18‐3199‐cv Nguedi v. Caulfield

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 6th day of May, two thousand twenty.

PRESENT: GUIDO CALABRESI, RICHARD C. WESLEY, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

GERARD NGUEDI,

Plaintiff‐Appellant,

v. 18‐3199

BRIAN CAULFIELD, Defendant‐Cross‐Claimant‐Appellee,

CITY OF NEW YORK, WILLIAM JOSEPH BRATTON, POLICE OFFICER JOHN DOE, #1 ‐ 9, CHRISTOPHER CARLUCCI, RAYMOND PHILLIPS, PETER SCOURTOS,

Defendants‐Cross‐Defendants‐Appellees. _____________________________________

FOR PLAINTIFF‐APPELLANT: Gerard Nguedi, pro se, Woodbridge, VA.

FOR DEFENDANT‐CROSS‐ Karen M. Lager, Marks, CLAIMANT‐APPELLEE: O’Neill, O’Brien, Doherty & Kelly, P.C., Elmsford, NY.

FOR DEFENDANTS‐CROSS‐ Tahirih M. Sadrieh, DEFENDANTS‐APPELLEES: Assistant Corporation Counsel, Scott Shorr, of counsel, for James E. Johnson, Corporation Counsel of the City of New York, New York, NY.

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

Southern District of New York (Abrams, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Appellant Gerard Nguedi, proceeding pro se, alleges that nine police officers

came to his apartment after his sister called to request a wellness check, forced

their way into his apartment, beat him without provocation, sedated him, and took

him to Bellevue hospital, in violation of Nguedi’s civil rights. On appeal, Nguedi

challenges the district court’s granting of summary judgment in favor of the City

of New York (the “City”), former New York Police Department (“NYPD”)

Commissioner William Bratton, and Nguedi’s building superintendent Brian

Caulfield on Nguedi’s civil rights claims, and its dismissal of Nguedi’s claims

against three individual police officers for failure to effect service. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal.

I. Summary Judgment

We review a grant of summary judgment de novo, “resolv[ing] all

ambiguities and draw[ing] all inferences against the moving party.” Garcia v.

3 Hartford Police Dep’t,

, 126–27 (2d Cir. 2013). “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,

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

To establish liability against the City for the acts of its employees, a plaintiff

must show that the violation of his constitutional rights was caused by an official

custom, policy, or practice. See Monell v. Dep’t of Soc. Servs.,

(1978). While Nguedi points to his own treatment as evidence of a custom, a

single case is insufficient to establish the existence of such a practice. See Mitchell

v. City of New York,

(2d Cir. 2016); Sarus v. Rotundo,

(2d Cir. 1987) (finding that there was no Monell claim where “the only relevant

evidence presented by appellees was the manner in which they themselves were

arrested”). Further, although Nguedi argues on appeal that the district court

disregarded “similar operations the NYPD had done in the past,” he adduced no

evidence regarding such operations, nor did he raise this argument before the

district court. Nguedi’s Br. at 30.

4 Nguedi’s claims against the individual defendants also lack merit. Because

Nguedi failed to present any facts of Commissioner Bratton’s “personal

involvement . . . in alleged constitutional deprivations,” which “is a prerequisite

to an award of damages under § 1983,” his claim against the Commissioner fails.

Spavone v. N.Y. State Dep’t of Corr. Servs.,

(2d Cir. 2013) (internal

quotation marks omitted); see also Colon v. Coughlin,

(2d Cir. 1995)

(“The bare fact that [a defendant] occupies a high position in the New York prison

hierarchy is insufficient to sustain [a] claim.”). In order to maintain claims against

Caulfield – Nguedi’s apartment building manager and a private citizen – Nguedi

was required to establish that Caulfield conspired with state actors. See

Ciambriello v. County of Nassau,

(2d Cir. 2002). But Nguedi points

to no evidence, apart from conclusory allegations, to support the existence of a

conspiracy or otherwise suggest that Caulfield engaged in a joint action with the

police officers to violate Nguedi’s constitutional rights. Accordingly, the district

court did not err in dismissing the claims against Caulfield.

II. Failure to Serve

We review a dismissal for failure to serve under Federal Rule of Civil

5 Procedure 4(m) for abuse of discretion. Gerena v. Korb,

(2d Cir.

2010). Here, Nguedi’s sole argument concerning the dismissal of the three named

officers for lack of service is that he was waiting to serve them until the City

identified all nine officers that Nguedi originally alleged participated in the illegal

arrest. This contention is meritless. To be sure, Nguedi previously requested

that the City provide him with the identities of the nine officers pursuant to

Valentin v. Dinkins,

(2d Cir. 1997). But after the City represented

that it could only identify three officers who matched the descriptions provided

by Nguedi, the magistrate judge ruled that the City had complied with its

obligations under Valentin and need not conduct a further search. Because

Nguedi did not appeal that ruling to the district court, he has waived his right to

object to it now. See Caidor v. Onondaga County,

, 604–05 (2d Cir. 2008).

Given the magistrate judge’s order that the City was not required to make further

efforts to identify the additional officers, we find no abuse of discretion in the

district court’s dismissal of Nguedi’s claims for failure to serve the three identified

ones.

* * *

6 We have considered all of Nguedi’s 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

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