Filed: Nov. 03, 2020
Latest Update: Nov. 04, 2020
20-736
McGill v. Buzzelli 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 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 3rd day of November, two thousand twenty.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
AMALYA L. KEARSE,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
CHARLES W. MCGILL,
Plaintiff-Appellant,
v. 20-736
VINCE BUZZELLI, TROY BLAKE, KATHLEEN DREW,
THOMAS W. HASSETT, CITY OF ROCHESTER,
ROCHESTER POLICE DEPARTMENT,
Defendants-Appellees. 1
_______________________________________
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The Clerk of Court for the U.S. Court of Appeals for the Second Circuit and the Clerk of Court
for the U.S. District Court for the Western District of New York are respectfully directed to amend
the official caption as shown above.
For Plaintiff-Appellant: Charles W. McGill, pro se,
Rochester, NY.
For Defendants-Appellees: No appearance.
Appeal from a judgment of the United States District Court for the Western District of New
York (Telesca, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Charles McGill, proceeding pro se, appeals the district court’s judgment
dismissing his amended complaint pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim
on which relief may be granted. McGill, who was granted in forma pauperis status, sued four
individuals, the City of Rochester (the “City”), and the Rochester Police Department (the “RPD”)
under 42 U.S.C. § 1983. He alleged that his constitutional rights were violated when his
employer—a company called T & L Automatics—fired him on false pretenses and his criminal
history was sealed or expunged against his will. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo a district court’s sua sponte dismissal of a complaint under 28 U.S.C.
§ 1915(e)(2). Zaleski v. Burns, 606 F.3d 51, 52 (2d Cir. 2010) (per curiam). Under that statute,
the district court must dismiss a complaint filed in forma pauperis if it determines that the action
“(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
To avoid dismissal, a complaint must plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). We afford a pro se litigant
“special solicitude” by interpreting a complaint filed pro se “to raise the strongest claims that it
suggests.” Hill v. Curcione,
657 F.3d 116, 122 (2d Cir. 2011) (internal alterations and quotation
marks omitted).
As a preliminary matter, McGill makes no mention on appeal of any claim related to
changes to his criminal record. Any such claims are thus abandoned, and we decline to consider
them. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (pro se litigant
abandons issue by failing to raise it in appellate brief). Moreover, while McGill reiterates his
allegations regarding his employment-related claims and argues that these allegations show that
his rights were violated, he does not address the bases for the district court’s dismissal of these
claims—i.e. that he failed to allege that three of the individual defendants acted under the color of
state law, as necessary to state a claim under § 1983; that there were no allegations at all concerning
the remaining individual defendant; that there were no allegations connecting the City or the RPD
to these employment-related claims; and that New York does not recognize a tort claim for
wrongful termination of an at-will employee. These issues, too, are thus waived. See
id.
In any event, the district court properly concluded that McGill had not stated a claim related
to his employment. McGill failed to state a § 1983 claim because he did not allege that any of the
defendants “acted under color of state law.” Velez v. Levy,
401 F.3d 75, 84 (2d Cir. 2005) (internal
quotation marks and ellipsis omitted). He alleged that some of the defendants are employees of a
business, without alleging that this business had any relationship with the government. See Am.
Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49–50 (1999) (stating that § 1983 actions do not reach
purely private conduct). And he did not make any allegations suggesting that the other defendants
were involved in his termination.
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McGill provided the district court a New York State Division of Human Rights
(“NYSDHR”) complaint and determination and an Equal Employment Opportunity Commission
right-to-sue letter with his initial complaint, suggesting that he was trying to raise a claim under
state and federal anti-discrimination statutes. But he did not include these documents in his
amended complaint, and he did not allege discrimination based on any protected ground in either
of his complaints. See 42 U.S.C. § 2000e-2(a)(1) (prohibiting discrimination based on race, color,
religion, sex, and national origin); id. § 12112 (disability); 29 U.S.C. § 623(a) (age); N.Y. Exec.
Law § 296(1)(a), (15)–(16) (“age, race, creed, color, national origin, sexual orientation, gender
identity or expression, military status, sex, disability, predisposing genetic characteristics, familial
status, marital status, or status as a victim of domestic violence” and criminal history).
Although the amended complaint included some documents related to McGill’s criminal
history, he did not allege that any party involved in his termination was aware of or motivated by
his criminal history. Even if his complaint had suggested such a claim, McGill has abandoned it
on appeal, because he does not allege discrimination on any protected ground in his appellate brief.
See LoSacco, 71 F.3d at 92–93. To the extent McGill sought damages from the NYSDHR for its
purported mishandling of his complaints, the Eleventh Amendment bars suits against it because it
is a state agency. See Baba v. Japan Travel Bureau Int’l Inc.,
111 F.3d 2, 5 (2d Cir. 1997) (per
curiam). In any event, McGill does not address any claims against NYSDHR in his appellate
brief.
Moreover, the district court properly concluded that the amended complaint did not state a
plausible state tort claim. New York does not recognize a tort claim for wrongful termination of
an at-will employee. Smalley v. Dreyfus Corp., 10 N.Y.3d 55, 58 (2008); see also Horn v. New
4
York Times, 100 N.Y.2d 85, 96 (2003) (“We have consistently declined to create a common-law
tort of wrongful or abusive discharge[.]”). No exception to this rule encompasses McGill’s claim
that the defendants refused to train him in order to create a pretext to fire him. See
Smalley, 10
N.Y.3d at 58 (“New York law is clear that absent a constitutionally impermissible purpose, a
statutory proscription, or an express limitation in the individual contract of employment, an
employer’s right at any time to terminate an employment at will remains unimpaired.” (internal
quotation marks omitted)). McGill does not challenge the district court’s decision to exercise
supplemental jurisdiction over his state claims.
Finally, the district court did not abuse its discretion in dismissing McGill’s amended
complaint without providing further leave to amend. In dismissing McGill’s first complaint, the
district court afforded him an opportunity to amend and warned that failure to cure the problems
identified in the dismissal order would result in a dismissal with prejudice. A denial of further
leave to amend under these circumstances is well within the district court’s discretion. See
TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 506 (2d Cir. 2014).
We have considered all of McGill’s 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 of Court
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