04-5747-cv

D y n o v. V i l l a g e of Johnson C i t y

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER

JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND FEDERAL RULE OF

APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH

PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX

OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)." UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN

ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE

AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/), THE PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE

A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO

COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST

INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS

ENTERED.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,

on the day of May, two thousand and seven.

Present:

HON. ROGER J. MINER,

HON. ROBERT A. KATZMANN,

Circuit Judges,

HON. J. GARVAN MURTHA, District Judge.* Thomas Lamont Dyno, Plaintiff-Appellant, v. No. 04-5747-cv Village of Johnson City, Harry G. Lewis, Mayor of the Village of Johnson City, Defendants-Appellees, Daniel W. Green, adjacent property owner, Mary Lou Green, adjacent property owner, Defendants.

THOM AS LAMONT DYNO, pro se.

Appearing for Appellant: Appearing for Appellee: OLI V ER N. BLAISE, III, Binghamton, New York.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the September 27, 2004, judgment of the district court is AFFIRMED, and the appeal is DISMISSED as to the October 13, 2006 order.

Plaintiff-appellant Thomas Lamont Dyno appeals from the September 27, 2004 judgment and October 13, 2006 order denying a motion to set aside the judgment, of the United States District Court of the Northern District of New York (Mordue, C.J.). We assume the parties' familiarity with the underlying facts of the case, its procedural history, and the arguments on appeal.

Because Dyno filed a timely notice of appeal from the district court's September 27, 2004, final judgment, that judgment, and all prior interlocutory orders, are reviewable in this Court. See Fed. R. App. P. 4(a)(1). The appeal from the district court's October 13, 2006, order denying Dyno's motion to set aside the judgment, however, is not reviewable in this Court becaus e the November 20, 2006 notice of appeal is untimely, as it was filed more than 30 days after the entry of the order. See Fed. R. App. P. 4(a)(4)(B)(ii).

As an initial matter, by failing to raise any challenge to the district court's dismissal of the complaint against the Greens or to include any argument regarding the Greens' status as state actors, Dyno has abandoned his claims against the Greens by failing to raise them on appeal. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). With respect to the Village of Johnson City and Mayor Lewis, we review a district court's dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) de novo. See Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998). "[I]n ruling on a Rule 12(b)(6) motion, the district court is required to accept the material facts alleged in the complaint as true, and not to dismiss `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S.

41, 45-46 (1957) (citation omitted)). To succeed on a 42U.S.C. § 1983 claim, a plaintiff must show that a defendant, acting under the color of state law, deprived the plaintiff of a constitutional right. See Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982); Rodriguez v. Phillips, 66 F.3d 470, 481 (2d Cir. 1995). "`[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983,'" and can occur by direct participation in the alleged violation, a supervisory official's failure to remedy a wrong, a supervisory official's creation of a policy or custom under which unconstitutional acts occurred, or through a supervisory official's gross negligence in managing his subordinates.

Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986) (quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). In order to impose liability under § 1983 on a municipality or municipal agency, a plaintiff must prove that a "municipal custom or policy" caused the violation of his constitutional rights. See Dwares v. New York, 985 F.2d 94, 100 (2d Cir. 1993). "A single incident alleged in a complaint, especially if it involved only actors below the policymaking level, generally will not suffice to raise an inference of the existence of a custom or policy." Id.

Because Dyno does not distinguish between the actions of Defendant Lewis and the Village and, with respect to Lewis, argues only that Lewis, as mayor, was responsible for imposing the municipal custom or policy, the claim turned on Dyno's ability to show a municipal custom or policy. The district court properly found that Dyno had failed to allege an officially adopted custom or policy because Dyno did not make any allegation that it was the official policy of the Village to refuse to enforce zoning regulations or to rely on allegedly improperly obtained state court judgments. Dyno argued only that the Village misinterpreted the relevant zoning provisions and subsequently relied on a state court judgment to affirm those misinterpretations and deny his complaints about the Greens' actions. To the extent that Dyno contends that he should be allowed to amend his complaint, he has failed to demonstrate that he would be able to amend the complaint to state a claim that would survive dismissal. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 76 (2d Cir. 1998).

Moreover, the district court could have denied the claims on res judicata grounds because a state court judgment will have a preclusive effect on a subsequently filed § 1983 action where the § 1983 claims could have been raised in the state court action. See Collard v. The Inc. Vill. of Flower, 759 F.2d 205, 207 (2d Cir. 1985). In Collard, we held that a § 1983 suit alleging constitutional violations based on a municipality's rulings on zoning issues was barred where the municipality's decisions had previously been challenged in Article 78 proceedings in state court because the constitutional claims could have been brought in state court. Id. at 206-07. Collard is indistinguishable from the instant case, as Dyno clearly could have raised his claims regarding the Village's alleged municipal policy in his Article 78 proceedings.

For the foregoing reasons, we AFFIRM the district court's September 27, 2004 judgment and DISMISS the appeal as to the October 13, 2006 order.

FOR THE COURT: Thomas Asreen, Acting Clerk By: Oliva M. George, Deputy Clerk

* The Honorable J. Garvan Murtha, United States District Judge for the District of Vermont, sitting by designation.