appeal, [Vega] is responsible for providing the transcripts.” Id. We further advised Vega that he could seek free transcripts in the district court by submitting a motion identifying issues that present a substantial question, and that if this motion was denied Vega could then move in this Court. Vega replied that he would not seek any transcripts because he was “influenced by the Court’s ... reasoning in which the Court stated ‘...

Appellant has already submitted his brief_’” Appellant’s Submission, Sept. 17, 2014, ECF No. 69 at 1-2. Vega is obligated to provide the trial transcripts because without them we cannot assess his claims that the district court erred in granting judgment to defendants as a matter of law. See Fed. R.App. P. 10(b). Ordinarily, Vega’s failure to provide the transcripts after being informed of his to do so would result in his claim being dismissed with prejudice. See, e.g., Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir.2000).

However, we recognize that our prior order was ambiguous, and Vega appears to have interpreted it, not unreasonably, to indicate that the transcripts were unnecessary because he had already submitted his brief. Accordingly, we dismiss this portion of his appeal without prejudice to afford him another opportunity to obtain the transcripts. See Gayle v. Walker, 148 F.3d 214, 214 (2d Cir.1998) (dismissing pro se appeal without prejudice to reinstatement for failure to file transcripts).

As explained, Vega may seek free transcripts in the district court by submitting a motion that identifies issues that present a substantial question. See 28 U.S.C. § 753(f). If the district court denies the motion, Vega may move in this Court and must again list issues that present a substantial question. See 2d Cir. R. 24.1.

Vega’s appeal of the judgment as a matter of law is therefore DISMISSED WITHOUT PREJUDICE to reinstatement, provided that, within 30 days of the date of this order, he provides this Court with (1) the trial transcripts; (2) proof that he has ordered the transcripts; or (3) proof that he has moved in the district court for free transcripts under 28 U.S.C. § 753(f). Upon timely filing of the trial transcripts, the appeal will be reinstated, and will be assigned to a new panel in the ordinary course. In all other respects, for the reasons set forth above, the judgment of the district court is hereby AFFIRMED.