23-1148-cv

Brock v. The 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 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 22nd day of July, two thousand 

twenty-four. 

PRESENT: 

GERARD E. LYNCH,

SUSAN L. CARNEY,

STEVEN J. MENASHI,

Circuit Judges. 

_____________________________________

Mandela Brock, 

Plaintiff-Appellant, 

 v. 23-1148

The City of New York, The Avo Shopping 

Company, Eric Adams, (in his personal 

capacity), 

Defendants-Appellees, 

William DeBlasio, (in his personal 

capacity), 

 Defendant. 

_____________________________________
2 

FOR PLAINTIFF-APPELLANT: Mandela Brock, pro se, East 

Elmhurst, NY. 

FOR DEFENDANTS-APPELLEES: Melanie T. West, and Chloé K. 

Moon, for Sylvia O. HindsRadix, Corporation Counsel of 

the City of New York, New 

York, NY, for Mayor Eric 

Adams and City of New York.

Lorin A. Donnelly, Milber 

Makris Plousadis & Seiden, 

LLP, Woodbury, NY, for Avo 

Shopping Company. 

Appeal from a judgment of the United States District Court for the Southern 

District of New York (Torres, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is 

AFFIRMED. 

In late 2021, Plaintiff-Appellant Mandela Brock sued Defendants-Appellees 

New York City, Mayor Eric Adams (together, the “City Defendants”), and his 

employer, the Avo Shopping Company (“Avo”), claiming violations of the First, 

Fourth, and Fourteenth Amendments resulting from Avo’s implementation of 

New York City’s COVID-19 vaccine mandate for private employers. According to 

the operative complaint, Avo adopted the City’s vaccine mandate, requiring Brock 

either to seek a medical or religious accommodation or to be vaccinated. When

Brock did neither, Avo asked him to leave his job site. Weeks later, Brock partially 
3 

completed a religious accommodation request, but he refused to explain how the 

vaccine requirement implicated his religious beliefs. Avo then terminated Brock’s 

employment. Brock sued, seeking damages and an order of reinstatement. 

A magistrate judge recommended granting the City Defendants’ motion to 

dismiss. See Brock v. City of New York, No. 21-CV-11094, 2023 WL 5020358 (S.D.N.Y. 

Jan. 3, 2023). The district court adopted the report and recommendation over 

Brock’s objections and, after Brock failed to explain why Avo should remain in the 

suit, dismissed the claims against Avo as well. This appeal followed. We assume 

the parties’ familiarity with the facts, procedural history, and issues on appeal. 

I 

As an initial matter, Avo is not correct that we lack jurisdiction. Brock filed 

a notice of appeal within 30 days of the order dismissing the remaining defendant, 

Avo, from the case.1 That order was the final order under 28 U.S.C. § 1291, in that 

it resolved the remaining claims against the only remaining defendant. See Transp. 

Workers Union of Am., Loc. 100, AFL-CIO v. N.Y.C. Transit Auth., 505 F.3d 226, 230 

(2d Cir. 2007). 

That Brock’s notice designated the earlier order adopting the report and 

recommendation—and not the order dismissing Avo—does not affect our 

jurisdiction. Under the recently revised version of Federal Rule of Appellate

Procedure 3(c), an appeal “must not be dismissed” for “failure to properly 

designate the judgment if the notice of appeal was filed after entry of the judgment 

and designates an order that merged into that judgment”—precisely what 

1 Because the district court did not enter a separate judgment, the time to appeal did not 

begin to run until 150 days after the entry of the case-dispositive order. See Fed. R. Civ. 

P. 58(c); Fed. R. App. P. 4(a)(7)(A)(ii); Arzuaga v. Quiros, 781 F.3d 29, 33 (2d Cir. 2015). 

Nevertheless, Brock’s notice of appeal, while technically premature, was immediately 

effective when filed. See Fed. R. App. P. 4(a)(7)(B). 
4 

happened here. Fed. R. App. P. 3(c)(7); see also Fed. R. App. P. 3(c)(4) (“The notice 

of appeal encompasses all orders that, for purposes of appeal, merge into the 

designated judgment or appealable order.”); Fed. R. App. P. 3(c)(6) (“An appellant 

may designate only part of a judgment or appealable order by expressly stating 

that the notice of appeal is so limited. Without such an express statement, specific 

designations do not limit the scope of the notice of appeal.”).

II

“We review a district court’s grant of a motion to dismiss de novo, accepting 

as true all factual claims in the complaint and drawing all reasonable inferences in 

the plaintiff’s favor.” Altimeo Asset Mgmt. v. Qihoo 360 Tech. Co., 19 F.4th 145, 147 

(2d Cir. 2021) (quoting Henry v. County of Nassau, 6 F.4th 324, 328 (2d Cir. 2021)). 

To survive a motion to dismiss, a complaint must allege “sufficient factual matter, 

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “We liberally 

construe pleadings and briefs submitted by pro se litigants, reading such 

submissions to raise the strongest arguments they suggest.” Kravitz v. Purcell, 87 

F.4th 111, 119 (2d Cir. 2023) (quoting Publicola v. Lomenzo, 54 F.4th 108, 111 (2d Cir. 

2022)). Applying these standards, we agree with the district court that Brock failed 

to state a claim. 

First, Brock has not stated a claim under 42 U.S.C. § 1983 against Avo, a 

private party, because he does not adequately plead that the vaccine mandate 

compelled Avo’s conduct such that Avo was acting “under color of state law.” 

West v. Atkins, 487 U.S. 42, 48 (1988); see McGugan v. Aldana-Bernier, 752 F.3d 224, 

229 (2d Cir. 2014) (addressing how a private entity may act under color of state 

law). Brock does not explain how the “decisive step” that caused his injury arose

from the City’s mandate as opposed to Avo’s corporate policies. Nat’l Collegiate 

Athletic Ass’n v. Tarkanian, 488 U.S. 179, 192 (1998). 
5 

Second, to the extent that Brock sought to attack the vaccine mandate as 

facially invalid, we have already rejected facial First Amendment challenges to the 

vaccine mandate. See Kane v. De Blasio, 19 F.4th 152, 164-67 (2d Cir. 2021). Brock 

points to a state court decision holding that “the vaccination mandates for public 

employees and private employees are arbitrary and capricious,” Garvey v. City of 

New York, 77 Misc. 3d 585, 593 (N.Y. Sup. Ct. 2022), but that decision did not rely 

on the federal Constitution. Brock’s Fourteenth Amendment claims fare no better

because we have previously rejected such challenges too. See Kane, 19 F.4th at 167 

n.14 (rejecting an equal protection challenge); see also We the Patriots USA, Inc. v. 

Hochul, 17 F.4th 266, 293 (2d Cir. 2021) (rejecting a due process challenge). 

* * * 

 We have considered Brock’s remaining arguments, which we conclude are 

without merit. For the foregoing reasons, we affirm the judgment of the district 

court.

FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court