19-2727 Rodrigues v. Family Justice Centers

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 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: JON O. NEWMAN, ROBERT A. KATZMANN, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

NATALIE RODRIGUES,

Plaintiff-Appellant,

v. 19-2727

CITY OF NEW YORK,

Defendant-Appellee. 1 _____________________________________

For Plaintiff-Appellant: NATALIE RODRIGUES, pro se, Great Neck, NY.

For Defendant-Appellee: ANTONELLA KARLIN, Assistant Corporation Counsel (MacKenzie Fillow, on the brief), for James E. Johnson, Corporation Counsel of the City of New York, New York, NY.

1 The Clerk of the Court is directed to amend the caption accordingly.

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

New York (Oetken, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-appellant Natalie Rodrigues, pro se, brought this action against Family Justice

Centers (“FJCs”) in Queens and Manhattan, alleging discrimination, violation of equal protection

rights, violation of substantive due process rights, infliction of emotional distress, conspiracy to

violate civil rights, violation of free speech rights, and fraud—all on the basis that FJCs in Queens

and Manhattan failed to provide her with services that she requested. The district court dismissed

the complaint for failure to state a claim, but permitted Rodrigues to amend her complaint. When

she did not, the district court entered a judgment against her, from which she appealed. We assume

the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.

Rodrigues has included a proposed amended complaint in her appellate appendix and

argues that we should consider the new allegations therein. We generally do not consider claims

or issues raised for the first time on appeal. See Harrison v. Republic of Sudan,

(2d Cir. 2016). Rodrigues asserts that we should do so here, because she did not know that she

could seek from the district court an extension of time to file her amended complaint after the

deadline set by the district court had expired. However, the district court had already granted her

one extension, and Rodrigues does not explain why she believed that another extension was

impossible. Furthermore, even pro se litigants are not “exempt . . . from compliance with relevant

rules of procedural and substantive law.” Traguth v. Zuck,

(2d Cir. 1983); 2 see

2 Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes, and citations.

2 also McDonald v. Head Criminal Court Supervisor Officer,

(2d Cir. 1988)

(“[W]hile pro se litigants may in general deserve more lenient treatment than those represented by

counsel, all litigants, including pro ses, have an obligation to comply with court orders. When they

flout that obligation they, like all litigants, must suffer the consequences of their actions.”). In any

event, we have reviewed Rodrigues’ proposed allegations on appeal and find that they do not cure

the deficiencies in the operative complaint, as discussed below.

“We review de novo the dismissal of a complaint under Rule 12(b)(6) [of the Federal Rules

of Civil Procedure], accepting all factual allegations as true and drawing all reasonable inferences

in favor of the plaintiff.” Litwin v. Blackstone Group, L.P.,

(2d Cir. 2011). A

complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly,

(2007).

On appeal, Rodrigues clarifies that her claims are actually against the City of New York.

Because FJCs in Queens and Manhattan are not suable entities, see N.Y.C. Charter § 396, and,

because Rodrigues is litigating pro se, we liberally construe her action as against the City of New

York.

To the extent that the complaint can be interpreted as raising a Monell claim against the

municipality, the challenged conduct must be “pursuant to official municipal policy” or a decision

by a municipal policymaker that violates federal law. Pembaur v. City of Cincinnati,

,

477–80 (1986); Los Angeles Cnty. v. Humphries,

, 36 (2010). Here, the complaint does

not identify any city policy or decision by a policymaker that violated Rodrigues’ rights.

Accordingly, the Monell claim is not adequately pleaded.

3 Additionally and for substantially the same reasons as the ones set forth in the district

court’s careful and well-reasoned opinion and order, we hold that the complaint otherwise does

not state a claim under any other theory of liability.

We now turn to the additional allegations in the proposed amended complaint that are

meaningfully distinct from the ones already in the complaint. Upon review, we find that these new

allegations still do not state a claim upon which relief can be granted.

Discrimination and equal-protection claims. To state a discrimination claim under Title VI

of the Civil Rights Act of 1964, Rodrigues must allege that “the defendant discriminated against

[her] on the basis of [a protected class], that that discrimination was intentional, and that the

discrimination was a substantial or motivating factor for the defendant’s actions.” Tolbert v.

Queens College,

(2d Cir. 2001). To the extent that Rodrigues seeks to assert a

traditional equal-protection claim, “[t]he substantive elements of [Title VI] claims are nearly

identical to . . . parallel claims under the Equal Protection Clause.” Weiss v. City Univ. of N.Y., No.

17-cv-3557 (VSB),

, at *10 (S.D.N.Y. Mar. 18, 2019).

The proposed amended complaint alleges that, in providing its services, FJCs unlawfully

favor African-Americans, immigrants, and non-English speaking individuals over a native New

Yorker and English speaker like Rodrigues. Specifically, Rodrigues alleges that FJCs are “more

likely to service a non native English speaker 9 times out of 10 and more likely to service a non

native born resident in the United States 3 times out of 4.” App’x 30.

These allegations are based on an erroneous reading of the National Institute of Justice

report of the FJCs across the country, which Rodrigues included in the appendix and which,

accordingly, we deem incorporated into the proposed amended complaint by reference. The report

states that half of the FJCs in the country “target services to special populations,” and, out of that

4 half, 92% of the centers target non-English speaking populations, and 75% of the centers target

immigrant and refugee populations. App’x 107–08. These statistics do not necessarily support that

Rodrigues was more likely to be denied services at FJCs in Manhattan and Queens than another

African-American, non-citizen, or non-English speaking individual who was similarly situated as

she is, which is what she needs to allege in order to adequately plead the existence of discrimination

or unequal treatment. 3 For these reasons, we find that the additional allegations here do not meet

the plausibility test.

Negligent infliction of emotional distress and breach of duty of care. “Liability for a claim

that a municipality negligently exercised a governmental function turns upon the existence of a

special duty to the injured person, in contrast to a general duty owed to the public.” Coleson v.

City of New York,

(2014). The allegations in the proposed amended complaint

that FJCs have a general duty to provide assistance to her are insufficient to plead the existence of

a specific duty owed by FJCs to Rodrigues. See

(describing various ways in which a “special

relationship” may be formed). Her claim for breach of duty of care also falters for substantially

the same reason.

Free-speech claims. In her proposed amended complaint, Rodrigues alleges that she was

“disallowed” from using FJCs’ resources because of the “harsh language” she used to express “her

frustration regarding domestic violence events.” App’x 51, 53. Without any allegations of the

manner in which she was denied resources and what she actually said beyond the vague descriptor

“harsh language,” the proposed amended complaint does not plead a valid claim. Furthermore,

absent more specificity, those allegations do not plausibly establish “that there was a causal

3 For substantially the same reason, her equal protection claim based on a class-of-one theory, see Vill. of Willowbrook v. Olech,

(2000), also falls short.

5 connection between the protected speech and the adverse action,” which is a necessary element of

a First Amendment retaliation claim. Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn,

, 106–07 (2d Cir. 2001).

Common law fraud. To state a claim for fraud under New York law, Rodrigues must allege,

inter alia, “a material misrepresentation of a fact,” “justifiable reliance by the plaintiff,” and

“damages.” Eurycleia Partners, LP v. Seward & Kissel, LLP,

(2009). The

proposed amended complaint alleges that FJCs’ promotional materials and telephone greetings—

which said that anyone suffering from domestic violence could obtain assistance—were

fraudulent. Again, Rodrigues does not plausibly allege why these statements were fraudulent, how

she justifiably relied on such statements, and what harm she suffered as a result of her reliance on

these statements. Furthermore, these allegations, without particularized discussions of the

circumstances constituting the alleged fraud, do not meet the heightened pleading standard set

forth in Rule 9(b) of the Federal Rules of Civil Procedure.

We have reviewed the remainder of Rodrigues’ arguments and found in them no grounds

for reversal. For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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