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‐ 942

Colliton v. Bunt



### 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 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 16 th day of January, two thousand

eighteen.

PRESENT:

DENNIS JACOBS,

REENA RAGGI,

CHRISTOPHER F. DRONEY,

Circuit Judges.

___________________ __________________

James Patrick Colliton,

Plaintiff

‐ Appellant,

v. 17

‐ 942

Kelly Bunt, in Individual and Official

Capacities, Jeffrey Walraven, in2 Individual and Official Capacities,

Timothy Meester, in Individual and

Official Capacities,

Defendants

‐ Appellees,

Information Verification Services, Inc.,

Dutchess County Office of Probation and

Community Corrections, Family Services,

Inc., Louis Criscella, Brian Doyle,

Margaret Calista, Carla Tesoro, Mary Ellen

Still,

Defendants.

___________________ __________________

FOR PLAINTIFF

‐ APPELLANT: James Patrick Colliton, pro se,

Wappingers Falls, NY.

FOR DEFENDANTS

‐ APPELLEES: David L. Posner, McCabe & Mack

LLP, Poughkeepsie, NY, for Jeffrey

Walraven and Timothy Meester.

Jonathan M. Bernstein, Goldberg

Segalla LLP, Albany, NY, for Kelly

Bunt.

Appeal from an order of the United States District Court for the Southern

District of New York (Seibel, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is AFFIRMED

.

Appellant James Patrick Colliton, a former lawyer appearing pro se,

appeals from the district court’s December 27, 2016 order dismissing his 42 U.S.C.

§ 1983 complaint. Colliton sued individuals and organizations involved in3 administering his probation and sex offender treatment. The first amended

complaint alleged (inter alia) that the defendants had violated his Fifth

Amendment privilege against self

‐ incrimination by requiring him to comply with

mandatory polygraph examinations. The district court dismissed that claim sua

sponte on November 5, 2015. The third amended complaint alleges that the

defendants had violated Colliton’s First Amendment rights to practice his religion

and needlessly imposed sex offender treatment. In opposition to the defendants’

motions to dismiss the third amended complaint, Colliton submitted an affidavit

containing new factual assertions, and requested leave to amend his complaint a

fourth time. By order on December 27, 2016, the court declined to consider

Colliton’s affidavit and granted the motions to dismiss. The court denied leave

to amend unless Colliton filed a formal motion by January 2017 addressing

specific issues. Colliton did not file the motion and, instead, appeals to this

Court. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

With respect to the November 2015 Order, we lack jurisdiction to review

the district court’s sua sponte dismissal of the Fifth Amendment polygraph claim

because the notice of appeal designated only the December 2016 Order (granting

the defendants’ motions to dismiss) as being challenged on appeal. See Fed. R.

App. P. 3(c)(1)(B) (a notice of appeal must “designate the judgment, order, or part

thereof being appealed”); Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756

F.3d 73, 93 (2d Cir. 2014). Because Colliton is a former lawyer, he is not entitled

to any special solicitude as a pro se litigant. See, e.g., Tracy v. Freshwater, 623

F.3d 90, 101

‐ 02 (2d Cir. 2010).

In any event, the claim fails on the merits. “[W]e have held that a

condition requiring polygraph tests for defendants convicted of sex crimes does

not violate the right against self

‐ incrimination as long as the supervisee retains

the right to challenge in a court of law the use of incriminating statements as

violations of his Fifth Amendment rights.” United States v. Ramos, 658 F.3d 120,

126

‐ 27 (2d Cir. 2012). Nothing in the record indicates that Colliton would not

have had such a right if defendants had charged him with parole violation and

urged an adverse inference from his refusal to submit to a polygraph test.4 Accordingly, we identify no error in the district court’s dismissal of the Fifth

Amendment polygraph claim.

With respect to the December 2016 Order, we conclude that the district

court properly dismissed Colliton’s remaining claims. We review the district

court’s grant of a motion to dismiss for failure to state a claim de novo, “accepting

all factual allegations as true and drawing all reasonable inferences in favor of the

plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d

561, 566 (2d Cir. 2016). We review the district court’s denial of leave to amend

for abuse of discretion. Anderson News, L.L.C. v. American Media, Inc., 680

F.3d 162, 185 (2d Cir. 2012).

The district court did not err when it declined to consider Colliton’s

affidavit submitted in opposition to the defendants’ motions to dismiss since,

generally, courts cannot consider new factual assertions in an affidavit submitted

in opposition to a motion to dismiss. See Faulkner v. Beer, 463 F.3d 130, 134 n.1

(2d Cir. 2006). Moreover, it did not abuse its discretion by denying leave to

amend, given that Colliton had already amended his complaint three times, made

no formal motion to amend despite being given an opportunity to do so, did not

submit a proposed amended complaint, and provided no justification for waiting

to seek amendment. See Yerdon v. Henry, 91 F.3d 370, 378 (2d Cir. 1996). A

district court may deny leave to amend “for good reason, including futility, bad

faith, undue delay, or undue prejudice to the opposing party.” TechnoMarine

SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (quoting McCarthy v. Dun &

Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007)). The district court based its

decision on these factors, and required Colliton to address them if he made a

formal motion seeking leave to file a fourth amended complaint.

We have considered all of Colliton’s remaining arguments and find them to

be without merit. Accordingly, we AFFIRM the order of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk