18-3596
James v. John Jay College of Criminal Justice

                                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
9th day of September, two thousand nineteen.

Present:    ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
                        Circuit Judges.1
_____________________________________________________

TERRELL JAMES,

                                   Plaintiff-Appellant,

                          v.                                               18-3596-cv

JOHN JAY COLLEGE OF CRIMINAL JUSTICE,
NEIL STEWART, DONALD V. GRAY, DIRECTOR,
OFFICE OF LEGAL COUNSEL, ANTHONY BRACCO,
DIRECTOR OF FACILITIES, AT JOHN JAY COLLEGE,
ANNE GOON, ADMINISTRATIVE SUPERINTENDENT,
RAJENDRA SINGH, DIRECTOR OF HUMAN RESOURCES,

                        Defendants-Appellees.
_____________________________________________________




1
 Because the third judge originally assigned to this panel recused from this case, the remaining
two judges issue this order in accordance with Second Circuit Internal Operating Procedure E(b).
Appearing for Appellant:        Lennox S. Hinds, New York, N.Y.

Appearing for Appellee:         David Lawrence III, Assistant Solicitor General (Barbara D.
                                Underwood, Solicitor General, Judith N. Vale, Senior Assistant
                                Solicitor General, on the brief), for Letitia James, Attorney
                                General, State of New York, New York, N.Y.

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

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

        Terrell James appeals from the November 21, 2018 judgment of the United States District
Court for the Southern District of New York (Cote, J.) granting the defendants’ motion to
dismiss. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

         James argues on appeal that the district court abused its discretion by dismissing his first
amended complaint with prejudice, rather than providing him an opportunity to voluntarily
withdraw the amended complaint. Alternatively, James argues that it was legal error for the
district court to grant defendants’ motion to dismiss for failure to state a claim, even in the
absence of timely opposition to that motion.

        Defendants treat the dismissal here as made pursuant to Federal Rule of Civil Procedure
41(b), which authorizes a court to dismiss an action “if the plaintiff fails . . . to comply with . . . .
a court order.” However, the record does not reflect that the district court dismissed the
complaint pursuant to Rule 41(b). Instead, both the district court’s order of November 20, 2018
and the judgment entered on November 21, 2018 indicate that the district court granted the
defendants’ motion to dismiss. That motion was brought based on Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction against defendant City University of
New York and Rule 12(b)(6) for failure to state a claim against any defendant.

         Because James did not timely file opposition, the motion to dismiss was unopposed.
However, the lack of opposition does not, without more, justify dismissal. See McCall v. Pataki,

, 322-23 (2d Cir.2000). “[T]he sufficiency of a complaint is a matter of law that the
district court is capable of determining based on its own reading of the pleading and knowledge
of the law.” Goldberg v. Danaher, 

, 183-84 (2d Cir. 2010) (internal quotation
marks and alterations omitted). Where a district court “appears to have dismissed the complaint
solely on the ground that [plaintiff] did not respond to the motion,” then “[d]ismissal on that
basis [is] error.” 

.

         The state fails to address this argument at all, instead taking the position that the
dismissal was based on James’s failure to timely follow the district court’s filing deadlines. That
is a fair reading of the endorsement order on the letter seeking reconsideration, but not the reason
for dismissal. Alternatively, the State urges us to decide the motion to dismiss in the first



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instance. We decline the invitation, and remand for the district court to (1) clarify the ground for
dismissing the complaint; and (2) if necessary, decide the defendants’ motion to dismiss based
on the merits.

        Accordingly, the judgment of the district court hereby is VACATED and REMANDED
for further proceedings consistent with this order.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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