24-1051-cv Thompson v. City of New York 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 28th day of October, two thousand twenty-four.

PRESENT: DENNIS JACOBS, SARAH A. L. MERRIAM, Circuit Judges, JOHN P. CRONAN, District Judge. * __________________________________________

Eon Thompson,

Plaintiff-Appellant,

v. 24-1051-cv

City of New York; Bill de Blasio, Individually and in his Official Capacity as Mayor of New York City; Cynthia Brann, Individually and in her Official Capacity as Commissioner of Correction; Vincent Schiraldi, in his Official Capacity as Commissioner of Correction; Serena

* Judge John P. Cronan of the United States District Court for the Southern District of New York, sitting by designation. Townsend, Individually and in her Official Capacity as Deputy Commissioner of Investigations; Cynthia Lindblom, Individually and in her Official Capacity as Deputy General Counsel; Patricia Legoff, Individually and in her Official Capacity as Agency Supervisor Attorney; Shulamit Neuman, Individually and in her Official Capacity as Agency Attorney; Damon R. Storer, Individually and in his Official Capacity as Investigator; Amaurys Urena, Individually and in his Official Capacity as Investigator; Kevin F. Casey, Individually and in his Official Capacity as City Administrative Law Judge; Kara J. Miller, Individually and in her Official Capacity as City Administrative Law Judge; Jocelyn McGeachy-Kuls, Individually and in her Official Capacity as City Administrative Law Judge; Joni Kletter, Individually and in her Official Capacity as Commissioner and Chief Administrative Law Judge; Olga Statz, Individually and in her Official Capacity as General Counsel; Frank Ng, Individually and in his Official Capacity as Acting Deputy General Counsel; Andrew Rowe, Union Attorney; Corey Garcia, Union Attorney; Koehler & Isaacs LLP, Union Law Firm; Isaacs Devasia Castro & Wein LLP, Union Law Firm; Corrections Officers’ Benevolent Association, Inc., Union,

Defendants-Appellees,

Clarence Smith, Jr., Individually and in his Official Capacity as Agency Attorney; Shon Brown, Individually and in his Official Capacity as Assistant Deputy Warden,

Defendants. ** __________________________________________

** The Clerk’s Office is directed to amend the caption as reflected above.

2 FOR PLAINTIFF-APPELLANT: Eon Thompson, proceeding pro se, Brooklyn, NY.

FOR CITY APPELLEES: Melanie T. West, Chase H. Mechanick, of counsel, for Muriel Goode-Trufant, Acting Corporation Counsel of the City of New York, New York, NY.

FOR DEFENDANTS-APPELLEES Howard Wien, Isaacs Devasia ANDREW ROWE; COREY GARCIA; Castro & Wien, LLP, White Plains, KOEHLER & ISAACS LLP; AND NY. ISAACS DEVASIA CASTRO & WEIN LLP:

FOR DEFENDANT-APPELLEE James M. Moschella, Karasyk CORRECTIONS OFFICERS’ & Moschella, LLP, New York, BENEVOLENT ASSOCIATION, INC.: NY.

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

District of New York (Rochon, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the March 21, 2024, judgment is AFFIRMED.

Plaintiff-appellant Eon Thompson, a New York City corrections officer, was

charged with misconduct, and after a disciplinary hearing was assessed a penalty of “a 55

day suspension from duty without pay.” Appellant’s Br. at 5-6. He brought this action

pursuant to federal and municipal law, proceeding pro se and contending primarily that

the disciplinary hearing was defective and deprived him of his constitutional right to due

process. Thompson filed an original complaint and three amended complaints, naming a

number of defendants. The defendants moved to dismiss the Third Amended Complaint

3 (the “Complaint”), and the District Court granted each of their motions with prejudice.

On appeal, Thompson challenges only the dismissal of the claims against

defendants employed by the City of New York (the “City Defendants”). 1 The District

Court dismissed those claims on the basis of res judicata, finding that the claims arose out

of the “same factual grouping” as those Thompson brought in an earlier Article 78

proceeding decided on the merits by a New York state court. Thompson v. City of New

York, No. 1:21CV08202(JLR),

, at *10 (S.D.N.Y. Mar. 21, 2024)

(quotation marks and citation omitted). The dismissal was with prejudice, because

Thompson had already had the opportunity to amend his complaint three times. See id. at

*12. Thompson contends that he “should have been given an additional opportunity to

file an Amended Complaint.” Appellant’s Br. at 2. We assume the parties’ familiarity

with the underlying facts, the procedural history, and the issues on appeal, which we

recite only as necessary to explain our decision to affirm.

I. Res Judicata

“We review de novo the dismissal of a complaint under Rule 12(b)(6), accepting

1 The District Court also dismissed, for failure to state a claim, Thompson’s claims against several other defendants. Thompson does not challenge the dismissal of those claims, making no mention of them in his briefing. These defendants filed briefs asserting that Thompson had abandoned any claims against them, and Thompson filed no reply brief contesting those assertions of abandonment. Further, his appeal brief suggests that he had planned to dismiss the remaining defendants, if given leave to further amend his Complaint. See Appellant’s Br. at 21 (“Thompson would have sought leave to amend to cure deficiencies and to remove certain defendants that he no longer saw a clear path to continue his claims against.”). Accordingly, we find any challenge to the order of dismissal as to those defendants abandoned. See Green v. Dep’t of Educ.,

(2d Cir. 2021) (per curiam) (“[A] pro se litigant abandons an issue by failing to address it in the appellate brief.”).

4 all allegations in the complaint as true and drawing all inferences in favor of the plaintiff.

Our review of a district court’s application of res judicata is also de novo.”

TechnoMarine S.A. v. Giftports, Inc.,

(2d Cir. 2014) (citations omitted).

Because Thompson proceeds without counsel, we read his submissions liberally. See

Triestman v. Fed. Bureau of Prisons,

(2d Cir. 2006).

“[A] federal court must give to a state-court judgment the same preclusive effect

as would be given that judgment under the law of the State in which the judgment was

rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ.,

(1984). New

York courts apply res judicata if “(i) there is a judgment on the merits rendered by a court

of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a

party to the previous action, or in privity with a party who was.” People ex rel. Spitzer v.

Applied Card Sys., Inc.,

(2008); see also Pike v. Freeman,

, 90 n.14 (2d Cir. 2001) (observing “no significant difference between New York

preclusion law and federal preclusion law”).

“Article 78 proceedings differ further from plenary civil actions in that Article 78

proceedings are characterized by a limited and expedited summary procedure.” Whitfield

v. City of New York,

(2d Cir. 2024) (quotation marks and citation

omitted). Furthermore, “in an Article 78 proceeding, the court may not award damages

other than those incidental to the primary relief sought.”

(quotation marks and

citation omitted). If the petitioner seeks relief outside the scope of an Article 78

proceeding, the court may convert the Article 78 proceeding to a regular civil action, or

5 may proceed with a “hybrid” action, applying the appropriate procedures and standards to

each claim. See

.

An Article 78 proceeding can have preclusive effect: “[W]here a plaintiff in a later

action brings a claim for damages that could have been presented in a prior CPLR article

78 proceeding against the same party, based upon the same harm and arising out of the

same or related facts, the claim is barred by res judicata.” Parker v. Blauvelt Volunteer

Fire Co.,

(1999). But “the decision in a pure Article 78

proceeding” – as opposed to a hybrid proceeding – “does not bar future damages claims.”

Whitfield,

. “[J]udgment in a prior Article 78 proceeding will preclude

future damages claims only if the petitioner sought relief that could not be awarded in a

pure Article 78 proceeding and the state court took affirmative action demonstrating that

it adjudicated the proceeding as a hybrid one.”

.

The City Defendants argued before the District Court that Thompson’s prior

Article 78 action had preclusive effect as a “hybrid action.” The District Court agreed,

expressly finding that Thompson’s “previous action in State Court was not a simple

Article 78 proceeding but rather was a hybrid proceeding, seeking both Article 78 relief

and a declaration that the written designation letter was improper and not in accord with

Civil Service Law Section 75.” Thompson,

, at *10 n.4 (quotation

marks and citations omitted). The significance of this issue was made plain by the City

Defendants’ briefing in the District Court, the District Court’s decision, and the City

Defendants’ brief on appeal; Thompson has nonetheless declined to address it either

6 before the District Court or before this Court. Although we construe the filings of self-

represented parties generously, “we need not manufacture claims of error for an appellant

proceeding pro se.” LoSacco v. City of Middletown,

(2d Cir. 1995). Any

argument as to the preclusive effect of the Article 78 proceeding based on its hybrid

nature is therefore forfeited, and we do not consider it.

Thompson rests his challenge to the res judicata finding entirely on the theory that

there was no valid judgment issued in his state court proceeding. Specifically, Thompson

contends that the order issued by the state court was not actually signed by the presiding

judge, pointing to a different signature style on an (apparently unrelated) order of the

same judge from 2015. But that alleged discrepancy does nothing to undermine the

validity of the order in Thompson’s case; the 2015 order he refers to was handwritten,

and the order in his case was electronically signed. It makes no difference.

We conclude that Thompson has not provided any credible grounds on which to

contest the authenticity of the state court decision. Because that is the only aspect of the

res judicata finding he challenges on appeal, we affirm the dismissal of his claims against

the City Defendants based on res judicata.

II. Leave to Amend

“We review a district court’s denial of leave to amend for abuse of discretion,

unless the denial was based on an interpretation of law, such as futility, in which case we

review the legal conclusion de novo.” Pyskaty v. Wide World of Cars, LLC,

(2d Cir. 2017) (citation omitted). Thompson did not seek leave to amend in the

7 District Court, but he now contends that he “would have sought leave to amend to cure

deficiencies.” Appellant’s Br. at 21. Yet, he offers no specific amendments he would

make, nor does he identify the deficiencies he would cure. We find no error in the denial

of leave to amend further, particularly in light of the fact that Thompson had previously

amended the complaint three times. See, e.g., Khalil v. Pratt Inst.,

, 117

(2d Cir. 2020) (summary order) (“[T]he district court’s dismissal of the third amended

complaint with prejudice was proper because it had previously granted [plaintiff] several

opportunities to amend.”).

* * *

We have considered Thompson’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 of Court

8