20-761-cv
Salu v. Miranda

                             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
8th day of October, two thousand twenty.

PRESENT:          DENNIS JACOBS,
                  PIERRE N. LEVAL,
                  JOSEPH F. BIANCO,
                              Circuit Judges.


ROTIMI SALU, GERARD M. LYNCH,

                               Plaintiffs-Appellants,

                        v.                                                 No. 20-761

DENISE MIRANDA, NEW YORK STATE JUSTICE
CENTER, ELIZABETH M. DEVANE, DAVID MOLIK,
MARY B. ROCCO, LOUIS P. RENZI, WESTCHESTER
MEDICAL     CENTER    HEALTH      NETWORK,
WESTCHESTER     COUNTY     HEALTH     CARE
CORPORATION,

                               Defendants-Appellees,

DIAMOND           HEALTHCARE      CORPORATION,          DENISE
DAVIS,

                               Defendants.
For Plaintiffs-Appellants:                            MICHAEL D. DIEDERICH, JR., Diederich Law,
                                                      Stony Point, NY.

For Defendants-Appellees Denise Miranda,              MARK S. GRUBE, Assistant Solicitor (Barbara
New York State Justice Center, Elizabeth              D. Underwood, Solicitor General; Anisha S.
M. Devane, David Molik, Mary B. Rocco,                Dasgupta, Deputy Solicitor General; on the
and Louis P. Renzi:                                   brief), for Letitia James, Attorney General for
                                                      the State of New York, New York, NY.

For Defendants-Appellees Westchester                  BRIAN J. CLARK (Allison B. Gotfried, on the
Medical Center Health Network and                     brief),Venable LLP, New York, NY.
Westchester County Health Care
Corporation:

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

New York (Karas, J.).

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

DECREED that the judgment of the District Court is AFFIRMED.

       Plaintiffs-appellants Rotimi Salu and Gerard Lynch (collectively, “plaintiffs”) appeal from

the February 5, 2020 judgment of the district court, dismissing their claims alleging employment

discrimination based on race and due process and equal protection violations. Plaintiffs filed this

lawsuit against Westchester Medical Center Health Network and Westchester County Health Care

Corporation (collectively, “the WMC defendants”), as well as the New York State Justice Center

for the Protection of People with Special Needs (“the Justice Center”), Denise Miranda, Elizabeth

M. Devane, David Molik, Mary B. Rocco, and Louis P. Renzi (collectively, “the Justice Center

defendants” and together with the WMC defendants, “defendants”), seeking declaratory and

injunctive relief, monetary damages, and punitive damages under 42 U.S.C. §§ 1981, 1983, 1985,

and 1986. Plaintiffs further requested that the district court exercise supplemental jurisdiction over

certain state law claims and related proceedings pursuant to Article 78 of the New York Civil

Practice Law and Rules, N.Y. C.P.L.R. § 7801 et seq. Because plaintiffs have waived many of

                                                  2
their originally pled claims on appeal (referenced in the margin below), we consider only: Salu’s

race discrimination claim against the WMC defendants, and Salu and Lynch’s due process and

equal protection claims against the Justice Center defendants. 1

        We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6) or

Rule 12(b)(1) of the Federal Rules of Civil Procedure. Smith v. Hogan, 

, 253 (2d Cir.

2015). In doing so, we accept all factual allegations in the complaint as true and “draw all

reasonable inferences in favor of the plaintiff.” Kassner v. 2nd Ave. Delicatessen Inc., 

, 237 (2d Cir. 2007). We review a district court’s decision to exercise supplemental jurisdiction

over state law claims for abuse of discretion. See Valencia ex rel. Franco v. Lee, 

,

305 (2d Cir. 2003). We assume the parties’ familiarity with the facts and the procedural history,

which we reference only as necessary to explain our decision to affirm. 2

I.      Salu’s § 1981 Race Discrimination Claims Against the WMC Defendants

        Salu is an African American who worked as a patient care technician in the adolescent

psychiatric department of the WMC. He alleges that he was jointly employed by WMC and


1
  Plaintiffs raised a number of claims before the district court, many of which they waived on appeal. See
Littlejohn v. City of New York, 

, 313 n.12 (2d Cir. 2015) (declining to consider an issue
addressed by the district court that was not argued on appeal). This includes Lynch’s claims against the
WMC defendants for race discrimination, as well as Salu’s due process, equal protection, and conspiracy
claims under 42 U.S.C. §§ 1983, 1985, and 1986 against the WMC defendants. See Maraschiello v. City
of Buffalo Police Dep’t, 

, 92 (2d Cir. 2013) (determining that “three sentences of unsupported
argument regarding” the plaintiff’s claim is insufficient to trigger our examination). Moreover, plaintiffs
concede that they “are no longer pursuing a § 1985 conspiracy claim.” Plaintiffs Reply Br. at 24 n.17.
Thus, because “a § 1986 claim must be predicated on a valid § 1985 claim,” Brown v. City of Oneonta, 

, 341 (2d Cir. 2000) (quoting Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 

, 1087
(2d Cir. 1993)), plaintiffs’ § 1986 claim is waived as well.
2
  As a threshold matter, defendants object to the Court’s consideration of Addenda A and B that were
attached to plaintiffs’ brief on appeal. Addendum A is correspondence that Salu’s attorney had with the
Justice Center. Addendum B appears to be the attorney’s self-created list of Justice Center decisions
between 2016 and 2018. We need not address defendants’ argument because consideration of plaintiffs’
Addenda are immaterial to our conclusion that their amended complaint was properly dismissed by the
district court.

                                                    3
Diamond Healthcare Corporation, which is a temporary staffing agency. As set forth in the

amended complaint, on or about May 2, 2016, Salu was supervising a patient (“Patient 1”) in the

adolescent psychiatric department when he encountered a second patient (“Patient 2”) with whom

he then became embroiled in a physical altercation, causing him to leave Patient 1 unsupervised.

The WMC defendants viewed Salu’s abandonment of Patient 1 to be a violation of their written

“one-on-one supervision” policy because he negligently failed to keep Patient 1 in full view at all

times. Am. Compl. ¶¶ 50–51. Salu concedes in the amended complaint that he left Patient 1

unsupervised when he was “enticed” into Patient 2’s hospital room, but claims his failure to return

to supervise Patient 1 was a result of being “viciously attacked” when he went into Patient 2’s

room. Am. Compl. ¶ 59. Patient 2 also accused Salu of assault.

       New York State law requires staff members at healthcare facilities serving vulnerable

individuals to report any conduct they become aware of that could constitute abuse or neglect of a

patient to the Justice Center. N.Y. Soc. Serv. Law § 491. The Justice Center’s core duties include

maintaining a statewide central register to track and investigate such allegations of abuse and

neglect by individuals who are responsible for the care of vulnerable persons. N.Y. Exec. Law

§ 552(1); N.Y. Soc. Serv. Law § 492. The WMC defendants referred the allegation of neglect of

Patient 1 and abuse with respect to Patient 2 to the Justice Center for investigation pursuant to a

mandatory reporting requirement, and suspended Salu pending the investigation. The Justice

Center determined the report of neglect of Patient 1 to be “substantiated,” and Salu’s employment

at WMC was thereafter terminated. Am. Compl. ¶ 62.

       Salu requested that the report be amended to reflect that he did not commit neglect. After

a hearing before an Administrative Law Judge (“ALJ”), the Justice Center issued a final

determination that the allegation of neglect of Patient 1 was substantiated against Salu based upon,


                                                 4
among other findings: (1) “[a]t the time of the alleged neglect, [Salu] was assigned 1:1 constant

observation of [Patient 1] due to the risk of self-mutilation and verbalized suicidal ideation,” Joint

App’x at 113; and (2) “[t]he record established, and [Salu] admitted in his police interview and in

his testimony, that while assigned 1:1 constant observation of [Patient 1], [Salu] momentarily left

[Patient 1] unsupervised in the hallway to address [Patient 2],” Joint App’x at 116. 3

          After the allegation of neglect of Patient 1 was substantiated, Salu alleges that Denise

Davis, Director of Nursing at the WMC, informed Diamond Healthcare Corporation that she did

not want Salu to continue to work at the WMC, and that Salu was subsequently terminated from

employment by Diamond. Salu asserts that the WMC defendants terminated his assignment at

WMC due to his race, and that the district court erred in concluding that he failed to establish a

plausible claim for race discrimination against the WMC defendants.

          As an initial matter, Salu improperly asserts a claim against the WMC defendants under 42

U.S.C. § 1981. “[T]he express cause of action for damages created by § 1983 constitutes the

exclusive federal remedy for violation of the rights guaranteed in § 1981 by state [actors].” Jett v.

Dallas Indep. Sch. Dist., 

, 733 (1989). Salu concedes that the WMC defendants are

state actors, yet he has inexplicably abandoned his § 1983 claim by failing to raise it in his appellate

brief. In any event, even assuming arguendo that we construe Salu’s § 1981 claim as a claim

under § 1983, see Duplan v. City of New York, 

, 621 (2d Cir. 2018), the district court

correctly concluded that the allegations in the amended complaint fail to withstand a motion to

dismiss.

          Claims for race discrimination under § 1983 are analyzed under the burden-shifting

framework outlined in McDonnell Douglas Corporation v. Green, 

(1973), which –


3
    The allegation regarding Patient 2’s assault was determined to be unsubstantiated.
                                                       5
at step one – requires a plaintiff prove the following to establish a prima facie case: (1) he is a

member of a protected class; (2) he was qualified for his position; (3) he suffered an adverse

employment action; and (4) his treatment occurred under circumstances giving rise to an inference

of discrimination. See Littlejohn v. City of New York, 

, 311 (2d Cir. 2015) (explaining

that the McDonnell Douglas framework applies to Title VII, § 1981, and § 1983 claims). At the

first stage under McDonnell Douglas on a motion to dismiss, prior to the employer’s giving of its

reason for its action, the plaintiff’s satisfaction of the prima facie requirements is facilitated by a

temporary presumption in the plaintiff’s favor, so that the plaintiff “need only give plausible

support to a minimal inference of discriminatory motivation.” See Vega v. Hempstead Union Free

Sch. Dist., 

, 84 (2d Cir. 2015) (quoting 

). Nonetheless, in

attempting to satisfy this pleading standard, “[i]t is well settled in this Circuit that a complaint

consisting of nothing more than naked assertions, and setting forth no facts upon which a court

could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6).” Martin

v. N.Y.S. Dep’t of Mental Hygiene, 

, 372 (2d Cir. 1978).

       Here, the WMC defendants concede, for purposes of this appeal, that Salu has satisfied the

first three prongs of a prima facie case of race discrimination. Thus, the issue on appeal is whether

the amended complaint contains non-conclusory allegations sufficient to support a plausible

inference of discriminatory motivation by the WMC defendants in Salu’s termination. We agree

with the district court that the amended complaint fails to satisfy the plausibility requirement.

       More specifically, Salu’s discrimination claim rests on his belief that Davis, as the Director

of Nursing, harbored racial animus and was responsible for Diamond’s decision to terminate him

after he “was determined to be guilty of statutory neglect by the Justice Center.” Am. Compl.

¶ 99. That critical allegation regarding Davis’s purported decision-making role, however, which


                                                  6
is necessary to render his race discrimination claim plausible against her and the WMC defendants,

has no factual basis to support it, but rather is simply stated in a conclusory fashion based upon

“information and belief.” See Am. Compl. ¶¶ 69–70 (“Upon information and belief, the racially

biased decision-maker was the WMC Director of Nursing, Denise Davis, RN. Upon information

and belief, Director Davis, as a WMC policy-maker and decision-maker, informed Diamond that

she did not want Mr. Salu to continue working at WMC. Diamond had no choice but to carry out

Director Davis’ command.” (emphases added)).            As the district court correctly held, these

conclusory assertions repeatedly made “upon information and belief” are insufficient to provide a

basis to conclude that the race discrimination claim is plausible.           See Citizens United v.

Schneiderman, 

, 384 (2d Cir. 2018) (“A litigant cannot merely plop ‘upon information

and belief’ in front of a conclusory allegation and thereby render it non-conclusory.”).

       Moreover, the implausible nature of Salu’s central claim – namely, that the allegedly biased

Davis was responsible for his termination – is demonstrated by Salu’s own concession in the

amended complaint that he was not terminated until the Justice Center substantiated the report of

neglect against him. See Am. Compl. ¶ 62 (“Mr. Salu was thereafter eventually terminated by his

employer after the Justice Center ‘substantiated’ . . . that he took his eyes off the patient he was

supervising, viewing this as amounting to a neglect under N.Y.S. statute.”); see also Am. Compl.

¶ 107 (“As a result, Mr. Salu was adjudicated by the Justice Center as being guilty of ‘category 3

neglect,’ which adjudication justified his job termination . . . .”). His disagreement with the Justice

Center’s conclusion does not substantiate, even to a minimal degree, his claims of discrimination

against the WMC defendants.

       In sum, the allegations fail to create a plausible inference that Salu was terminated based

upon intentional race discrimination by Davis or anyone else at WMC. Accordingly, we conclude


                                                  7
that the district court properly dismissed Salu’s race discrimination claims against the WMC

defendants.

II.     Plaintiffs’ Claims Against the Justice Center Defendants

        Both plaintiffs Salu and Lynch brought claims against the Justice Center defendants based

upon their allegation that the Justice Center conspires with private employers to violate the rights

of non-white healthcare workers. Like Salu, Lynch was terminated from his job at WMC. In

particular, Lynch was found by the Justice Center to have committed sexual misconduct towards

a female patient at WMC. Both plaintiffs assert that the Justice Center’s determination that they

had committed acts constituting neglect and/or abuse of patients entrusted to their care was based

upon racial bias and unconstitutional procedures, and led to the wrongful termination of their

employment at WMC. As set forth below, there are multiple grounds to affirm the district court’s

dismissal of all claims against the Justice Center defendants.

        A. Eleventh Amendment Immunity

        The district court concluded that the Eleventh Amendment barred plaintiffs from

proceeding in federal court on their claims for damages against the Justice Center and its officers

in their official capacities. See V.A. Office for Prot. & Advocacy v. Stewart, 

, 254

(2011) (finding that the Eleventh Amendment bars damages actions asserted against a State

“absent waiver or valid abrogation” of the State’s sovereign immunity). It is well settled that suits

against state agencies and state officers acting in their official capacities are functionally equivalent

to suits against the State. Pennhurst State Sch. & Hosp. v. Halderman, 

, 100–02 (1984).

        Here, plaintiffs seek monetary relief from a state agency – the Justice Center, and its

officers in their official capacities. But New York has not waived sovereign immunity in federal

court for damages claims. Trotman v. Palisades Interstate Park Comm’n, 

, 39–40 (2d


                                                   8
Cir. 1977). In addition, Congress did not abrogate state sovereign immunity when enacting the

statutes that form the basis for the federal claims in plaintiffs’ amended complaint. See Quern v.

Jordan, 

, 338–45 (1979) (§ 1983); Dube v. State Univ. of N.Y., 

, 594 (2d

Cir. 1990) (§ 1983); Keitt v. New York City, 

, 424 (S.D.N.Y. 2011) (§§ 1983,

1985, and 1986).

        Accordingly, we conclude that the district court correctly determined that the Eleventh

Amendment bars plaintiffs from proceeding in federal court against the Justice Center and its

officers in their official capacities for damages. 4

        B. Judicial Immunity

        Judges generally receive absolute immunity from “suits for money damages for their

judicial actions,” Bliven v. Hunt, 

, 209 (2d Cir. 2009) and from suits for injunctive

relief under § 1983 with certain exceptions not relevant here, Montero v. Travis, 

,

761 (2d Cir. 1999).

        Judicial immunity applies if (1) “the relevant action is judicial in nature” and (2) the

defendant “had jurisdiction over the subject matter before him.” Huminski v. Corsones, 

  Plaintiffs also seek to remedy the “systemic and ongoing” violations of the Justice Center, Plaintiffs Br.
at 57. Specifically, plaintiffs argue purported future harms to third parties, which would theoretically
overcome the Eleventh Amendment hurdle, given that state officers may properly be sued in their official
capacities for prospective relief under the doctrine of Ex parte Young, 

(1908). However, this
argument raises another insurmountable hurdle for plaintiffs in this particular case – namely, the prudential
standing requirements, which prohibit “plaintiffs from asserting the rights of third parties.” Montesa v.
Schwartz, 

, 195 (2d Cir. 2016). Here, plaintiffs are unable to establish that the relevant third
parties, other African-American healthcare workers, are hindered or cannot assert their own rights. See
Keepers, Inc. v. City of Milford, 

, 39 (2d Cir. 2015) (plaintiff bears the burden of establishing
prudential standing). Indeed, when the Justice Center makes a final determination that is unfavorable to a
healthcare worker, that healthcare worker can pursue judicial review through an Article 78 proceeding.
Thus, plaintiffs have no standing to seek injunctive relief to purportedly prevent future harm to third parties.
Plaintiffs also argue that they have standing to seek injunctive relief because there is a “real possibility”
that they may once again be accused of neglect or abuse and subjected to the Justice Center’s procedures.
Plaintiffs Reply Br. at 19. But plaintiffs allege no probable threat that they will again face complaints of
abuse or neglect and be subject to a Justice Center adjudication. See City of Los Angeles v. Lyons, 

, 105 (1983).
                                                       9
53, 75 (2d Cir. 2005) (quotation marks omitted). Only allegations that a defendant acted “in the

clear absence of all jurisdiction” will overcome the bar of judicial immunity. Stump v. Sparkman,

, 356–57 (1978) (quotation marks omitted).

        Here, judicial immunity bars plaintiffs’ claims against the ALJ defendants, Elizabeth

Devane, David Molik, Mary Rocco, and Louis Renzi. Plaintiffs’ only interactions with the ALJ

defendants were in their judicial capacities, as set forth by New York law. For instance, New York

law authorizes ALJs to “determine whether the findings of [a Justice Center] report should be

amended on the grounds that [the findings] are inaccurate or inconsistent” with the law. N.Y. Soc.

Serv. Law § 494(1)(a); 14 N.Y.C.R.R. § 700.6(a). ALJs Renzi and Rocco oversaw plaintiffs’

administrative hearings, and thereafter issued reports and recommendations as to whether the

findings against plaintiffs should be amended. ALJs Devane and Molik reviewed those reports

and recommendations and issued final determinations. We conclude that, for purposes of this

appeal, such actions fall squarely within the core duties “normally performed by a judge.” 

–10 (quotation marks omitted); see also Butz v. Economou, 

, 513

(1978) (“[T]he role of the modern federal hearing examiner or administrative law judge . . . is

‘functionally comparable’ to that of a judge.”).

        Therefore, the ALJ defendants are entitled to judicial immunity as their actions were

judicial in nature, and they had jurisdiction over the subject matter before them pursuant to New

York law. See 

–57 (quotation marks omitted). Plaintiffs’ allegations of

bias or misconduct are not sufficient to strip these defendants of their immunity. See Tucker v.

Outwater, 

, 932 (2d Cir. 1997) (“The cloak of [judicial] immunity is not pierced by

allegations of bad faith or malice.”). 5


5
 As to Denise Miranda, the Justice Center’s Executive Director, the district court held that she had no
personal involvement in plaintiffs’ cases, and thus did not reach whether she was entitled to qualified
                                                   10
III.    Plaintiffs’ State Law Claims

        Finally, we conclude that the district court did not abuse its discretion when it exercised

supplemental jurisdiction to dismiss certain state law claims, and declined to exercise its

supplemental jurisdiction over the Article 78 claim.

        Section 1367(a) of Title 28 grants federal courts supplemental jurisdiction over state law

claims that are part of the same case or controversy as the asserted federal claims. See 28 U.S.C.

§ 1367(a). We review a district court’s decision to exercise supplemental jurisdiction over state-

law claims for abuse of discretion, see Kolari v. New York-Presbyterian Hosp., 

, 122

(2d Cir. 2006), “considering whether judicial economy, convenience, fairness and comity require

a different result,” Finz v. Schlesinger, 

, 84 (2d Cir. 1992) (citing Carnegie-Mellon

Univ. v. Cohill, 

, 350 n.7 (1988)).

        Plaintiffs’ state law causes of action, such as the New York State Human Rights Law

(“NYSHRL”) claim, are analytically identical to some of Salu’s federal claims (namely his § 1981

claim – which we construe as a § 1983 claim – and his equal protection claim), and feature the

same allegations of discriminatory conduct as those underlying his federal discrimination,

constitutional, and due process claims. See Spiegel v. Schulmann, 

, 80 (2d Cir. 2010)

(holding that discrimination claims under the NYSHRL are subject to the same framework as the

related federal claims). Thus, the district court did not err by exercising supplemental jurisdiction

and dismissing these claims. 6


immunity. We agree with the district court’s dismissal of plaintiffs’ claims against Miranda based upon a
failure to allege any non-conclusory allegations of Miranda’s personal involvement in the final
determination of plaintiffs’ cases at the Justice Center, and we therefore also decline to address the qualified
immunity issue. See Sealey v. Giltner, 

, 51 (2d Cir. 1997) (requiring allegation of direct
personal involvement to state a § 1983 claim against a supervisory official).
6
 To the extent that plaintiffs raised their claims arising under the New York State Constitution on appeal,
we conclude that the district court properly exercised supplemental jurisdiction over those claims as well,
                                                      11
        Finally, as to the Article 78 claim, the district court did not abuse its discretion by declining

to exercise jurisdiction. See N.Y. C.P.L.R. §§ 7801, 7804(b); see also Libertarian Party of Erie

Cnty. v. Cuomo, 

, 121 (2d Cir. 2020).

        In sum, the district court did not abuse its discretion by dismissing some state law claims

and declining to exercise supplemental jurisdiction over the Article 78 claim.

                                              ***
        We have considered all of plaintiffs’ 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 of Court




and plaintiffs have waived any arguments regarding the merits of those claims that are different from their
arguments based on § 1983. See Allen v. Antal, 665 F. App’x 9, 13 (2d Cir. 2016) (“The New York State
Constitution provides a private right of action where remedies are otherwise unavailable at common law or
under § 1983.”).
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