Nunez v. Mitchell ( 2021 )

18-2948
Nunez v. Mitchell
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 ASUMMARY ORDER@). A PARTY CITING TO 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 12th day of February, two thousand twenty-one.
PRESENT:
AMALYA L. KEARSE,
PIERRE N. LEVAL,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
Mark Nunez,
Plaintiff-Appellant,
v. No. 18-2948
C.O. Rodney Mitchell, Shield No. 03867, in his
individual and official capacity., C.O. David
Jennings, Shield no. 6959, in his individual and
official capacity, Police Officer Lebron, Badge
No. 3255, in his individual and official capacity,
Defendants-Appellees.
_______________________________________
FOR PLAINTIFF-APPELLANT: Mark Nunez, pro se, Bronx, NY.
FOR DEFENDANTS-APPELLEES: David Lawrence III, Assistant
Solicitor General, for Barbara D.
Underwood, Solicitor General, New
York State Office of the Attorney
General, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Nathan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Mark Nunez, proceeding pro se on appeal, brought this action against two court
officers and a police officer following a 2014 incident in a Bronx courthouse, during which Nunez
was arrested. After the charges against him were dismissed, Nunez brought claims for, among
other things, false arrest and malicious prosecution. The district court granted defendants’ motion
to dismiss, finding that the majority of Nunez’s claims were time-barred and that Nunez failed to
adequately plead § 1983 malicious prosecution and conspiracy claims. Nunez now appeals. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal, and refer to them only as needed to explain our decision to affirm.
“We review de novo a district court’s dismissal of a complaint pursuant to Rule 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.” Chambers v. Time Warner, Inc., 282
F.3d 147, 152 (2d Cir. 2002). We “liberally construe pleadings and briefs submitted by pro se
litigants, reading such submissions to raise the strongest arguments they suggest,” McLeod v.
Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017), but pro se appellants must still
comply with Federal Rule of Appellate Procedure 28(a), which “requires appellants in their briefs
to provide the court with a clear statement of the issues on appeal,” Moates v. Barkley, 147 F.3d
207, 209 (2d Cir. 1998). Despite affording pro se litigants “some latitude in meeting the rules
2
governing litigation, . . . we need not, and normally will not, decide issues that a party fails to raise
in his or her appellate brief.” Id.; see also Terry v. Inc. Village of Patchogue, 826 F.3d 631, 633
(2d Cir. 2016) (“[E]ven a litigant representing himself is obliged to set out identifiable arguments
in his principal brief.” (internal quotation marks omitted)); LoSacco v. City of Middletown, 71 F.3d
88, 92-93 (2d Cir. 1995) (pro se litigant abandoned issue by failing to address it in appellate brief).
Nunez’s appellate brief largely reiterates the allegations set forth in his amended complaint.
While the brief does discuss the standards applicable to malicious prosecution claims, and in it
Nunez asserts with respect to these claims that his allegations establish that one or more defendants
acted with malice, his submission falls short of advancing an argument: it addresses an issue the
district court did not reach and that was not necessary to its decision. Because Nunez’s brief does
not set forth arguments challenging the district court’s reasons for dismissing his claims, Nunez
has forfeited any challenge to the judgment of the district court. See LoSacco, 71 F.3d at 92-93.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
3