McCain v. Levitt

U.S. Court of Appeals for the Second Circuit
McCain v. Levitt, 535 F. App'x 52 (2d Cir. 2013)

McCain v. Levitt

Opinion

SUMMARY ORDER

Plaintiff-Appellant Zack McCain, proceeding pro se, appeals from August 30, 2010, March 30, 2011, August 18, 2011, and November 9, 2011, Opinions and Orders of the United States District Court for the District of Vermont (Sessions, J.) dismissing McCain’s claims against various state officials and private defendants. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

As an initial matter, “although [McCain] filed a premature notice of appeal, because the district court entered an amended final judgment before the appeal was heard and [the defendants] suffered no prejudice, the *53 jurisdictional defect has been cured.” Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 663 n. 6 (2d Cir. 2012). However, McCain does not challenge the dismissal of defendants other than Defendants-Appel-lees Levitt, Morrissey, Taylor, Straub, Graham, and, arguably, Hofmann. The Court therefore declines to review the dismissal of the other defendants. See Lore v. City of Syracuse, 670 F.3d 127, 149 (2d Cir. 2012) (“We regard as waived any challenges ... to adverse decisions that are undiscussed.”).

With respect to Defendants-Appellees, we affirm the dismissal of these parties from the case for substantially the reasons set out at length by the district court in its numerous clear and comprehensive memo-randa. We have independently reviewed the record and the parties’ arguments on appeal, and we find McCain’s arguments to be without merit.

Finally, we also deny the motion to disqualify, as McCain has not established that Judge Jacobs’s impartiality “might reasonably be questioned,” or that overseeing proceedings involving judicial misconduct complaints, including McCain’s complaint against a judge who, while sitting as a state court judge, held a status hearing in a criminal proceeding related to the instant action, gave Judge Jacobs “personal knowledge of disputed evidentiary facts concerning [this] proceeding.” See 28 U.S.C. § 455(a), (b)(1).

For the reasons set forth herein, the judgment of the district court is AFFIRMED.

Reference

Full Case Name
Zack McCAIN, Plaintiff-Appellant, v. Linda LEVITT, Sued in Her Official Capacity, Chittendon County, Marry Morrissey, Sued in Her Individual and Official Capacities of Her Administrative Functions, Jane Doe, Sued in Her Individual and Official Capacities of Her Administrative Functions, Whitney Taylor, Sued in Her Individual and Official Capacities, John Doe, Sued in His Individual and Official Capacities of His Administrative Functions, Greg Grahams, Sued in His Individual and Official Capacities, Robert Hofmann, Sued in His Individual and Official Capacities, Michael J. Straub, Sued in His Individual and Official Capacities, Darrell Graham, Individual and Official Capacities, Defendants-Appellees, City of Burlington, Brian Labarge, Sued in His Individual and Official Capacities, Jess Stewart, Sued in Her Individual and Official Capacities, James Muller, Sued in His Individual and Official Capacities, Laura R. Pezzulo, Defendants
Status
Unpublished