Apollo, Sr. v. Bank of America, Na

• Court: District Court, District of Columbia
• Decided: November 5, 2019
• Docket: Civil Action No. 2017-2492
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) JOSE G. APOLLO, SR., ) ) Plaintiff, ) ) v. ) Case No. 17-cv-2492 (APM) ) BANK OF AMERICA, N.A., et al., ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION

Pro se Plaintiff Jose G. Apollo, Sr. brought this action alleging race discrimination in

violation of 42 U.S.C. §§ 1981 and 1985(3). Notice of Removal, ECF No. 1-1. In short, Plaintiff

claims that, on or about August 3, 2016, Defendant Bank of America and its employees,

Defendants Nancy Robinson and Alexandria Scudder, refused to provide him banking services

and threw him out of the Dupont Circle branch because of his race. See Second Re-Amended

Complaint, ECF No. 11. Defendants now move for summary judgment. Defs.’ Mot. for Summ.

J., ECF No. 60. Plaintiff did not formally oppose Defendants’ motion but did file his own motion

for summary judgment. Pl.’s Mot. for Summ. J., ECF No. 69 [hereinafter Pl.’s Mot.].

As explained below, Defendants’ motion is granted, and Plaintiff’s motion is denied.

Defendants have offered a non-discriminatory reason for removing Plaintiff from the

Dupont Circle branch on the date in question: Plaintiff was rude and verbally abusive to employees

who were trying to assist him with a wire transfer. See Defs.’ Stmt. of Material Facts, ECF No. 60,

at 12–13. Plaintiff has not disputed Defendants’ factual assertions. The court thus treats

Defendants’ facts as conceded, see Fed. R. Civ. P. 56(e)(b), and concludes that there is no genuine dispute of material fact as to Defendants’ non-discriminatory motive for removing Plaintiff from

the bank.

Although a pleading by a pro se litigant is liberally construed, he still must comply with

the Federal Rules of Civil Procedure and this court’s local rules. See Clariett v. Rice, No. 04-2250,

2005 WL 3211694, at *4 (D.D.C. Oct. 18, 2005); Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C.

1987). Plaintiff received ample warning as to what was required of him in responding to

Defendants’ motion for summary judgment. The court orally advised him at the hearing held on

June 4, 2019, that his opposition “needs to be supported by admissible facts in order to try to

overcome the motion for summary judgment.” Hr’g Tr., 6/4/19, ECF No. 56, at 18. The

scheduling order that followed stated that a party “opposing the motion shall . . . submit a statement

responding to each material fact presented in the statement of the moving party.” Order, ECF

No. 51, at 2. The order admonished that it “may treat as admitted facts identified by the moving

party in its statement of material facts that are not controverted in the opposing party’s responsive

statement.” Id. Finally, as required by Circuit precedent, see Neal v. Kelly, 963 F. 2d 453, 456

(D.C. Cir. 1992), the court issued an order after Defendants filed their motion, instructing Plaintiff

that he “must present evidence to rebut the moving party’s affidavits, such as other affidavits or

sworn statements,” Order, ECF No. 62, at 2.

Rather than heed these directions, Plaintiff neither filed an opposition brief nor responded

to Defendants’ statement of facts. Instead, he submitted his own motion for summary judgment,

but he did not include with it a statement of undisputed material facts as required by Local Rule

7(h)(1). See LCvR 7(h)(1). Plaintiff did belatedly file an “Affidavit in Support of Summary

Judgment Motion,” in which he purports to confirm the “truth” of “everything” in his Motion for

Summary Judgment. ECF No. 79. But the Affidavit serves as no cure. For one, the Affidavit is

2 no substitute for a statement of material facts. And, second, Plaintiff’s summary judgment motion

is an incomprehensible jumble of words and conclusory assertions, from which the court cannot

discern any factual content, other than the assertion that one of Defendant’s employees

mispronounced Plaintiff’s name. See Pl.’s Mot. at 12. The court is not required to hunt for “facts”

in a filing that does not clearly identify them. See Potter v. District of Columbia, 558 F.3d 542,

553 (D.C. Cir. 2009) (explaining that Local Rule 7(h) “embodies the thought that ‘judges are not

like pigs, hunting for truffles buried in briefs’ or the record.” (quoting United States v. Dunkel, 927

F.2d 955, 956 (7th Cir. 1991)).

Accordingly, for the foregoing reasons, Defendants’ Motion for Summary Judgment is

granted, and Plaintiff’s Motion for Summary Judgment is denied. Additionally, Plaintiff’s

Amended Motion for Sanctions, ECF No. 80, is denied as without merit. His Motion for

Interlocutory Appeal, ECF No. 81, and Motion to Stay Proceedings, ECF No. 82, are denied as

moot. Defendants’ Motion for an Order Setting a Status Conference, ECF No. 86, is likewise

denied as moot. A separate final order accompanies this Memorandum Opinion.

Dated: November 5, 2019 Amit P. Mehta United States District Judge