Hodge v. City of Long Beach , 433 F. App'x 17 ( 2011 )

10-1774-cv
Hodge v. Long Beach, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 19th day of May, two thousand and eleven.
Present: RALPH K. WINTER,
ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
Circuit Judges.
_____________________________________________________
JAMES HODGE,
Plaintiff-Appellant,
-v- 10-1774-cv
CITY OF LONG BEACH, EUGENE CAMMARATO, in his
individual and official capacity, EDWARD EATON, in his
individual and official capacity, LAWRENCE WALLACH AKA
LARRY WALLACH, in his individual and official capacity,*
Defendants-Appellees.
Appearing for Appellant: Frederick K. Brewington, Law Offices of Frederick K. Brewington,
Hempstead, NY.
Appearing for Appellee: Ronald J. Rosenberg, John S. Ciulla, Rosenberg Calica & Birney
LLP, Garden City, NY, for City of Long Beach.
Appearing for Appellees: Stanley A. Camhi, Jaspan Schlesinger LLP, Garden City, NY, for
*
We direct the Clerk of Court to amend the caption as noted.
Eugene Cammarato, Edward Eaton, and Lawrence Wallach.
Appeal from the United States District Court for the Eastern District of New York (Platt,
J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Plaintiff-Appellant James Hodge (“Hodge”) commenced this action against Defendants-
Appellees City of Long Beach, Eugene Cammarato, Edward Eaton, and Lawrence Wallach
(collectively referred to as “defendants” unless otherwise specified) on November 4, 2002.
Hodge’s Second Amended Complaint sets forth claims alleging discrimination pursuant to
federal law under 42 U.S.C. §§ 1981, 1983, 1985, 1986, and § 2000(d),1 and pursuant to state law
under Article 4 of New York State’s Civil Service Law §§ 75, 80, and New York State Executive
Law § 296. On April 14, 2010, Judge Platt of the United States District Court for the Eastern
District of New York granted defendants summary judgment on all of the federal claims, and
dismissed the state law claims without prejudice. Hodge now appeals from that Order. We
assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review.
On appeal, Hodge raises principally three issues: (1) that the district court erred in
granting summary judgment to defendants under 42 U.S.C. § 1981, finding that defendants did
not unlawfully discriminate against Hodge because of his race; (2) that the district court erred in
granting summary judgment to defendants under 42 U.S.C. § 1983, finding that defendants did
not limit Hodge’s political speech in violation of the First Amendment, nor discriminated against
him in violation of the Fourteenth Amendment; and (3) that the district court erred in granting
summary judgment to defendants under 42 U.S.C. §§ 1985 and 1986, finding that defendants did
not conspire to discriminate against him, and thus that defendants did not know of the
discrimination and thereby did not fail to prevent it.
We review a district court’s grant of summary judgment de novo. In re Agent Orange
Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir. 2008). Summary judgment is appropriate “only if
there is no genuine issue as to any material fact and if the moving party is entitled to a judgment
as a matter of law.” Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005) (citing Fed. R.
Civ. P. 56(c)). A genuine issue for the purpose of the motion exists “where the evidence is such
that a reasonable jury could decide in the non-movant’s favor.” Beyer v. Cnty. of Nassau, 524
F.3d 160, 163 (2d Cir. 2008) (citation omitted).
The moving party bears the burden of demonstrating that there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party
fails to provide evidentiary support for an essential element of its claim for which it bears the
burden of proof, summary judgment is warranted. Id. at 322-23. While the court, in deciding
1
The district court, with Hodge’s consent, dismissed the claim under 42 U.S.C. §
2000(d) with prejudice.
2
the motion, must draw “all reasonable factual inferences in the light most favorable” to the non-
moving party, see DeFabio v. E. Hampton Union Free Sch. Dist., 623 F.3d 71, 74 (2d Cir. 2010),
a party opposing the motion for summary judgment must nevertheless support its argument by
“citing to particular parts of materials in the record, including depositions, documents, . . .
affidavits or declarations,” see Fed. R. Civ. P. 56(c)(1)(A). An affidavit or a declaration “must
be made on personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P.
56(c)(4). Accordingly, “unsupported allegations do not create a material issue of fact.”
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000); see also Fed. R. Civ. P. 56(e)(3).
After having conducted an exhaustive review of the record in light of these well-known
principles, we affirm the district court’s judgment for substantially the reasons stated by the
district court in its thorough and well-reasoned decision. We have considered all of Hodge’s
arguments on appeal, and have found them to be without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3