Johnston v. Town of Orangetown , 562 F. App'x 39 ( 2014 )


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  • 13-1579-cv
    Johnston v. Town of Orangetown
    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 14th day of April, two thousand fourteen.
    PRESENT:
    JOSÉ A. CABRANES,
    GERARD E. LYNCH,
    RAYMOND J. LOHIER, JR.,
    Circuit Judges.
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    MATTHEW JOHNSTON,
    Plaintiff-Appellant,
    -v.-                                                            No. 13-1579-cv
    TOWN OF ORANGETOWN, RONALD DELO, THOM KLEINER,
    JOSEPH RUTKOWSKI, ARTHUR HIGGINS, THOMAS
    FITZMAURICE, FRANK PENNINO, EDWARD BOERA,
    Defendants-Appellees.
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    FOR PLAINTIFF-APPELLANT:                                                  KEVIN T. MULHEARN, Orangeburg, NY.
    FOR DEFENDANTS-APPELLEES:                                                 RICHARD S. PAKOLA, for John S. Edwards,
    Orangetown Town Attorney, Orangeburg,
    NY.
    Appeal from a judgment, entered March 25, 2013, of the United States District Court for the
    Southern District of New York (George A. Yanthis, Magistrate Judge).
    1
    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
    AND DECREED that the judgment of the District Court is AFFIRMED.
    Plaintiff Matthew Johnston appeals from the judgment of the District Court granting
    summary judgment in favor of defendants. He brought claims under 42 U.S.C. § 1983 against the
    Town of Orangetown (“Orangetown”) and seven of its employees, alleging that defendants
    deprived him of his constitutionally protected property interests by demoting him without due
    process of law, in violation of the Fourteenth Amendment, and that they entered into a conspiracy
    to do so.1 Johnston also asserted two claims under New York state law.
    We assume the parties’ familiarity with the underlying facts, procedural history, and
    specification of issues for review, to which we refer only as necessary to explain our decision to
    affirm.
    DISCUSSION
    We review de novo an order granting summary judgment and “resolv[e] all ambiguities and
    draw[] all permissible factual inferences in favor of the party against whom summary judgment is
    sought.” Burg v. Gosselin, 
    591 F.3d 95
    , 97 (2d Cir. 2010) (internal quotation marks omitted). We
    affirm when “there is no genuine dispute as to any material fact and the movant is entitled to
    judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of fact is “genuine” if “the evidence is
    such that a reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun &
    Bradstreet Corp., 
    482 F.3d 184
    , 202 (2d Cir. 2007) (internal quotation marks omitted). However,
    “conclusory statements or mere allegations [are] not sufficient to defeat a summary judgment
    motion.” Davis v. New York, 
    316 F.3d 93
    , 100 (2d Cir. 2002).
    A. Due Process Claim
    In April 2010, Orangetown demoted Johnston from Automotive Mechanic II to Automotive
    Mechanic I in response to disciplinary charges relating to his supervision of the Orangetown Sewer
    Garage. Johnston contends that his demotion violated his due process rights. Although defendants
    concede that Johnston had a cognizable property interest in his position, they argue that Johnston
    received sufficient process.
    In determining what process was due Johnston, the parties disagree as to whether the
    deprivation occurred as a result of established governmental procedures or was based on “random
    and unauthorized acts” by government officers. The Supreme Court has noted the importance of
    this distinction in determining what process must be accorded. See Hudson v. Palmer, 
    468 U.S. 517
    ,
    1 Johnston does not appeal the dismissal of his claim that defendants retaliated against him for the exercise of
    his constitutionally protected speech in violation of the First Amendment.
    2
    532 (1984); Parratt v. Taylor, 
    451 U.S. 527
    , 541 (1981); see also Hellenic Am. Neighborhood Action Comm. v.
    City of New York, 
    101 F.3d 877
    , 880 (2d Cir. 1996).
    However, we need not resolve this dispute here. Instead, as in Locurto v. Safir, we assume this
    point in Johnston’s favor for purposes of this appeal. 
    264 F.3d 154
    , 172–73 (2d Cir. 2001). Even
    under those circumstances, we conclude that Johnston received adequate process: He was afforded
    a pre-termination hearing at which he was represented by counsel and he was given the chance to
    put forth arguments and evidence as to why he should not be terminated. Thereafter, he had the
    opportunity to avail himself of the review process pursuant to New York C.P.L.R. Article 78. Even
    considering Johnston’s claim that witnesses at the hearing lied, this is sufficient to satisfy the
    requirements of the Due Process Clause. See Mathews v. Eldridge, 
    424 U.S. 319
    , 335 (1976); see also
    Rivera-Powell v. N.Y.C. Bd. of Elections, 
    470 F.3d 458
    , 466 (2d Cir. 2006).
    We have held that even where deprivations of property occur as a result of established
    governmental procedures, “[a]n Article 78 proceeding . . . constitutes a wholly adequate post-
    deprivation hearing for due process purposes.” 
    Locurto, 264 F.3d at 175
    . Although Johnston
    apparently declined to pursue his challenge in an Article 78 proceeding, the existence of that
    proceeding confirms that state law afforded him adequate process to defeat his constitutional claim.
    See 
    Rivera–Powell, 470 F.3d at 467
    –68; see also 
    id. at 468
    n.12 (“[A] procedural due process violation
    cannot have occurred when the governmental actor provides apparently adequate procedural
    remedies and the plaintiff has not availed himself of those remedies.” (internal quotation marks
    omitted)).
    We therefore conclude that the District Court was correct in granting summary judgment in
    favor of defendants on Johnston’s due process claim.
    B. Section 1983 Conspiracy Claim
    Johnston’s accompanying § 1983 conspiracy claim was properly dismissed, because he did
    not show any violation of his constitutional rights. A § 1983 conspiracy claim “will stand only
    insofar as the plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right.”
    Singer v. Fulton Cnty. Sheriff, 
    63 F.3d 110
    , 119 (2d Cir. 1995); see also 
    id. (holding that
    “a plaintiff
    alleging a § 1983 conspiracy claim must prove an actual violation of constitutional rights”).
    C. State Law Claims
    Because the District Court dismissed all of Johnston’s federal claims, it declined to exercise
    supplemental jurisdiction over his state law claims and dismissed them without prejudice. We
    conclude that the District Court did not abuse its discretion in so doing, and so we affirm its order
    dismissing those state claims without prejudice. See Purgess v. Sharrock, 
    33 F.3d 134
    , 138 (2d Cir.
    1994).
    3
    CONCLUSION
    We have reviewed the record and considered all of Johnston’s arguments on appeal, and find
    them to be without merit.
    For the reasons set out above, we AFFIRM the March 25, 2013, judgment of the District
    Court.
    FOR THE COURT,
    Catherine O’Hagan Wolfe, Clerk of Court
    4