UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK. JOHN GUGINO, ) ) Plaintiff, ) ) v. ) Case No, 1:21-cv-01319 ) ERIE COUNTY, ) ) Defendant. ) □ ENTRY ORDER GRANTING DEFENDANT ERIE COUNTY’S MOTION FOR RECONSIDERATION (Doc, 32) Plaintiff John Gugino brings this suit against Defendant Erie County (the “County”) for events arising out of his employment as an Erie County Sheriff's Deputy, alleging a violation of his equal protection rights (Count 1) and a violation of his due process rights (Count IL) brought pursuant to

, as well as retaliation in violation of the Family Medical Leave Act of 1993 (the “FMLA”) brought pursuant to

(Count II). He seeks past lost wages and benefits, monetary damages relating to his suspension, and reinstatement to his former position. The County moved for summary judgment on September 12, 2023, (Doc. 18), and Plaintiff opposed the motion on January 10, 2024, (Doc. 26).! The County filed a reply on January 17, 2024, (Doc. 27), at which point the court took the motion for summary judgment under advisement. On July 18, 2024, the court granted in part and denied in part the County’s motion for summary judgment. (Doc. 31.) It dismissed Plaintiff's equal protection and FMLA retaliation claims but denied summary judgment as to his due process claim, concluding that the undisputed facts failed to establish whether Plaintiff was afforded procedural due

' The court granted Plaintiff's motion for an extension of time to file his memorandum in opposition. (Doc. 28.)

process following his suspension without pay. The County addresses post-deprivation due process for the first time in its reply because it was raised in Plaintiff's opposition. On August 2, 2024, the County moved for reconsideration, arguing that the court erred when it concluded that the County failed to adequately address the issue of post- deprivation due process because Plaintiff's due process claim as set forth in his Complaint was solely based on the lack of a pre-deprivation hearing. (Doc, 32.) Plaintiff did not file a reply by August 21, 2024, at which point the court took the pending motion under advisement. Plaintiff is represented by Richard Joseph Perry, Jr., Esq., and Lindy Korn, Esq, The County is represented by Morgann K. Obrochta, Esq. “It is well-settled that a party may move for reconsideration and obtain relief only when the [movant] identifies ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Kole/ Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr.,

(2d Cir. 2013) (quoting Virgin Atl. Airways, Lid. v. Nat'l Mediation Bd.,

, 1255 (2d Cir. 1992)). “[T]he standard for granting a... motion for reconsideration is strict[.|” Analytical Survs., Ine. v. Tonga Partners, L.P.,

(2d Cir, 2012) (alteration adopted) (internal quotation marks omitted) (quoting Shrader v, CSX Transp., Inc.,

(2d Cir. 1995)), Reconsideration “is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple[.]” /d. (internal quotation marks omitted) (citing Segua Corp. v. GBJ Corp.,

, 144 (2d Cir, 1998)), The County does not assert that there has been a change of controlling law or that new evidence is available. The County concedes that it “did not address the issue of post-deprivation due process” in its motion for summary judgment, (Doc. 32-2 at 6), but claims it did not do so because no post-deprivation claim is asserted in Plaintiff's Complaint. As the court explained in its Opinion and Order: “The ‘ultimate conclusion’ [regarding procedural due process] depends on ‘the full set of pre- and post-deprivation procedures available[,)’

however, ‘courts often analyze pre- and post-deprivation procedures separately.’” (Doc. 31 at 20) (second alteration in original) (emphasis supplied) (quoting O’Connor v. Pierson,

, 197 (2d Cir. 2005)). “[A]lthough notice and a pre-deprivation hearing are generally required, in certain circumstances, the lack of such pre-deprivation process will not offend the constitutional guarantee of due process, provided there is sufficient post-deprivation process.” Spinelli v. City of New York,

, 170 Qd Cir. 2009) (alterations adopted) (emphasis supplied) (internal quotation marks and citation omitted); see also Gilbert v. Homar,

(1997) (remanding case for consideration of whether university police officer was afforded due process regarding post-suspension procedures), | The County points to evidence submitted with its reply memorandum that establishes Plaintiff was offered a post-deprivation hearing on two occasions and declined to attend them. Because the County is correct that Plaintiffs Complaint alleges only a pre-deprivation violation of due process, Plaintiff could not amend his Complaint by addressing that claim for the first time in opposition to summary judgment, See Palm Beach Mar. Museum, Inc. v. Hapoalim Sec, USA, Inc.,

, 20 (2d Cir. 2020) (“[A] complaint may not be amended by advocating a different theory of liability in an opposition brief wholly unsupported by factual allegations in the complaint.”); Guardian News, Inc. v. Idoni,

, at * (S.D.N.Y. June 20, 2011) (observing that “in resolving a motion for summary judgment, the [cJourt should not consider new factual allegations and legal theories not raised in the complaint[]”). The County’s failure to address a post-deprivation claim in its moving papers was thus reasonable. As it moved for summary judgment based upon Plaintiff's Complaint and demonstrated its entitlement to judgment as a matter of law in its favor on each of Plaintiffs claims, reconsideration is warranted.

CONCLUSION For the reasons stated above, the court GRANTS the County’s motion for reconsideration, (Doc. 32), and GRANTS the County summary judgment on ail claims set forth in Plaintiff's Complaint. SO ORDERED. Dated this day of September, 2024.

Christina Reiss, District Judge United States District Court