13-3352-cv
DeMartino v. State 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
5th day of December, two thousand fourteen.

Present:    ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
            RICHARD C. WESLEY,
                        Circuit Judges.
____________________________________________________

THOMAS DEMARTINO, FRANK DEMARTINO,

                                   Plaintiffs-Appellants,

                  v.                                                  13-3352-cv

STATE OF NEW YORK, TOWN OF HUNTINGTON,
INTERNAL REVENUE SERVICE, STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE,

                        Defendants-Appellees.1
__________________________________________

Appearing for Appellants:          Bryan Ha, White Plains, N.Y.

Appearing for Appellees:           David Lawrence III, Assistant Solicitor General (Eric T.
                                   Schneiderman, Attorney General of the State of New York,
                                   Barbara D. Underwood, Solicitor General, Michael S. Belohlavek,
                                   Senior Counsel, on the brief) New York, N.Y., for Appellees the
                                   State of New York and State of New York Commissioner of
                                   Taxation and Finance.



        1
            The Clerk of the Court is directed to amend the caption as above.
                                Kathryn Keneally, Assistant Attorney General (Loretta E. Lynch,
                                United States Attorney for the Eastern District of New York,
                                Brooklyn, N.Y.; Teresa E. McLaughlin, Damon W. Taaffe, Tax
                                Division, Department of Justice, on the brief), Washington, D.C.,
                                for Appellee the Internal Revenue Service.


Appeal from the United States District Court for the Eastern District of New York (Feuerstein,
J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Thomas DeMartino and Frank DeMartino appeal from the June 28, 2013 judgment of the
United States District Court for the Eastern District of New York (Feuerstein, J.) dismissing their
pro se complaint without affording them leave to amend. We assume the parties’ familiarity with
the underlying facts, procedural history, and specification of issues for review.

        “[L]eave to amend should be freely granted when ‘justice so requires.’” Pangburn v.
Culbertson, 

, 70 (2d Cir. 1999). “This relaxed standard applies with particular force
to pro se litigants.” 

se complaint is to be read liberally, and should not be dismissed
without granting leave to amend at least once when such a reading gives any indication that a
valid claim might be stated.” 

“This rule applies with particular force
where the plaintiff alleges civil rights violations or where the complaint is submitted pro se.”
Chance v. Armstrong, 

, 701 (2d Cir. 1998) (emphasis omitted). “When the denial
of leave to amend is based on a determination that amendment would be futile, a reviewing
court conducts a de novo review.” Nielsen v. Rabin, 

, 62 (2d Cir. 2014) (internal
quotation marks omitted).

         A plaintiff must state “enough facts to state a claim to relief that is plausible on its face,”
that is, the plaintiff must “plead[] factual content that allows the court to draw the reasonable
inference” that the accused entity engaged in the alleged conduct. Ashcroft v. Iqbal, 

, 678 (2009). An amendment to a pleading will be futile if a proposed claim could not
withstand a motion to dismiss pursuant to Rule 12(b)(6).

        On appeal, the DeMartinos do not challenge the district court’s dismissal of the claims
against the Internal Revenue Service, and we find no error in the district court’s dismissal of
those claims. Moreover, we find no error in its dismissal of their claims asserted under the
Confrontation Clause, as the proceedings at issue were civil in nature and thus do not implicate
the Confrontation Clause. See Jenkins v. McKeithen, 

, 427 (1984); see also Golden
Living Ctr. v. Sec’y of Health & Human Servs., 

, 427-28 (6th Cir. 2011)
(administrative hearing on violations of Medicaid/Medicare patient care regulations does not
implicate the Confrontation Clause). We also find no error in the district court’s dismissal of
any claims arising under Section 1983 as time barred.

       Finally, the district court properly dismissed plaintiffs’ due process claims brought in
connection to the New York State Department of Labor’s administrative hearings. These claims

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are barred by the doctrine of collateral estoppel. The DeMartinos had a full and fair opportunity
to litigate identical claims in an Article 78 proceeding, the outcome of which was affirmed by the
Appellate Division, Second Department. That the New York Court of Appeals denied leave to
appeal is immaterial. See, e.g., Fuchsberg & Fuchsberg v. Galizia, 

, 110-11 (2d
Cir. 2002) (“Discretionary denial by the New York Court of Appeals of a party’s motion for
leave to appeal . . . is not equivalent to the absence of an opportunity to appeal, and does not
prevent the underlying decision of the Appellate Division from having collateral estoppel effect
against that party in future proceedings.”) (emphasis in the original).

       We have considered the remainder of appellants’ arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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