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affirming dismissal of claim without right to re-plead where "it would have been futile to give Appellant leave to amend her complaint because she had already amended it twice."
Summary of this case from Bondar v. LASplash CosmeticsOpinion
No. 08-4879-cv.
December 8, 2009.
Appeal from the United States District Court for the Southern District of New York (Scheindlin, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment and order of the district court are AFFIRMED.
Luisa C. Esposito, West Hempstead, NY, pro se.
Douglas Langholz (Anthony Daniel Grande, on the brief), Morgan Melhuish Abrutyn, New York, N.Y. (for appellees Arthur Pollack, Conrad Pollack, Brian J. Isaac, and Pollack, Pollack, Isaac DeCicco, LLP).
Patrick J. Walsh, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Michael S. Belohlavek, Senior Counsel, on the brief) for Andrew M. Cuomo, Attorney General of the State of New York, New York, N.Y. (for appellees State of New York, Office of Court Administration of the Unified Court System, Thomas J. Cahill, Naomi Goldstein, and Albert S. Blinder.
Diane Krebs (Thomas B. Coppola, on the brief), Gordon Rees LLP, New York, N.Y. (for appellee Allen H. Isaac).
Elizabeth I. Freedman, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel, on the brief) New York, N.Y. (for appellees City of New York, Raymond Kelly, Robert Arbuiso, and Adam Lamboy).
Traycee Ellen Klein (Eric B. Topel, on the brief), Epstein Becker Green, P.C., New York, N.Y. (for appellee Harvey Gladstein Partners LLC).
PRESENT: AMALYA L. KEARSE, ROBERT A. KATZMANN and DEBRA ANN LIVINGSTON, Circuit Judges.
SUMMARY ORDER
Appellant Luisa C. Esposito, pro se, appeals from the judgment of the United States District Court for the Southern District of New York (Scheindlin, J.), dismissing her claims under 42 U.S.C. § 1983 and state law, and from the district court's order denying her motion for reconsideration pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
"We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6) [of the Federal Rules of Civil Procedure], construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). We review a district court order denying a Rule 60(b) motion for abuse of discretion. See Transaero, Inc. v. La Fuerza Aerea Boliviano, 162 F.3d 724, 729 (2d Cir. 1998).
To succeed on a § 1983 claim, a plaintiff must show that the defendants, acting under the color of state law, deprived her of a constitutional right. Rodriguez v. Phillips, 66 F.3d 470, 473 (2d Cir. 1995). In the instant case, we find that Appellant failed to show any deprivation of a constitutional right. First, with regard to her attempts to secure Isaac's arrest and criminal prosecution, "a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973); see also United States v. Grundhoefer, 916 F.2d 788, 792 (2d Cir. 1990). Private citizens have no legally cognizable interest in attorney disciplinary proceedings. See Application of Phillips, 510 F.2d 126, 126 (2d Cir. 1975) (per curiam). Likewise, Appellant's First Amendment claim based on access to the same proceedings fails because she had no cognizable right to participate in them.
Further, a governmental failure to protect an individual from private violence does not implicate a victim's due process rights unless the state actor created or enhanced the danger to the victim, which Appellant did not allege. See Okin v. Vill. of Cornwall-On-Hndson Police Dep't, 577 F.3d 415, 427-28 (2d Cir. 2009) (citing DeShaney v. Winnebago Comity Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993)) (overruled on other grounds by Leatherman v. Tarrant Co. Narcotics Intelligence Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993)). Nor aid Appellant allege any facts to suggest that she was intentionally discriminated against based on her gender or that she suffered any treatment disparate from similarly situated individuals that would support a "class-of-one" equal protection theory. See Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006). Accordingly, Appellant's complaint failed to state a claim and was properly dismissed. Moreover, it would have been futile to give Appellant leave to amend her complaint because she had already amended it twice. Sec Hayden v. County of Nassau, 180 F.3d 42, 53-54 (2d Cir. 1999). Finally, we find that the district court did not abuse its discretion in denying Appellant's Rule 60(b) motion because she demonstrated no "exceptional circumstances" that would justify setting aside the dismissal of her complaint. Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008).
We have carefully considered Appellant's remaining claims and find them to be without merit.
For the foregoing reasons, the judgment and order of the district court are AFFIRMED.