Opinion
21-1308
03-10-2022
ROBERT KELLY, JR., Plaintiff-Appellant, v. CITY OF MOUNT VERNON, NEW YORK, THE CITY OF MOUNT VERNON URBAN RENEWAL AGENCY, RICHARD THOMAS, individually and in his capacity as former Mayor of the City of Mount Vernon, New York, Defendants-Appellees, LAWRENCE PORCARI, individually and in his capacity as former Corporation Counsel for the City of Mount Vernon, New York, FRANK ACOCELLA', THE ACOCELLA LAW GROUP, PC, acting as an agent for the City of Mount Vernon, New York, Defendants.
FOR PLAINTIFF-APPELLANT: Robert Kelly, Jr., pro se, New York, NY. FOR DEFENDANT-APPELLEE THOMAS: Daniel Gomez-Sanchez, Littler Mendelson, P.C., Melville, NY. FOR DEFENDANTS-APPELLEES CITY OF MOUNT VERNON and CITY OF MOUNT VERNON URBAN RENEWAL AGENCY: Julie P. Plitt, Oxman Law Group, PLLC, White Plains, NY.
UNPUBLISHED OPINION
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 10th day of March, two thousand twenty-two.
Appeal from a judgment of the United States District Court for the Southern District of New York (Halpern, J.).
FOR PLAINTIFF-APPELLANT: Robert Kelly, Jr., pro se, New York, NY.
FOR DEFENDANT-APPELLEE THOMAS: Daniel Gomez-Sanchez, Littler Mendelson, P.C., Melville, NY.
FOR DEFENDANTS-APPELLEES CITY OF MOUNT VERNON and CITY OF MOUNT VERNON URBAN RENEWAL AGENCY: Julie P. Plitt, Oxman Law Group, PLLC, White Plains, NY.
PRESENT: JOHN M. WALKER, JR., MICHAEL H. PARK, MYRNA PEREZ, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Robert Kelly, proceeding pro se, sued, among others, the City of Mount Vernon (the "City"), the City of Mount Vernon Urban Renewal Agency (the "URA"), and Richard Thomas, the former mayor of the City. He alleged violations of his Fourteenth Amendment rights under 42 U.S.C. § 1983, conspiracy to violate his constitutional rights under 42 U.S.C. § 1985(3), and state tort claims. According to Kelly, his claims arose from the City's prior suit against him- which was ultimately dismissed-for allegedly using his position as police commissioner to alter and delete police records. In Kelly's action against Defendants-Appellees, he sought leave to file a second amended complaint. At a November 2020 court conference, Kelly stated that he sought leave to amend to add "better case law," to withdraw one of his claims, and to remove one of the theories underlying his Fourteenth Amendment claims. App'x 118. After the district court informed Kelly that "case law should not be cited in the complaint," the parties signed a stipulation dismissing the claims Kelly sought to withdraw, thus mooting Kelly's motion for leave to amend. The district court later granted Thomas's motion for judgment on the pleadings and granted the City's and the URA's motion to dismiss, dismissing the controlling complaint with prejudice and observing that amendment would be futile. On appeal, Kelly does not argue that the district court erred by granting the motions for judgment on the pleadings or to dismiss. Instead, he asserts for the first time that the district court erred by failing to grant his motion to amend the complaint. See generally Appellant's Br. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
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) (internal quotation marks omitted). "This is particularly so when the pro se plaintiff alleges that h[is] civil rights have been violated." Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012) (quoting Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008)). It is also "a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal." Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006) (cleaned up). And although we retain discretion to consider waived arguments, "the circumstances normally do not militate in favor of an exercise of discretion to address new arguments on appeal where those arguments were available to the parties below and they proffer no reason for their failure to raise the arguments below." Id. (cleaned up).
Here, although Kelly is a pro se appellant, we decline to consider his argument, raised for the first time on appeal, that the district court failed to rule on his motion to amend the complaint. See, e.g., Eustache v. Home Depot U.S.A., Inc., 621 Fed.Appx. 86, 88 (2d Cir. 2015). Kelly could have objected to the district court's disposition of the motion to amend through the parties' stipulation, either at the November 2020 conference or at any time thereafter, but he never did so. Indeed, he had no reason to do so because the voluntary stipulation generally reflected his motion seeking amendment to dismiss one of his claims and his intentions as expressed at the conference. Moreover, Kelly provides no reason why he did not raise his objection below. Thus, Kelly waived any argument on appeal related to amendment. See Bogle-Assegai, 470 F.3d at 504.
In addition, because Kelly does not argue on appeal that the district court erred by granting judgment on the pleadings and dismissing his claims, he has waived any challenge to the merits of the district court's orders. See Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998) (Despite affording pro se appellants "some latitude in meeting the rules governing litigation," we "normally will not[] decide issues that a party fails to raise in his or her appellate brief.").
We have considered all of Kelly's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.