Malik v. City of New York ( 2021 )

20-1969-cv
Malik v. City of New York, et al
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.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 11th day of January, two thousand twenty-one.
PRESENT: GUIDO CALABRESI,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
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ABDUL Q. MALIK,
Plaintiff-Appellant,
-v- 20-1969-cv
CITY OF NEW YORK, ERIC GONZALEZ, ESQ.,
DEBRA JAROSLAWICZ, ROBERT ADDONIZIO,
ALBINA ZAVADSKY, GLENN P. KENNY,
Defendants-Appellees,
JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JANE
DOE 1, JANE DOE 2, AS EMPLOYEES OF THE
KINGS COUNTY DISTRICT ATTORNEY'S OFFICE
AND INDIVIDUALLY,
Defendants. *
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FOR PLAINTIFF-APPELLANT: ROBERT MAHONEY (Eric Alvarez, on the
brief), Norris, McLaughlin, P.A., New York,
New York.
FOR DEFENDANTS-APPELLEES: ZACHARY S. SHAPIRO, Senior Counsel
(Richard Dearing, Assistant Corporation
Counsel, Scott Shorr, Assistant Corporation
Counsel, on the brief), for James E. Johnson,
Corporation Counsel of the City of New York,
New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Block, J.).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Abdul Q. Malik appeals the district court's judgment
entered May 28, 2020, dismissing his claims against defendants-appellees the City of
New York (the "City"), Kings County District Attorney ("DA") Eric Gonzalez, former
Assistant District Attorney ("ADA") Debra Jaroslawicz, DA Investigator Glenn Kenny,
and DA Investigator Robert Addonizio (collectively, the "City defendants") and non-
* The Clerk of the Court is respectfully directed to amend the official caption to conform
to the above.
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government actor Albina Zavadsky. 1 By memorandum and order entered May 27,
2020, the district court granted motions to dismiss filed by the City defendants and
individual defendant Zavadsky . We assume the parties' familiarity with the
underlying facts, procedural history of the case, and issues on appeal.
As alleged in the complaint, from 2012 to 2015, the Kings County DA's
office investigated an alleged fraudulent scheme involving the "Vanier Organization,"
which purportedly operated medical clinics and submitted fraudulent claims to
Medicaid, Medicare, and certain healthcare organizations. Malik, a doctor, was
implicated in the scheme and was charged with fraud, larceny, and other crimes in two
indictments. Malik had read more than 10,000 diagnostic images for a company
assertedly owned by Zavadsky that was purportedly involved in the conspiracy and
was alleged to have, among other things, (1) controlled a bank account into which the
company deposited fraud proceeds and (2) billed Medicaid for services that were either
never performed or medically unnecessary. It appears, however, that Malik's signature
was forged on Medicaid reimbursement forms and checks, and the charges against
Malik were dropped, on motion of the DA's office, on November 30, 2017.
On March 30, 2018, Malik brought this action below against the City
defendants, Zavadsky, Thompson, and five John/Jane Does. On May 27, 2020, the
1 Former DA Kenneth Thompson, who passed away prior to commencement of the
action, was also a defendant below.
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district court granted the motions to dismiss, concluding that (1) Malik abandoned his
claims against Zavadsky; (2) Malik failed to state a plausible claim against Gonzalez,
Jaroslawicz, Kenny, and Addonizio because they were protected by absolute
prosecutorial immunity; and (3) the City was not liable because there was no
underlying constitutional violation and, even if there were, Malik did not plausibly
allege a Monell violation. This appeal followed.
DISCUSSION
I. Standard of Review
"We review de novo a district court's grant of a motion to dismiss
[pursuant to Federal Rule of Civil Procedure 12(b)(6)], construing the complaint
liberally, accepting all factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiff's favor." La Liberte v. Reid, 966 F.3d 79, 85 (2d Cir.
2020) (internal quotation marks and alteration omitted).
The standard of review applicable to a district court's determination that a
party has abandoned his claims has not been settled, see Joseph v. United States, 740 F.
App'x 12, 13 (2d Cir. 2018) (summary order), but we need not resolve that issue here as
the result would be the same regardless of the standard we apply.
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II. Claims Against Zavadsky 2
The district court concluded that Malik abandoned his claims against
Zavadsky because his opposition brief failed to address Zavadsky's argument that she
was not a state actor for purposes of § 1983. We agree.
Malik filed a single opposition to defendants' motions to dismiss, but he
did not make any arguments that addressed Zavadsky's motion. 3 On appeal, he argues
that we should overlook this failure because the conclusion paragraph of his brief below
read, "For all of the foregoing reasons, and based upon the Complaint, attached
Exhibits, Plaintiffs [sic] respectfully request that the Court deny Albina Zavadsky and
the Kings County Defendants' Motions to Dismiss." Dist. Ct. Dkt. No. 31 at 25. But
"[w]hen a party fails adequately to present arguments" in a brief, a court may properly
"consider those arguments abandoned," State St. Bank & Tr. Co. v. Inversiones Errazuriz
Limitada, 374 F.3d 158, 172 (2d Cir. 2004), especially "in the case of a counseled party"
where "a court may . . . infer from a party's partial opposition that relevant claims or
defenses that are not defended have been abandoned," Jackson v. Fed. Exp., 766 F.3d 189,
2 Zavadsky, who is separately represented, has not filed an appeal brief, despite receiving
notice from the Clerk of Court. Nonetheless, we may still affirm sua sponte. See, e.g., Corley v.
Wittner, 811 F. App'x 62, 62 & n.1(2d Cir. 2020) (summary order) (affirming order where
defendants-appellees were represented on appeal but did not file opposition brief).
3 Malik raised arguments about Zavadsky's status as a government informant in response
to the City defendants' motion to dismiss Count 3 for malicious prosecution. Zavadsky,
however, was not named in Count 3 of Malik's complaint.
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198 (2d Cir. 2014). Malik argued at length as to why at least parts of the City
defendants' motion should be denied, but he did not address Zavadsky's state-actor
argument, which was dispositive of the § 1983 claims against her. Accordingly, we
affirm the district court's conclusion that Malik abandoned his claims against Zavadsky.
III. Claims Against the City Defendants
The district court dismissed Malik's remaining federal claims on the
ground that the individual City defendants were protected by absolute immunity, and,
without any underlying constitutional violation, Malik had no grounds for a Monell
claim.
Prosecutors enjoy absolute immunity for "acts undertaken . . . in preparing
for the initiation of judicial proceedings or for trial, and which occur in the course of his
role as an advocate for the State," but "[a] prosecutor's administrative duties and those
investigatory functions that do not relate to an advocate's preparation for the initiation
of a prosecution or for judicial proceedings are not entitled to absolute immunity."
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). "In applying this 'functional approach'
to claims of absolute immunity, courts focus on 'the nature of the function performed,
not the identity of the actor who performed it.'" Bernard v. County of Suffolk, 356 F.3d
495, 503 (2d Cir. 2004) (quoting Buckley, 509 U.S. at 269). This immunity thus "extends
to those performing functions closely associated with that process," including non-
lawyer employees at a district attorney's office. Hill v. City of New York, 45 F.3d 653, 660
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(2d Cir. 1995). "An official who asserts absolute immunity from § 1983 liability
shoulders the burden of establishing the existence of immunity for the function in
question." Id.
Malik argues that absolute immunity does not apply because
(1) "Jaroslawicz was acting in her investigatory function when she attempted to, and
successfully did, harass, intimidate, and threaten Zavadsky into testifying against Malik
to the Grand Jury," Appellant's Br. at 52, and (2) "Addonizio[] and Kenny acted in
concert [with Jaroslawicz] in coercing, pressuring, and concocting Zavadsky's false
testimony," Appellant's Br. at 55. But Malik has failed to make any nonconclusory
allegations that any City defendant coerced or pressured Zavadsky into giving false
testimony. And "naked assertions devoid of further factual enhancement" to that end
will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
alteration omitted). Thus, even assuming that allegations that prosecutors and their
staff fabricated evidence were sufficient to strip those individuals of absolute immunity,
Malik has not plausibly alleged that that is what happened here. Malik has not
otherwise plausibly alleged that defendants engaged in unlawful investigatory
functions, as all of his allegations to that end stem from the conclusory assertion that
defendants coerced Zavadsky into testifying falsely. Accordingly, we affirm the district
court's conclusion that the individual City defendants are protected by absolute
immunity.
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Because Malik has failed to plausibly allege any underlying constitutional
violation, he cannot maintain a Monell claim. See Segal v. City of New York, 459 F.3d 207,
219 (2d Cir. 2006).
IV. State Law Claims
Because it dismissed all of Malik's federal claims, the district court
properly declined to exercise supplemental jurisdiction over Malik's remaining state
law claims. See Klein & Co. Futures, Inc. v. Bd. of Trade of N.Y., 464 F.3d 255, 262 (2d Cir.
2006) ("It is well settled that where, as here, the federal claims are eliminated in the
early stages of litigation, courts should generally decline to exercise pendent jurisdiction
over remaining state law claims.").
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We have considered Malik's remaining arguments and conclude they are
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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