18-3254
    Valdiviezo v. Greer


                               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 ASUMMARY 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 11th day of December, two thousand nineteen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                GUIDO CALABRESI,
                RAYMOND J. LOHIER, JR.,
                      Circuit Judges.
    _____________________________________

    Mario Valdiviezo,

                                Plaintiff-Appellant,

                          v.                                              18-3254

    Detective William Greer, Shield #1902,
    AKA William Green,
    Detective John Bolden, Shield #20025,
    Detective Kimberly Marshall,

                                Defendants-Appellees,

    City of New York, 66th Precinct,

                      Defendants.
    _____________________________________

    FOR PLAINTIFF-APPELLANT:                                Mario Valdiviezo, pro se,
                                                            Coxsackie, NY.
FOR DEFENDANTS-APPELLEES:                                     Janet L. Zaleon, Fay Sue Ng,
                                                              Corporation Counsel of the City of
                                                              New York, New York, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Matsumoto, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Mario Valdiviezo, pro se and incarcerated, sued New York City Police Department

detectives John Bolden, William Greer, and Kimberly Marshall under 42 U.S.C. § 1983 and state

law, alleging claims of false arrest and malicious prosecution. During discovery, the appellees

learned that Valdiviezo had previously brought two cases in state court against the City, stemming

from his incarceration at Riker’s Island in 2013, and that they were resolved with a settlement

agreement. The appellees located a general release signed by Valdiviezo on May 23, 2015 and

notarized by his attorney. The attorney had also signed a stipulation of discontinuance with

prejudice. The release stated in relevant part that:

       MARIO VALDIVIEZO . . . in consideration of the payment of Three Thousand
       Dollars . . . does hereby release and forever discharge the City of New York, and all
       past and present officers, . . . employees, agents, . . . and representatives of the City
       of New York . . . from any and all claims, causes of action, suits, . . . and demands
       whatsoever, known or unknown, which [Valdiviezo] had, now has or hereafter can,
       shall, or may have . . . against [the City] for, upon or by reason of any matter, cause
       or thing whatsoever that occurred through the date of this RELEASE.

Directly above the signature line, the release stated, in bold type: “THE UNDERSIGNED HAS

READ THE FOREGOING RELEASE AND FULLY UNDERSTANDS IT.”

       The district court granted summary judgment to the defendants, holding that the general

release was valid and barred his current action. It also denied leave to amend. Valdiviezo appeals.


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We assume the parties’ familiarity with the underlying facts and procedural history.

         This Court reviews a grant of summary judgment de novo, “resolv[ing] all ambiguities

and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t, 

, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only when, construing

the evidence in the light most favorable to the non-movant, ‘there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 

, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

         I.     The General Release

         “A settlement agreement is a contract that is interpreted according to general principles of

contract law.” Omega Eng’g, Inc. v. Omega, S.A., 

, 443 (2d Cir. 2005). “If a contract

is clear, courts must take care not to alter or go beyond the express terms of the agreement, or to

impose obligations on the parties that are not mandated by the unambiguous terms of the

agreement itself.” Red Ball Interior Demolition Corp. v. Palmadessa, 

, 484 (2d Cir.

1999).

         The language of the release at issue unambiguously precludes Valdiviezo from bringing

any claims that accrued before May 23, 2015 against the City or its employees. The events giving

rise to the civil rights claims in this case occurred during his arrest in February 2013, and his two

consolidated actions were filed in August 2014 and March 2015, respectively. Because the claims

Valdiviezo now asserts accrued before May 23, 2015, those claims were released as part of the

settlement agreement. Valdiviezo does not allege that the release was procured by duress,

illegality, fraud, or mutual mistake; he was represented by counsel at the time that he signed the



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release; and his signature attested to his understanding of the release’s terms.1 Consequently, his

claims are barred.2

       II.     Leave to Amend

       “We review a district court’s denial of leave to amend for abuse of discretion, unless the

denial was based on an interpretation of law, such as futility, in which case we review the legal

conclusion de novo.” Panther Partners, Inc. v. Ikanos Commc’ns, Inc., 

, 119 (2d

Cir. 2012).

       Valdiviezo asserts that the district court erred in denying him leave to amend on the

ground of undue delay because it had previously informed him, in denying his earlier motion to

amend without prejudice, that he was free to renew his motion “at any time.” Even assuming that

the district court’s comment excused Valdiviezo’s delay, the district court also correctly

concluded that amendment would be futile, an independent basis for denying the motion.




       1
           The District Court concluded that the release was valid based on the eight-factor test we
articulated in Livingston v. Adirondack Beverage Co., 

, 438 (2d Cir. 1998). We find
it unnecessary to determine whether that court should have evaluated the contract’s validity under
state or federal law because, given the particular facts of this case, we conclude that the outcome
would be the same under either standard.
       2
          Valdiviezo argues, for the first time on appeal, that the release is not enforceable
because an interpreter was not present at the time he signed it, which he contends violated N.Y.
C.P.L.R. § 2101(b). We will generally not consider an argument raised for the first time on
appeal, although we will exercise our discretion to do so “where necessary to avoid a manifest
injustice or where the argument presents a question of law and there is no need for additional fact-
finding.” Allianz Ins. Co. v. Lerner, 

, 114 (2d Cir. 2005) (quoting Sniado v. Bank
Austria AG, 

, 213 (2d Cir. 2004) (per curiam)). Resolution of this belated argument
would require fact-finding about the presence or absence of an interpreter at the time of the
signing. Moreover, we discern no manifest injustice in holding Valdiviezo to the terms of the
release. We therefore decline to consider this argument.
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       We have reviewed the remainder of Valdiviezo’s arguments and find them to be without

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk of Court




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