Summary
holding that where provisional employee had "no property interest in the employment, there [could] can be no property interest in the procedures that follow from the employment"
Summary of this case from Mississippi Forum on Children & Family v. MississippiOpinion
No. 09-4187-cv.
June 16, 2010.
Appeal from a judgment of the United States District Court for the Southern District of New York (Sidney H. Stein, Judge.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Emmanuel Etere, pro se, Bay Shore, NY.
Drake Colley (Edward F.X. Hart, Leonard Koerner, of counsel, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Appellees.
SUMMARY ORDER
Pro se plaintiff Emmanuel Etere, a former provisional employee of the New York City Department of Corrections ("DOC"), appeals from the district court's dismissal under Fed.R.Civ.P. 12(b)(6) of his complaint pursuant to 42 U.S.C. § 1983 alleging that defendants deprived him of a property interest without due process of law by suspending him and terminating his employment. We review such a dismissal de novo, "construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). In applying this standard, we assume familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
On appeal, Etere does not pursue his claims that defendants (1) deprived him of a liberty interest without due process by damaging his prospects of future employment and (2) negligently caused him to sustain personal injury. Accordingly, we deem those claims abandoned. See Hobbs v. County of Westchester, 397 F.3d 133, 147 (2d Cir. 2005); LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995).
A plaintiff asserting a procedural due process claim under § 1983 must show that "a government entity deprived [him] of a right secured by law." Finley v. Giacobbe, 79 F.3d 1285, 1296 (2d Cir. 1996). A property interest in employment may be the subject of a due process claim only if the plaintiff has "a legitimate claim of entitlement to it." Board of Regents of State Colls, v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Such an interest is established not by the Constitution but by "existing rules or understandings that stem from an independent source such as state law-rules "Id.
Under New York law, a provisional employee "has no property rights in his position and may be lawfully discharged without a hearing and without any stated specific reason." Finley v. Giacobbe, 79 F.3d at 1297 (internal quotation marks omitted); accord Brennan v. N.Y. City Bd. of Educ., 260 F.3d 123, 130 (2d Cir. 2001). Further, because a provisional employee has "no property interest in the employment, there can be no property interest in the procedures that follow from the employment." Jannsen v. Condo, 101 F.3d 14, 16 (2d Cir. 1996).
Etere concedes that he was a provisional employee. As such, he lacked a property interest either in his employment or in any related procedural protections, such as notice of the reasons for his suspension or a pretermination hearing. Thus, Etere cannot state a claim for the deprivation of property without due process based on defendants' failure to afford him such protections. Nor can Etere state a due process claim for retaliation based on his assertion of procedural rights that he did not possess. Accordingly, his complaint was properly dismissed. We have considered Etere's other arguments on appeal, and we conclude that they are without merit. The judgment of the district court is AFFIRMED.
Because Etere's provisional employment did not entitle him to any procedural protections, we need not consider his contention that the district court erred by declining to take judicial notice of DOC regulations allegedly describing such protections.