Summary
declining to reach res judicata arguments when affirming dismissal of due process claim
Summary of this case from Quire v. City of New YorkOpinion
No. 06-3230-cv.
November 15, 2007.
Appeal from the United States District Court for the Southern District of New York (Victor Marrero, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of dismissal entered on the docket on June 9, 2006, is AFFIRMED.
Kenneth E. Gordon, New York, NY, for Appellant.
Susan Paulson, Assistant Corporation Counsel (Francis F. Caputo, Assistant Corporation Counsel, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Appellee.
SUMMARY ORDER
Dennis Sindone, a former Deputy Inspector of the New York City Police Department, appeals the dismissal of his complaint, which charged defendants with denial of due process in the conduct of disciplinary hearings leading to his termination. See 42 U.S.C. §§ 1983, 1988. We review a judgment of dismissal de novo, evaluating all facts in the light most favorable to the plaintiff. See, e.g., Port Washington Teachers' Ass'n v. Bd. of Educ. of Port Washington Union Free Sch. Dist. 478 F.3d 494, 498 (2d Cir. 2007). We assume the parties' familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
Sindone asserts that the district court erred in concluding that dismissal of his complaint was compelled by Locurto v. Safir, 264 F.3d 154, 174-75 (2d Cir. 2001). The terminated municipal employee plaintiffs in Locurto, like Sindone, claimed that their department disciplinary proceedings were infected by bias stemming from a supervisory predetermination to terminate their employment. Id. at 171. This court concluded that, even if these allegations were true, the Locurto plaintiffs failed to state a due process claim in light of the availability of subsequent Article 78 review of their terminations. Id. at 174.
Sindone submits that Locurto should not control his case because the court's due process holding was based on the Locurto plaintiffs' concession that Article 78 afforded them "a full adversarial hearing before a neutral adjudicator," id., a conclusion he disputes. Sindone misreads Locurto. While plaintiffs in that case did not dispute the adequacy of the Article 78 proceeding, this court independently reviewed the procedures afforded by that state law, see id. at 174-75 (observing that Article 78 permits petitioners "to submit affidavits and other written evidence, and where a material issue of fact is raised, have a trial of the disputed issue, including constitutional claims" and to pursue "claims that the agency adjudicator was biased and prejudged the outcome"), and concluded that an Article 78 proceeding "constitutes a wholly adequate post-deprivation hearing for due process purposes," id. at 175 (collecting cases reaching same conclusion); accord Munafo v. Metro. Transp. Auth., 285 F.3d 201, 213-14 (2d Cir. 2002).
Accordingly, because Sindone was able to challenge his termination in an Article 78 proceeding, albeit unsuccessfully, we conclude, as did the district court, that he cannot state a due process claim in light of Locurto. The fact that Sindone himself chose not to assert his bias claim in his Article 78 proceeding does not mean that he suffered any due process deprivation. See Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996). In light of this holding, we need not reach defendants' argument that res judicata offers an alternative ground for affirmance.
Accordingly, the judgment of dismissal is AFFIRMED.