20-1969-cv Malik v. City of New York, 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 "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 11th day of January, two thousand twenty-one.

PRESENT: GUIDO CALABRESI, REENA RAGGI, DENNY CHIN, Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

ABDUL Q. MALIK, Plaintiff-Appellant,

-v- 20-1969-cv

CITY OF NEW YORK, ERIC GONZALEZ, ESQ., DEBRA JAROSLAWICZ, ROBERT ADDONIZIO, ALBINA ZAVADSKY, GLENN P. KENNY, Defendants-Appellees,

JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JANE DOE 1, JANE DOE 2, AS EMPLOYEES OF THE KINGS COUNTY DISTRICT ATTORNEY'S OFFICE AND INDIVIDUALLY, Defendants. *

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FOR PLAINTIFF-APPELLANT: ROBERT MAHONEY (Eric Alvarez, on the brief), Norris, McLaughlin, P.A., New York, New York.

FOR DEFENDANTS-APPELLEES: ZACHARY S. SHAPIRO, Senior Counsel (Richard Dearing, Assistant Corporation Counsel, Scott Shorr, Assistant Corporation Counsel, on the brief), for James E. Johnson, Corporation Counsel of the City of New York, New York, New York.

Appeal from the United States District Court for the Eastern District of

New York (Block, J.).

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

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

Plaintiff-appellant Abdul Q. Malik appeals the district court's judgment

entered May 28, 2020, dismissing his claims against defendants-appellees the City of

New York (the "City"), Kings County District Attorney ("DA") Eric Gonzalez, former

Assistant District Attorney ("ADA") Debra Jaroslawicz, DA Investigator Glenn Kenny,

and DA Investigator Robert Addonizio (collectively, the "City defendants") and non-

* The Clerk of the Court is respectfully directed to amend the official caption to conform to the above. 2 government actor Albina Zavadsky. 1 By memorandum and order entered May 27,

2020, the district court granted motions to dismiss filed by the City defendants and

individual defendant Zavadsky . We assume the parties' familiarity with the

underlying facts, procedural history of the case, and issues on appeal.

As alleged in the complaint, from 2012 to 2015, the Kings County DA's

office investigated an alleged fraudulent scheme involving the "Vanier Organization,"

which purportedly operated medical clinics and submitted fraudulent claims to

Medicaid, Medicare, and certain healthcare organizations. Malik, a doctor, was

implicated in the scheme and was charged with fraud, larceny, and other crimes in two

indictments. Malik had read more than 10,000 diagnostic images for a company

assertedly owned by Zavadsky that was purportedly involved in the conspiracy and

was alleged to have, among other things, (1) controlled a bank account into which the

company deposited fraud proceeds and (2) billed Medicaid for services that were either

never performed or medically unnecessary. It appears, however, that Malik's signature

was forged on Medicaid reimbursement forms and checks, and the charges against

Malik were dropped, on motion of the DA's office, on November 30, 2017.

On March 30, 2018, Malik brought this action below against the City

defendants, Zavadsky, Thompson, and five John/Jane Does. On May 27, 2020, the

1 Former DA Kenneth Thompson, who passed away prior to commencement of the action, was also a defendant below. 3 district court granted the motions to dismiss, concluding that (1) Malik abandoned his

claims against Zavadsky; (2) Malik failed to state a plausible claim against Gonzalez,

Jaroslawicz, Kenny, and Addonizio because they were protected by absolute

prosecutorial immunity; and (3) the City was not liable because there was no

underlying constitutional violation and, even if there were, Malik did not plausibly

allege a Monell violation. This appeal followed.

DISCUSSION

I. Standard of Review

"We review de novo a district court's grant of a motion to dismiss

[pursuant to Federal Rule of Civil Procedure 12(b)(6)], construing the complaint

liberally, accepting all factual allegations in the complaint as true, and drawing all

reasonable inferences in the plaintiff's favor." La Liberte v. Reid,

(2d Cir.

2020) (internal quotation marks and alteration omitted).

The standard of review applicable to a district court's determination that a

party has abandoned his claims has not been settled, see Joseph v. United States,

, 13 (2d Cir. 2018) (summary order), but we need not resolve that issue here as

the result would be the same regardless of the standard we apply.

4 II. Claims Against Zavadsky 2

The district court concluded that Malik abandoned his claims against

Zavadsky because his opposition brief failed to address Zavadsky's argument that she

was not a state actor for purposes of § 1983. We agree.

Malik filed a single opposition to defendants' motions to dismiss, but he

did not make any arguments that addressed Zavadsky's motion. 3 On appeal, he argues

that we should overlook this failure because the conclusion paragraph of his brief below

read, "For all of the foregoing reasons, and based upon the Complaint, attached

Exhibits, Plaintiffs [sic] respectfully request that the Court deny Albina Zavadsky and

the Kings County Defendants' Motions to Dismiss." Dist. Ct. Dkt. No. 31 at 25. But

"[w]hen a party fails adequately to present arguments" in a brief, a court may properly

"consider those arguments abandoned," State St. Bank & Tr. Co. v. Inversiones Errazuriz

Limitada,

, 172 (2d Cir. 2004), especially "in the case of a counseled party"

where "a court may . . . infer from a party's partial opposition that relevant claims or

defenses that are not defended have been abandoned," Jackson v. Fed. Exp.,

,

2 Zavadsky, who is separately represented, has not filed an appeal brief, despite receiving notice from the Clerk of Court. Nonetheless, we may still affirm sua sponte. See, e.g., Corley v. Wittner,

, 62 & n.1(2d Cir. 2020) (summary order) (affirming order where defendants-appellees were represented on appeal but did not file opposition brief).

3 Malik raised arguments about Zavadsky's status as a government informant in response to the City defendants' motion to dismiss Count 3 for malicious prosecution. Zavadsky, however, was not named in Count 3 of Malik's complaint. 5 198 (2d Cir. 2014). Malik argued at length as to why at least parts of the City

defendants' motion should be denied, but he did not address Zavadsky's state-actor

argument, which was dispositive of the § 1983 claims against her. Accordingly, we

affirm the district court's conclusion that Malik abandoned his claims against Zavadsky.

III. Claims Against the City Defendants

The district court dismissed Malik's remaining federal claims on the

ground that the individual City defendants were protected by absolute immunity, and,

without any underlying constitutional violation, Malik had no grounds for a Monell

claim.

Prosecutors enjoy absolute immunity for "acts undertaken . . . in preparing

for the initiation of judicial proceedings or for trial, and which occur in the course of his

role as an advocate for the State," but "[a] prosecutor's administrative duties and those

investigatory functions that do not relate to an advocate's preparation for the initiation

of a prosecution or for judicial proceedings are not entitled to absolute immunity."

Buckley v. Fitzsimmons,

(1993). "In applying this 'functional approach'

to claims of absolute immunity, courts focus on 'the nature of the function performed,

not the identity of the actor who performed it.'" Bernard v. County of Suffolk,

(2d Cir. 2004) (quoting Buckley,

). This immunity thus "extends

to those performing functions closely associated with that process," including non-

lawyer employees at a district attorney's office. Hill v. City of New York,

, 660

6 (2d Cir. 1995). "An official who asserts absolute immunity from § 1983 liability

shoulders the burden of establishing the existence of immunity for the function in

question." Id.

Malik argues that absolute immunity does not apply because

(1) "Jaroslawicz was acting in her investigatory function when she attempted to, and

successfully did, harass, intimidate, and threaten Zavadsky into testifying against Malik

to the Grand Jury," Appellant's Br. at 52, and (2) "Addonizio[] and Kenny acted in

concert [with Jaroslawicz] in coercing, pressuring, and concocting Zavadsky's false

testimony," Appellant's Br. at 55. But Malik has failed to make any nonconclusory

allegations that any City defendant coerced or pressured Zavadsky into giving false

testimony. And "naked assertions devoid of further factual enhancement" to that end

will not suffice. Ashcroft v. Iqbal,

(2009) (internal quotation marks and

alteration omitted). Thus, even assuming that allegations that prosecutors and their

staff fabricated evidence were sufficient to strip those individuals of absolute immunity,

Malik has not plausibly alleged that that is what happened here. Malik has not

otherwise plausibly alleged that defendants engaged in unlawful investigatory

functions, as all of his allegations to that end stem from the conclusory assertion that

defendants coerced Zavadsky into testifying falsely. Accordingly, we affirm the district

court's conclusion that the individual City defendants are protected by absolute

immunity.

7 Because Malik has failed to plausibly allege any underlying constitutional

violation, he cannot maintain a Monell claim. See Segal v. City of New York,

(2d Cir. 2006).

IV. State Law Claims

Because it dismissed all of Malik's federal claims, the district court

properly declined to exercise supplemental jurisdiction over Malik's remaining state

law claims. See Klein & Co. Futures, Inc. v. Bd. of Trade of N.Y.,

(2d Cir.

2006) ("It is well settled that where, as here, the federal claims are eliminated in the

early stages of litigation, courts should generally decline to exercise pendent jurisdiction

over remaining state law claims.").

* * *

We have considered Malik's remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk

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