UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 17th day of May, two thousand and two.

PRESENT:

Hon. John M. Walker, Jr., Chief Judge, Hon. Ralph K. Winter, Hon. Guido Calabresi, Circuit Judges.

ALLEN C. DAWSON, Plaintiff-Appellant, v. No. 01-7798

CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, MICHAEL R. BLOOMBERG, Mayor of the City of New York, KATHRYN E. FREED, N.Y.C. Councilperson, CITY OF NEW YORK DEPARTMENT OF CONSUMER AFFAIRS, N.Y.P.D., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, LIEUTENANT FREEMAN, KENNETH DEAN, P.O. (1st Precinct), N.Y.P.D.

SERGEANT AHERN (PBMS), N.Y.P.D. LIEUTENANT JOHNSON (PBMS), ROBERT MORGENTHAU, Manhattan District Attorney, THE LEGAL AID SOCIETY, of New York, CAPTAIN CALLAHAN, CMDR 1st Precinct, P.O. MIKORSKI, P.O. RAMIREZ (1st Pct.), P.O. CAREY (1st Pct.), P.O. SERRAILO (1st Pct.), P.O. ORRICO (1st Pct.), P.O. SORDI (1st Pct.), P.O. DEO (1st Pct.), P.O. STILES (1st Pct.), P.O. HEFNER (1st Pct.), P.O.

WHARTON (1st Pct.), SERGEANT COLTON (1st Pct.), RAYMOND W. KELLY, Commissioner, Defendants-Appellees.

APPEARING FOR APPELLANT: ALLEN C. DAWSON (pro se), Staten Island, NY APPEARING FOR APPELLEES: KATHLEEN ALBERTON, Assistant Corporation Counsel, (Michael A.

Cardozo, Corporation Counsel of the City of New York, Larry Sonnenshein, Laurie T. Smith, on the brief), New York, NY Appeal from the United States District Court for the Southern District of New York (Thomas P. Griesa, D.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

Plaintiff-appellant Allen C. Dawson, pro se, appeals from the May 23, 2001 judgment of the United States District Court for the Southern District of New York granting defendants' motion for summary judgment, dismissing Dawson's amended complaint. In July 1997, Dawson, a black street vendor, filed a pro se complaint under 42 U.S.C. § 1983 against the City of New York, then-Mayor Rudolph Giuliani, City Councilperson Kathryn Freed, various police officers, and the New York Police Department (collectively, "the City"), claiming that the City selectively and arbitrarily enforced its street vending laws in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and the New York state constitution.

The district court granted defendants' first motion for summary judgment in February 1999. We vacated the district court's grant of summary judgment by order dated October 18, 1999, and remanded the case so that Dawson could be properly advised of the "nature and consequences" of summary judgment. See generally Irby v. N.Y. City Transit Auth., 262 F.3d 412 (2d Cir. 2001) (per curiam).

On remand, the district court granted Dawson leave to file an amended complaint, but specifically instructed him that "the amended complaint should be limited to the subject matter of selective law enforcement." Dawson's amended complaint was not so limited. Rather, it named new defendants and stated a number of new claims.1 In May 2000, defendants filed a motion for summary judgment on the amended complaint, which the district court granted by opinion and order entered May 21, 2001.

On appeal, Dawson claims that the district court erred by (1) denying him leave to freely amend his complaint and (2) granting summary judgment to the defendants. In response, defendants contend that summary judgment was proper because plaintiff failed to rebut defendants' showing that there were no genuine issues of material fact in dispute and because Dawson had provided no evidence that the police's behavior towards him was motivated by an intent to discriminate against him on the basis of race.

First, we reject Dawson's claim that the district court erred in limiting the permissible subject matter for his amended complaint. We examine a district court's denial of leave to amend a complaint for abuse of discretion. O'Hara v. Weeks Marine, Inc., F.3d , 2002 WL 483539, at *9 (2d Cir. Apr.

1, 2002). Although leave to amend should, as a general rule, be freely granted, "[w]here the amendment would involve a new cause of action . . . the district court may deny leave unless 'the original complaint gave the defendant fair notice of the newly alleged claims.'" Id. (quoting Wilson v. Fairchild Republic Co., 143 F.3d 733, 738 (2d Cir. 1998)); see also Grace v. Rosenstock, 228 F.3d 40, 54 (2d Cir. 2000) (holding that it is not an abuse of discretion for a district court to deny leave to amend where an amendment to the complaint "would unduly delay the course of proceedings by, for example, introducing new issues for discovery").

Here, Dawson's original complaint did not give the defendants fair notice of the newly alleged claims, plaintiff knew about the underlying facts that gave rise to his new claims almost three years prior to his filing of the amended complaint, and he has not offered any explanation for his lengthy delay.

Also, adding new claims after the first grant of summary judgment and appeal would have unduly delayed the proceedings. Under these circumstances, the district court's limited denial of plaintiff's request for leave to amend was a valid exercise of its discretion.

Reviewing the district court's grant of summary judgment de novo, Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212

(2d Cir. 2001), we conclude that the district court's grant of summary judgment to defendants was proper. Plaintiff has failed to establish a genuine dispute as to any material fact. See Fed.

R. Civ. P. 56(c). In response to defendants' motion for summary judgment, Dawson submitted four signed, but unsworn, witness statements and his own affidavit, which attested to the truth of his allegations and the witness statements. These submissions do not constitute actual evidence that gives rise to a dispute of material fact with respect to his allegations.

With respect to his selective enforcement claim, Dawson has not adduced evidence to show that he was treated differently compared to others similarly situated, or that such selective treatment was based on an impermissible consideration such as race. See Giordano v. City of New York, 274 F.3d 740, 750-51 (2d Cir. 2001); see also LaTrieste Rest. & Cabaret Inc. v. Vill. of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994). He has also failed to provide any actual evidence in support of his allegation, styled as a Fifth Amendment claim, that the New York licensing scheme deprived him of his "constitutional right to make a living." Accordingly, we conclude that the district court's grant of summary judgment was proper.

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

FOR THE COURT:

Roseann B. MacKechnie, Clerk by: Lucille Carr, Deputy Clerk

[1]-. Dawson's amended complaint also repeated almost everything he had alleged in his original complaint. The district court properly excluded many of these allegations since they were barred by res judicata.