15-1062 Kelly v. New York Stat e Civil Service Commission 

## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A 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 25 th day of January, two thousand sixteen. PRESENT: ROSEMARY S. POOLER, PETER W. HALL, SUSAN L. CARNEY, Circuit Judges.

_____________________________________ James F. Kelly, Plaintiff-Appellant , v. 15-1062 New York State Civil Service Commission, Jerry Boone, in His Official Capacity as President of the New York State Civil Service Co mmission, Patricia A. Hite, in Her Official Capacity as Past Acting President of th e New York State Civil Service Commission, Caroline W. Ahl, in Her Official Capacity as Commissioner of the New York State Civil Service Commission, Dennis J. Hanrahan, in His Official Capacity as Commissioner of the New York State Civil Service Commission, Defendants-Appellees .

_____________________________________ FOR PLAINTIFF-APPELLANT: James F. Kelly, pro se, Hyde Park, NY. FOR DEFENDANTS-APPELLEES: Eric T. Schneiderman, Attorney General of the State of New York; Barbara D. Underwood, Solicitor General; Anisha S. Dasgupta, Deputy SolicitorGeneral; Philip V. Tisne, Assistant Solicitor General, New York, NY. Appeal from a judgment and order of the Unite d States District C ourt for the Southern District of New York (Briccetti, J .).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment and orde r of the district court are AFFIRMED

. Appellant James F. Kelly, proceeding pro se, a ppeals from the district court’s judgment dismissing his claims that the defendants viol ated 42 U.S.C. § 1983, the Age Discrimination in Employment Act of 1967 (“ADEA”), and state law by enforcing New York Civil Service Law § 58(1)(a), and its order denying reconsideratio n of that decision. Although Kelly’s notice of appeal explicitly identifies only the district court’s order denying reconsideration, his intent to appeal both the dismissal and reconsideration orders is clear from the face of his notice of appeal. New Phone Co. v. City of N.Y. , 498 F.3d 127, 131 (2d Cir. 2007). A ccordingly, we consider his challenge to both orders. We assume the part ies’ familiarity with the underlying facts, the procedural history of the cas e, and the issues on appeal. We review de novo the grant of a motion to di smiss for lack of subject matter jurisdiction or for failure to state a claim. Fink v. Time Warner Cable , 714 F.3d 739, 740-41 (2d Cir. 2013); Moser v. Pollin , 294 F.3d 335, 339 (2d Cir. 2002). Denial s of motions for reconsideration are reviewed for abuse of discretion. Schwartz v. Liberty Mut. Ins. Co. , 539 F.3d 135, 150 (2d Cir. 2008). We liberally construe Kelly’s pro se subm issions as raising the st rongest arguments they suggest. Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 474 (2d Cir. 2006). Upon review, we conclude that the district co urt correctly determined that the Eleventh Amendment shields the defendants from Kelly’s Section 1983 and ADEA claims. The Eleventh Amendment precludes suits against states and stat e agencies unless the state expressly waives its3 immunity or Congress abrogates that immunity. CSX Transp., Inc. v. N.Y. State Office of Real Prop. Servs. , 306 F.3d 87, 94-95 (2d Cir. 2002). “The reach of the Eleventh Amendment has . . . been interpreted to extend beyond the terms of its text to bar suits in fede ral courts against states, by their own citizens or by foreign sovereigns.” State Emps. Bargaining Agent Coal. v. Rowland , 494 F.3d 71, 95 (2d Cir. 2007) (internal quotati on marks omitted). The Commission is an instrumentality of New York State. See Leitner v. Westchester Cmty. Coll. , 779 F.3d 130, 134 (2d Cir. 2015). Although suits against state officers act ing in their official capacities that seek prospective injunctive relief to prevent a continui ng violation of federal law are authorized under Ex Parte Young , 209 U.S. 123 (1908), the district court correctly concluded that Young does not apply here. The state officer against whom pr ospective relief is sought “must have some connection with the enforcement of the act” that violates federal law. Id. at 154; see also In re Dairy Mart Convenience Stores, Inc. , 411 F.3d 367, 372-73 (2d Cir. 2005). That requirement is not satisfied here. In addition, Young does not allow a federal court to issue an injunction for a violation of state law. Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 106 (1984). We have considered all of Ke lly’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment and order of the district court. Each side to bear its own

costs. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk