Filed: Jun. 23, 2016
Latest Update: Mar. 02, 2020
Summary: 14-3874-cv Terry v. Inc. Vill. of Patchogue In the United States Court of Appeals For the Second Circuit _ AUGUST TERM 2015 No. 14-3874-cv HENRY R. TERRY, Plaintiff-Appellant, v. INCORPORATED VILLAGE OF PATCHOGUE, INCORPORATED VILLAGE OF PATCHOGUE BOARD OF TRUSTEES, PAUL V. PONTIERI, JR., IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, BRIAN EGAN, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, STEPHEN J. MCGIFF, IN HIS OFFICIAL CAPACITY, GERALD J. CREAN, IN HIS OFFICIAL CAPACITY, JOSEPH P. DEAN, IN HIS O
Summary: 14-3874-cv Terry v. Inc. Vill. of Patchogue In the United States Court of Appeals For the Second Circuit _ AUGUST TERM 2015 No. 14-3874-cv HENRY R. TERRY, Plaintiff-Appellant, v. INCORPORATED VILLAGE OF PATCHOGUE, INCORPORATED VILLAGE OF PATCHOGUE BOARD OF TRUSTEES, PAUL V. PONTIERI, JR., IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, BRIAN EGAN, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, STEPHEN J. MCGIFF, IN HIS OFFICIAL CAPACITY, GERALD J. CREAN, IN HIS OFFICIAL CAPACITY, JOSEPH P. DEAN, IN HIS OF..
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14‐3874‐cv
Terry v. Inc. Vill. of Patchogue
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2015
No. 14‐3874‐cv
HENRY R. TERRY,
Plaintiff‐Appellant,
v.
INCORPORATED VILLAGE OF PATCHOGUE, INCORPORATED VILLAGE OF
PATCHOGUE BOARD OF TRUSTEES, PAUL V. PONTIERI, JR., IN HIS
OFFICIAL AND INDIVIDUAL CAPACITIES, BRIAN EGAN, IN HIS OFFICIAL
AND INDIVIDUAL CAPACITIES, STEPHEN J. MCGIFF, IN HIS OFFICIAL
CAPACITY, GERALD J. CREAN, IN HIS OFFICIAL CAPACITY, JOSEPH P.
DEAN, IN HIS OFFICIAL CAPACITY, LORI B. DEVLIN, IN HER OFFICIAL
CAPACITY, WILLIAM HILTON, IN HIS OFFICIAL CAPACITY, JOHN A.
KRIEGER, IN HIS OFFICIAL CAPACITY, JOHN DOE, IN HIS/HER OFFICIAL
CAPACITY, PETER SARICH, AND JAMES NUDO,
Defendants‐Appellees.*
________
Appeal from the United States District Court
for the Eastern District of New York
________
* The Clerk of Court is directed to amend the official caption to conform
with the caption above.
SUBMITTED: JUNE 14, 2016
DECIDED: JUNE 23, 2016
________
Before: NEWMAN, CABRANES, and CARNEY, Circuit Judges.
________
Plaintiff‐appellant Henry R. Terry, proceeding pro se, appeals
a September 10, 2014 judgment of the United States District Court
for the Eastern District of New York (William F. Kuntz, Judge)
dismissing his action against the Incorporated Village of Patchogue,
the Village’s Board of Trustees, and a host of individuals. Plaintiff’s
claims, which arise out of events spanning more than a decade,
principally concern the Village’s allegedly wrongful interference
with his business interests and its maintenance of a police force that
plaintiff believes to be unauthorized by law. Reviewing the District
Court’s dismissal de novo, see Gelboim v. Bank of Am. Corp., ‐‐‐ F.3d ‐‐‐,
2016 WL 2956968, at *5 (2d Cir. May 23, 2016), we affirm.
________
Henry R. Terry, Key West, FL, pro se, for Plaintiff‐
Appellant.
Melissa L. Holtzer and Brian S. Sokoloff, Sokoloff
Stern, LLP, Carle Place, NY, for Defendants‐
Appellees.
________
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JOSÉ A. CABRANES, Circuit Judge:
Plaintiff‐appellant Henry R. Terry (“plaintiff”), proceeding
pro se, appeals a September 10, 2014 judgment of the United States
District Court for the Eastern District of New York (William F.
Kuntz, Judge) dismissing his action against the Incorporated Village
of Patchogue (the “Village”), the Village’s Board of Trustees, and a
host of individuals (jointly, “defendants”). Plaintiff’s claims, which
arise out of events spanning more than a decade, principally concern
the Village’s allegedly wrongful interference with his business
interests and its maintenance of a police force that plaintiff believes
to be unauthorized by law. Reviewing the District Court’s dismissal
de novo, see Gelboim v. Bank of Am. Corp., ‐‐‐ F.3d ‐‐‐, 2016 WL 2956968,
at *5 (2d Cir. May 23, 2016), we affirm.
To begin, we note that plaintiff’s principal brief fails to
address adequately the merits of most—arguably all—of the claims
dismissed by the District Court. An appellant’s brief must contain,
among other elements, an argument section setting forth the
“appellant’s contentions and the reasons for them, with citations to
the authorities and parts of the record on which the appellant
relies.” Fed. R. App. P. 28(a)(8)(A). Although we accord filings
from pro se litigants a high degree of solicitude, even a litigant
representing himself is obliged to set out “identifiable arguments” in
his principal brief. Donofrio v. City of New York, 563 F. App’x 92, 93
(2d Cir. 2014) (summary order); see LoSacco v. City of Middletown, 71
F.3d 88, 93 (2d Cir. 1995). Plaintiff’s filing largely fails to do so. For
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instance, plaintiff’s complaint alleges at length that defendants
committed fraud under state law by wrongfully charging that
properties he owned were in violation of the Village’s zoning and
fire codes, see Verified Am. Comp. at 129‐35, Terry v. Inc. Vill. of
Patchogue, No. 2:09 Civ. 2333 (WFK) (GRB) (E.D.N.Y. Apr. 1, 2013),
ECF No. 79; if this is mentioned at all in plaintiff’s brief, it is in only
the most general terms, see Pl.’s Br. 9 (“Defendants‐Appellees . . .
made false statements to force Plaintiff to give up his property and
political rights.”). More is required of even a pro se party.1
To the extent that plaintiff has adequately argued the merits of
any claims on appeal, those arguments must be rejected. For a
variety of reasons, the complaint fails to state a claim on which relief
can be granted. For example, even if we were to read plaintiff’s brief
to raise contentions related to his claim that the Village committed
fraud in connection with his attempt to purchase a property referred
to as the “Weinstein Estate,” see Verified Am. Comp. at 138‐41, Terry
v. Inc. Vill. of Patchogue, No. 2:09 Civ. 2333 (WFK) (GRB) (E.D.N.Y.
Apr. 1, 2013), ECF No. 79, he would be unable to overcome the
barrier of res judicata. Plaintiff brought an identical fraud claim in
New York state court in 2009, and the court—characterizing
plaintiff’s allegations as “prolix[ ] [and] disjointed”—dismissed it for
failure to state a claim. Terry v. Inc. Vill. of Patchogue, 886 N.Y.S.2d
72, at *4 (N.Y. Sup. Ct. Apr. 17, 2009) (unreported disposition). “We
1 The requirement that a pro se litigant set out identifiable arguments in
his briefing has special salience in this case: the complaint’s allegations run on for
1,627 paragraphs spanning 207 pages, and are not by any means easily
disentangled.
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are required to give [this] state‐court judgment the same preclusive
effect it would have in New York,” EFCO Corp. v. U.W. Marx, Inc.,
124 F.3d 394, 397 (2d Cir. 1997), and we think it clear that the New
York courts would deem it a disposition on the merits having res
judicata effect, see Feigen v. Advance Capital Mgmt. Corp., 146 A.D.2d
556, 557‐58 (N.Y. App. Div. 1st Dep’t 1989); Furia v. Furia, 116 A.D.2d
694, 695 (N.Y. App. Div. 2d Dep’t 1986) (when a complaint is
dismissed for legal insufficiency, it bars commencement of a new
action for the same relief if the new complaint fails to correct the
defects in the first).
Turning to plaintiff’s next argument, the District Court did not
“abuse its discretion” in implicitly denying plaintiff’s motion to
amend his complaint by dismissing the action while that motion was
pending. See Barani v. Dep’t of Defense, 518 F. App’x 48, 49 (2d Cir.
2013) (summary order); see also Fielding v. Tollaksen, 510 F.3d 175,
178‐179 (2d Cir. 2007). Although district judges should, as a general
matter, liberally permit pro se litigants to amend their pleadings,
leave to amend need not be granted when amendment would be
futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). The new
allegations plaintiff wished to assert—for instance, claims that he
suffered discrimination on the basis of national origin and perceived
disability, see S.A. 10‐11; Pl.’s Br. 20—are merely conclusory. In the
circumstances, the District Court had no reason to permit
amendment.
We are likewise unconvinced by plaintiff’s remaining
arguments. Plaintiff devotes a good deal of attention, for example,
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to the contentions that his case should have been handled in the
Central Islip courthouse, not the Brooklyn courthouse, and that his
case was not assigned to a judge randomly. But plaintiff’s
arguments are premised on violations of the Eastern District’s
Guidelines for the Division of Business Among District Judges,
which expressly state that they “shall not be deemed to vest any
rights in litigants or their attorneys.” See also United States v.
Schlesinger, 261 F. App’x 355, 360 (2d Cir. 2008) (summary order).
Thus, even if plaintiff were to make out a violation of those
Guidelines—which he has not—it would not entitle him to the relief
he seeks.
CONCLUSION
We have reviewed all of plaintiff’s arguments on appeal and
find them to be without merit. We thus AFFIRM the September 10,
2014 judgment of the District Court.
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