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130 F.

3d 59
39 Fed.R.Serv.3d 368

Arthur T. VITELLO, Sr., Plaintiff-Appellant,

John AMBROGIO, Defendant-Appellee.
No. 630, Docket 97-7415.

United States Court of Appeals,

Second Circuit.
Argued Nov. 17, 1997.
Decided Dec. 2, 1997.

John R. Williams, New Haven, Connecticut, for Plaintiff-Appellant.

John J. Kelly, Orange, Connecticut (Cantor, Floman, Russell, Gross, Kelly
& Amendola, Orange, Connecticut, on the brief), for Defendant-Appellee.
Before: KEARSE and CARDAMONE, Circuit Judges, and LEISURE,
District Judge* .

Plaintiff Arthur T. Vitello, Sr., appeals from a final judgment entered in the
United States District Court for the District of Connecticut, Alfred V. Covello,
Judge, dismissing his complaint under 42 U.S.C. 1983 (1994) alleging that
defendant John Ambrogio denied him due process and equal protection in
rejecting Vitello's application, made in accordance with state law, for a pistol
permit. Following an unrecorded settlement conference among the parties and
the court immediately before the scheduled trial of the action, the district court
sua sponte dismissed the action, stating, inter alia, that

2 the within case, the plaintiff never filed an appeal to the superior [state] court
and, therefore, failed to pursue the process that he claims he is due. Accordingly, to
the extent the plaintiff's claims are based upon a deprivation of due process, they are
hereby dismissed as the plaintiff never pursued the requisite process.

Order of Dismissal dated February 27, 1997, at 2. The district court's factual

Order of Dismissal dated February 27, 1997, at 2. The district court's factual
premise for this disposition--Vitello's failure to appeal the denial of his permit
application--is not reflected in the record. Defendant made no motion for
summary judgment to which Vitello could have responded, and hence it is not
clear that the material facts are undisputed. Accordingly, the summary
dismissal of Vitello's due process claim was inappropriate.
The court also summarily dismissed Vitello's equal protection claim, stating
that Vitello had not demonstrated that his application received disparate

5 court concludes that the record fails to establish that the defendants intended to
discriminate against the plaintiff or that a government officer deliberately interpreted
a statute against the plaintiff.

Id. at 3. The summary dismissal of this claim in the absence of a motion for
summary judgment and in the absence of (a) notice from the court that it was
considering such a disposition and (b) an opportunity for Vitello to respond to a
precise delineation of the material facts supposedly not genuinely in dispute,
was likewise inappropriate. See, e.g., Hispanics for Fair and Equitable
Reapportionment v. Griffin, 958 F.2d 24, 25 (2d Cir.1992) (per curiam); FLLI
Moretti Cereali S.P.A. v. Continental Grain Co., 563 F.2d 563, 565 (2d

The judgment of the district court is vacated, and the matter is remanded for
further proceedings not inconsistent with this opinion. We express no view as to
whether or not a summary disposition will be appropriate on the record
developed on remand.

Plaintiff shall recover his costs in connection with this appeal.

Honorable Peter K. Leisure, of the United States District Court for the
Southern District of New York, sitting by designation