Opinion
19-1084
11-02-2020
Bob W. Gibbs, Plaintiff-Appellant, v. Sgt. Gorleski, formerly Sgt. on shift, Chief of Albany Police, Albany Police Dept., P.O. McGee, formerly John Does 1-12, City of Albany, P.O. Cohen, formerly John Does 1-12, Masters, formerly John Does 1-12, P.O. Kitonyi, formerly John Does 1-12, P.O. Zalatan, formerly John Does 1-12, P.O. Seward, formerly John Does 1-12, P.O. Miftari, formerly John Does 1-12, Defendants-Appellees.
FOR PLAINTIFF-APPELLANT: Bob W. Gibbs, pro se, Schenectady, NY. FOR DEFENDANTS-APPELLEES: Abigail W. Rehfuss, The Rehfuss Law Firm, P.C., Latham, NY.
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 2nd day of November, two thousand twenty. PRESENT: JON O. NEWMAN, ROBERT A. KATZMANN, JOSEPH F. BIANCO, Circuit Judges. FOR PLAINTIFF-APPELLANT: Bob W. Gibbs, pro se, Schenectady, NY. FOR DEFENDANTS-APPELLEES: Abigail W. Rehfuss, The Rehfuss Law Firm, P.C., Latham, NY.
Appeal from a judgment of the United States District Court for the Northern District of New York (Hurd, J.; Stewart, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Bob W. Gibbs, proceeding pro se, appeals from the district court's judgment dismissing his 42 U.S.C. § 1983 complaint. Mr. Gibbs alleged that, in 2012, officers from the Albany Police Department violated his constitutional rights when they subjected him to a physical altercation that left him with injuries and scars. After issuing warnings to Mr. Gibbs over the course of three years that failure to prosecute his case or abide by court orders might result in dismissal, the district court invited the defendants-appellees to move for dismissal in October 2018 and then dismissed the suit in March 2019 for failure to prosecute under N.D.N.Y. Local Rule 41.2. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. Because Mr. Gibbs has failed to raise and thus waived any argument relevant to the district court's dismissal of his case for failure to prosecute, we affirm the judgment.
Although "we liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest," McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (per curiam), pro se appellants nonetheless must comply with Fed. R. App. P. 28(a), which "requires appellants in their briefs to provide the court with a clear statement of the issues on appeal," Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998) (per curiam). Thus, despite affording pro se litigants "some latitude in meeting the rules governing litigation, . . . we need not, and normally will not, decide issues that a party fails to raise in his or her appellate brief." Id.; see also LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995) ("[W]e need not manufacture claims of error for an appellant proceeding pro se . . . .").
Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.
Here, Mr. Gibbs does not even obliquely raise any argument related to whether the district court properly dismissed his complaint for failure to prosecute, and has thus waived any challenge to this aspect of the district court's judgment. See Gerstenbluth v. Credit Suisse Sec. (USA) LLC, 728 F.3d 139, 142 n.4 (2d Cir. 2013). Instead, he argues only that we should rule for him on the merits of his overall claims regarding alleged constitutional violations stemming from the 2012 incident. He also seeks camera footage of that event and summary judgment and claims that defendants are not entitled to qualified immunity. Since none of those arguments remotely bears on the reasons for the district court's order of dismissal, we affirm.
We remind the district court, however, that when contemplating dismissing a plaintiff's case for failure to prosecute, it must consider "(1) the duration of the plaintiff's failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal." Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). While the district court's failure to do so here was not ultimately relevant, "a decision to dismiss stands a better chance on appeal if the appellate court has the benefit of the district court's reasoning." Id. --------
We have considered all of Mr. Gibbs' arguments and found in them no grounds for reversal. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk