10-4138-cv
    Dibbs v. Mazzarelli


                               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 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 21st day of May, two thousand twelve.

    PRESENT:
                JON O. NEWMAN,
                CHESTER J. STRAUB,
                GERARD E. LYNCH,
                      Circuit Judges.
    _____________________________________

    STEPHEN DIBBS,
                                Plaintiff-Appellant,

                          v.                                                10-4138-cv

    ANGELA MAZZARELLI, et al.,
                      Defendants-Appellees.
    _____________________________________


    FOR PLAINTIFF -APPELLANT:                          Stephen Dibbs, pro se, New York, NY.

    FOR DEFENDANTS -APPELLEES:                         Brian A. Sutherland, Assistant Solicitor General,
                                                       (Barbara D. Underwood, Solicitor General, Cecelia
                                                       C. Chang, Deputy Solicitor General), for Eric T.
                                                       Schneiderman, Attorney General of the State of
                                                       New York, New York, NY.

             Appeal from a judgment of the United States District Court for the Southern District of

    New York (John G. Koeltl, J.).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Stephen Dibbs, pro se, appeals the district court’s judgment dismissing his 42 U.S.C.

§ 1983 complaint for failure to state a claim and denying his motion for leave to amend.

       We review the challenged dismissal de novo, accepting all factual allegations in the

complaint as true, and drawing all reasonable inferences in Dibbs’s favor. See Selevan v. N.Y.

Thruway Auth., 

, 88 (2d Cir. 2009). Further, because Dibbs appears pro se,

we construe his pleadings liberally to raise the strongest arguments they suggest. See Hill

v. Curcione, 

, 122 (2d Cir. 2011). In applying those principles here, we assume

the parties’ familiarity with the facts and record of the prior proceedings, which we reference

only as necessary to explain our decision.

       After an independent review of the record, we are satisfied that the district court properly

dismissed Dibbs’s complaint seeking to challenge the constitutionality of New York Election

Law §§ 6-106, 6-124, and 6-158. Those provisions require political parties to select their

nominees for Supreme Court Justice at a convention of delegates chosen by party members in a

primary election. Under a liberal construction of his complaint, Dibbs appears to challenge those

provisions, and the entire statutory scheme of which they are a part, on the ground that they

violate his rights under the First and Fourteenth Amendments of the United States Constitution.

The district court dismissed Dibbs’s challenge in large part based on the decision of the United

States Supreme Court in New York State Bd. of Elections v. López Torres, 

 (2008),

which upheld the constitutionality of the aforementioned statutory scheme and concluded that it

did not violate the First Amendment.


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       Dibbs’s attempt to distinguish López Torres is unavailing. The Supreme Court’s broad

holding that New York’s selection of judicial nominees by convention was constitutional, see

552 U.S. at 206-07, 209, forecloses the First Amendment claim now asserted by Dibbs.

Moreover, to the extent that Dibbs raises constitutional challenges that were not squarely

addressed by the Supreme Court, such as his equal protection and due process arguments, his

pleading, which rests on legal conclusions devoid of factual support, fails to “state a claim to

relief that is plausible on its face.” See Ashcroft v. Iqbal, 

, 677-78 (2009) (internal

quotation marks omitted).

       Finally, we review the district court’s denial of Dibbs’s motion for leave to amend

for abuse of discretion, “keeping in mind that leave to amend should be freely granted when

‘justice so requires.’” Sista v. CDC Ixis N. Am., Inc., 

, 177 (2d Cir. 2006) (internal

quotations marks omitted); see also Sims v. Blot, 

, 132 (2d Cir. 2008) (explaining

that “abuse of discretion” includes errors of law). We find no such abuse of discretion. Dibbs

filed two proposed amended complaints, both of which the district court considered and neither

of which alleged legally cognizable claims. The district court therefore reasonably denied his

motion to amend on the basis of futility.

       We have considered all of Dibbs’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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