Cobbs v. City of Newburgh , 546 F. App'x 34 ( 2013 )

12-5040-cv
Cobbs v. City of Newburgh
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 26th day of November, two thousand thirteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 CHESTER J. STRAUB,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 ROBIN COBBS,
13
14 Plaintiff-Appellant,
15
16 -v.- No. 12-5040-cv
17
18 THE CITY OF NEWBURGH - CITY COUNCIL,
19 THE NEWBURGH CITY POLICE DEPARTMENT,
20 NEWBURGH CITY POLICE OFFICER PAUL N.
21 WEBER, in his official and individual
22 capacities, NEWBURGH CITY POLICE
23 OFFICER JOHN J. BUCKLEY, in his
24 official and individual capacities,
25
26 Defendants-Appellees.*
27 - - - - - - - - - - - - - - - - - - - -X
*
The Clerk of Court is respectfully directed to amend
the official caption in this case to conform with the
caption above.
1
1 FOR PLAINTIFF-APPELLANT: DOUGLAS R. DOLLINGER, Goshen,
2 NY.
3
4 FOR DEFENDANTS-APPELLEES: HOLLY L. REINHARDT, Tarshis,
5 Catania, Liberth, Mahon &
6 Milligram, PLLC, Newburgh, NY.
7
8 Appeal from a judgment of the United States District
9 Court for the Southern District of New York (Smith, Mag.
10 J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
13 AND DECREED that the judgment of the district court be
14 AFFIRMED.
15
16 Robin Cobbs appeals from the judgment dismissing her
17 complaint against the City of Newburgh (“Newburgh”) and
18 Police Officers John J. Buckley and Paul N. Weber. We
19 assume the parties’ familiarity with the underlying facts,
20 the procedural history, and the issues on appeal.
21 We review de novo a grant of summary judgment, drawing
22 all reasonable inferences in the non-moving party’s favor.
23 See Wrobel v. Cnty. of Erie, 692 F.3d 22, 27 (2d Cir. 2012).
24 Summary judgment is appropriate if the record shows that
25 “there is no genuine dispute as to any material fact and the
26 movant is entitled to judgment as a matter of law.” Fed. R.
27 Civ. P. 56(a). A genuine dispute of material fact exists
28 only “where the evidence is such that a reasonable jury
29 could decide in the non-movant’s favor.” Beyer v. Cnty. of
30 Nassau, 524 F.3d 160, 163 (2d Cir. 2008).
2
1 1. § 1983 Claims Against Buckley and Weber. Cobbs’s
2 § 1983 claims against Buckley and Weber fail because there
3 is no genuine dispute as to whether they were “acting under
4 color of state law.” Sykes v. Bank of Am., 723 F.3d 399,
5 406 (2d Cir. 2013).
6 “Mere employment by a state or municipality does not
7 automatically mean that a defendant’s actions are taken
8 under the color of state law.” Kern v. City of Rochester,
9 93 F.3d 38, 43 (2d Cir. 1996). Actions taken by municipal
10 employees solely in their capacity as union leaders or
11 members are not cognizable under § 1983. See id.
12 Cobbs contends that Weber was acting as a police
13 officer, rather than in his capacity as union president.
14 However, Weber testified that: he was acting purely as a
15 union leader; he was contacted by Buckley in that capacity;
16 and his duties as a police officer at that time were not at
17 City Hall. Cobbs produced no evidence to contradict this
18 evidence and has therefore failed to present a genuine
19 dispute as to whether Weber was acting under color of law.
20 Though Buckley was on-duty, Cobbs provides no evidence
21 that Buckley (1) abandoned his post in order to allow the
22 removal of Cobbs’s mixed-media collage (the “picture”); or
3
1 (2) contacted Weber in any capacity other than as a union
2 member. Nor is there evidence that Buckley actually did
3 anything to deprive Cobbs of her constitutional rights.
4 Cobbs adduces no evidence to refute Buckley’s testimony that
5 he never requested the immediate removal of Cobbs’s picture.
6 2. § 1985 Claims. Cobbs has not established a
7 genuine dispute regarding her § 1985(3) claims against
8 Buckley and Weber. She provides no evidence of “racial, or
9 . . . otherwise class-based, invidiously discriminatory
10 animus” motivating the officers, a required “element of the
11 cause of action.” Griffin v. Breckenridge, 403 U.S. 88, 102
12 (1971); see also LeBlanc-Sternberg v. Fletcher, 67 F.3d 412,
13 426-27 (2d Cir. 1995). The mere fact that a person objects
14 to a given statement, act, or depiction as “racist” does not
15 mean that the objection is itself “racist.”
16 3. Municipal Liability. Cobbs also fails to adduce
17 evidence sufficient to raise a genuine dispute of material
18 fact with respect to her municipal liability claims.
19 Newburgh cannot be held vicariously liable under § 1983 for
20 torts committed by an employee and Cobbs therefore cannot
21 rely on respondeat superior. See Monell v. Dep’t of Soc.
22 Servs., 436 U.S. 658, 691 (1978). Conclusory allegations in
4
1 Cobbs’s complaint do not show any custom or pattern of
2 invidious treatment of African Americans.
3 Cobbs also fails to produce evidence that Buckley or
4 Weber (or the executive assistant who removed the picture)
5 were policymakers with “‘final authority to establish
6 municipal policy with respect to the action ordered.’”
7 Vives v. City of N.Y., 524 F.3d 346, 350 (2d Cir. 2008)
8 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481
9 (1986)). Nor has Cobbs adduced evidence that final
10 policymakers approved or otherwise acquiesced in the
11 decision to remove Cobbs’s picture. See City of St. Louis
12 v. Praprotnik, 485 U.S. 112, 127 (1988); Amnesty Am. v. Town
13 of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004). In fact,
14 the uncontroverted evidence suggests that the city manager
15 disapproved of the decision and offered to re-hang the
16 picture.
17 To the extent Cobbs bases her municipal liability claim
18 on a failure to train, Cobbs has failed to show a resulting
19 constitutional injury. Since the officers were not acting
20 under color of state law, there was no “constitutional
21 violation” that can be linked to an alleged failure to
22 train. See Segal v. City of N.Y., 459 F.3d 207, 219 (2d
5
1 Cir. 2006) (“Because the district court properly found no
2 underlying constitutional violation, its decision not to
3 address the municipal defendants’ liability under Monell
4 [for failure to properly train employees] was entirely
5 correct.”).
6 4. Breach of Contract. Cobbs presents no evidence of
7 any enforceable contract and corresponding breach by
8 Newburgh. The signed “Waiver and Release” says nothing
9 about how long Cobbs’s pictures would be displayed or
10 Newburgh’s right to remove them, and includes an integration
11 clause that supersedes any prior oral agreement.
12 Regardless, the assertion of an additional oral agreement is
13 entirely conclusory and unsupported in the record. See
14 Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir.
15 1996) (“[M]ere conclusory allegations, speculation or
16 conjecture will not avail a party resisting summary
17 judgment.”).
6
1 We have considered all of Cobbs’s remaining arguments
2 and conclude that they are without merit.1 The judgment of
3 the district court is hereby affirmed.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
8
9
10
1
Magistrate Judge Smith concluded that the Title VII
and § 1985(1) claims, and any claims against defendant
Newburgh City Police Department, were abandoned and
meritless. Cobbs does not attempt to resuscitate them on
appeal. We also need not reach Newburgh’s alternative
arguments concerning qualified immunity and the scope of the
“Waiver and Release,” because summary judgment is
appropriate on the grounds discussed above.
7