11-2061

Gounden v. City of New York

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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 Daniel Patrick Moynihan United

States Courthouse, 500 Pearl Street, in the City of New York, on

the 9th day of July, two thousand twelve.

PRESENT:

ROSEMARY S. POOLER,

REENA RAGGI,

GERARD E. LYNCH,

Circuit Judges.

_____________________________________

Kris Gounden,

Plaintiff-Appellant,

v. 11-2061

Thomas Campagna, NYPD, FDNY, Fred

Doe, Fire Officer, Volunteer Fire

Department X, Volunteer X,

Defendants,

City of New York, John Doe, Police

Officer, Joseph Addabbo, Helen

Marshall, Capital Land Services,

Carmen Bretscher, Wilde, Police

Officer Sergeant, McManus, Police

Officer, West Hamilton Beach Fire

Department, Stewart Title Insurance

Company, Police Officers John Does

1-5,

Defendants-Appellees.

_____________________________________
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APPEARING FOR PLAINTIFF-APPELLANT:

Kris Gounden, pro se, 

Howard Beach, NY.

APPEARING FOR DEFENDANTS-APPELLEES:

Victoria Scalzo (Kristen M.

Helmers, William H. Vidal, on the

brief), for Michael A. Cardozo,

Corporation Counsel of the City of

New York, New York, NY.

Appeal from the judgment of the United States District Court

for the Eastern District of New York (Cogan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED. 

Plaintiff-Appellant Kris Gounden, proceeding pro se, appeals

from the district court’s April 22, 2011, Opinion and Order

dismissing his second amended complaint on the defendants’

motions to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(1) and (6). We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the

issues on appeal.

“We review dismissal of a cause of action under Fed. R. Civ.

P. 12(b)(1) or 12(b)(6) de novo.” Jaghory v. New York State

Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal of a

case for lack of subject matter jurisdiction under Rule 12(b)(1)

is proper “when the district court lacks the statutory or

constitutional power to adjudicate it.” Makarova v. United

States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a Rule
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12(b)(6) motion to dismiss, the complaint must plead “enough

facts to state a claim to relief that is plausible on its face.” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). 

We have conducted a de novo review of the record in light of

these standards and now affirm the district court’s dismissal of

Gounden’s Fifth Amendment takings claim and Fourteenth Amendment

procedural due process and equal protection claims for

substantially the same reasons set forth in the district court’s

April 11, 2011, Opinion and Order. 

With respect to Gounden’s substantive due process claim,

even if, as Gounden argues on appeal, the district court’s reason

for dismissing that claim was erroneous, we would affirm the

dismissal of that claim on other grounds. See Beal v. Stern, 184

F.3d 117, 122 (2d Cir. 1999). Specifically, “[t]o establish a

substantive due process violation, [Gounden] must [plead facts

supporting the inference] that the [City Defendants’] alleged

acts against his land were ‘arbitrary,’ ‘conscience-shocking,’ or

‘oppressive in the constitutional sense,’ not merely ‘incorrect

or ill-advised.’” Ferran v. Town of Nassau, 471 F.3d 363, 369-70

(2d Cir. 2006) (quoting Lowrance v. C.O. S. Achtyl, 20 F.3d 529,

537 (2d Cir. 1994)). This Gounden has not done. In his

complaint, he alleged that the Appellees informed him that they

were removing a boulder he had placed in a roadway he alleged was
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part of his property in order to “ensure their right to emergency

vehicle access to the properties immediately to [Gounden’s] south

and southwest.” Thus, the Appellees’ actions, far from being

“conscience-shocking,” were designed to ensure the safety of

Gounden’s landlocked neighbors, which is insufficient to

implicate his substantive due process rights. Cf. id. at 370

(concluding that a town’s paving of a road that the plaintiffs

asserted was theirs, as well as the use of that road as a turn

around for snow plows, while “incorrect or ill-advised . . . were

not so outrageous and arbitrary as to implicate the Ferrans’

substantive due process rights”).

We lack jurisdiction to consider the district court’s denial

of Gounden’s post-judgment motion pursuant to Federal Rule of

Civil Procedure Rules 60(b)and 59(e) “for relief from or

alteration of” the court’s judgment. Pursuant to Federal Rule of

Appellate Procedure 4(a)(4)(B)(ii), a party seeking “to

challenge an order disposing of” a post-judgment motion including

one brought under Rules 59 and 60, “must file a notice of appeal,

or an amended notice of appeal” within the applicable appeal

period “measured from the entry of the order disposing of the

last such remaining motion.” Here, Gounden filed his notice of

appeal challenging the district court’s initial judgment after

that judgment was entered but before the court rendered its

decision on his post-judgment motion. Once the district court
5

issued that disposition, Gounden did not file, as required by

Rule 4(a)(4)(B)(ii), a notice of appeal from that order or an

amended notice of appeal. Accordingly, we are without

jurisdiction to consider the merits of that disposition, which

includes the court’s denial of his motion to amend his complaint

and its dismissal of his Fourth Amendment claim on qualified

immunity grounds.

Additionally, on appeal, Gounden does not challenge the

district court’s reliance on qualified immunity to dismiss his

Fourth Amendment claim and therefore has waived any such

arguments. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93

(2d Cir. 1995). Accordingly, because the district court provided

an alternate ground for dismissing Gounden’s Fourth Amendment

claim that we have no jurisdiction to review, and because, even

if we had jurisdiction, Gounden does not challenge that alternate

ground on appeal, his arguments challenging the district court’s

rationale for its April 2011 dismissal of his Fourth Amendment

claim are moot. See ABN Amro Verzekeringen BV v. Geologistics

Ams., Inc., 485 F.3d 85, 94 (2d Cir. 2007) (holding that mootness

occurs where the court is “incapable of granting a judgment that

will affect the legal rights as between the parties”).

Ultimately, Gounden has attempted to recharacterize a

neighborhood property dispute as a series of constitutional

injuries. The proper forum for determining the extent of his
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property right, however, is New York state court. Indeed, as

noted at oral argument, the parties are currently litigating a

new suit in state court, which may resolve the questions that

gave rise to the present dispute. 

We have considered all of Gounden’s remaining arguments and

find them to be without merit. Accordingly, we AFFIRM the

judgment of the district court. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk