Funches v. Fischer

SUMMARY ORDER Edward Funches, proceeding pro se, brought this action contending principally that his inability to visit his brother on two occasions at the Coxsackie Correctional Facility violated Title II of the Americans with Disabilities Act (the “ADA”) and the Rehabilitation Act. On appeal, Funches argues that the District Court erred in granting summary judgment to defendants, denying his cross-motion for summary judgment, and denying a motion to amend the complaint filed by Funches’s brother, a non-party. He also challenges the court’s denial of his request for counsel. We assume the parties’ familiarity with the facts and record of the prior proceedings, to which we refer only as necessary to explain our decision to affirm. As an initial matter, we lack jurisdiction to review the District Court’s denial of appointment of counsel. The Federal Rules of Appellate Procedure provide that a notice of appeal must “designate the judgment, order, or part' thereof being appealed.” Fed. R.App. P. 3(c)(1)(B). Because this requirement is jurisdictional, “our jurisdiction is limited by the wording of the notice.” See New Phone Co. v. City of New York, 498 F.3d 127, 130 (2d Cir.2007). Funches’s notice of appeal references only the District Court’s March 31, 2014 “Order granting defendants’ motion for summary judgment, and denying the [51] petitioner’s request for summary judgment”; it does not mention the District Court’s January 2013 order denying his request for counsel. Funches lacks standing to challenge the portion of the District Court’s March 31, 2014 order denying his non-party brother’s motion to amend. There is a “general prohibition on a litigant’s raising another person’s legal rights.” Lexmark Int’l, Inc. v. Static Control Components, Inc., - U.S. -, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014) (quotation marks omitted). Funches acknowledges that the motion to amend was filed by his brother, not by him, and Funches challenges the denial of the motion not on his own behalf but on behalf of his brother. Under these circumstances, Funches cannot raise his brother’s legal rights on appeal. See id. As for Funches’s challenges to the District Court’s summary judgment determinations, we disagree with Funches’s contention that defendants’ failure to serve him with the District Court’s “Notification of the Consequences of Failing to Respond to a Summary Judgment Motion” warrants reversal of the grant of summary judgment to defendants. Although “[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,” reversal is not warranted “where an opposing party has already provided the litigant -with the requisite notice.” Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir.1999) (quotation marks omitted). Here, the record reflects that defendants informed Funches of the consequences of failing to (1) respond to their summary judgment motion and (2) contradict factual assertions in their affidavits. The District Court, moreover, relieved Funches of the consequences of failing to comply with the local rule governing Statements of Material Facts. With respect to the merits, “[w]e review de novo a district court’s ruling on cross-motions for summary judgment.” Ackerson v. City of White Plains, 702 F.3d 15, 19 n. 1 (2d Cir.2012) (quotation marks omitted). We affirm the District Court’s grant of defendants’ summary judgment motion and denial of Funches’s cross-motion for summary judgment on the merits for substantially the reasons set forth in the District Court’s March 31, 2014 order. We have considered Funches’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.