20

- 3560

- pr Richardson v. City of N .Y.



## 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 NO TATION “ 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2
New York, on the 2 3 r d d a y of J u n e , two thousand twenty

- one

. 3

4

PRESENT: 5

SUSAN L. CARNEY

, 6

JOSEPH F. BIANCO

, 7 Circuit Judge s. * 8

____________________________________ ______ 9

10 Dewayne Joaquin Richardson

, 11

12 Plaintiff

- Appellant

, 13

14

v. 20

- 3560 15

16 City of New York, 17

18 Defendant

- Appellee

, 19

20

21

22

New York City Police Department, 30th Precinct, 23
Police Officer John Doe, 1, Police Officer John 24
Doe, 2, Police Officer John Doe, 3, Police Detective 25 Ericks Rodriguez, Shield #4675, Police Detective 26 Carlos Pagan, Sergeant Wilson Quiles, Shield # 27
4067, 28

* Judge Richard J. Sullivan has recused himself from consideration of this matter. Pursuant to Second Circuit Internal Operating Procedure E(b), the matter is being decided by the two remaining members of the panel.2 Defendants

. † 1

2

3

4

5

FOR PLAINTIFF

- APPELLANT: Dewayne Joaquin Richardson

, 6

pro se
, Bronx

, NY

. 7

8

FOR DEFENDANTS

- APPELLEES: Jeremy W. Shweder, Susan 9 Paulson, of counsel, for James 10 E. Johnson, Corporation 11 Counsel of the City of New 12 York, New York, NY. 13

14

Appeal from a judgment of the United States District Court for the Southern District of 15

New York ( Engelmayer

, J

. ; Lehrburger

, M.J. ). 16

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 17

DECREED that the September 29, 2020 judgment of the district court is AFFIRMED

. 18

Dewayne Richardson, pro se, brings this suit under 42 U.S.C. § 1983

, alleging that he was 19

unlawfully arrested and m aliciously prosecuted in New York state court for robbery charges that 20

were later dismissed . The district court construed the complaint as asserting claims against three 21

New York City (the “City”) Police Department officers and the City itself. Although the City 22

was served with process

, the individual officers were not and never appeared in th is action. 23

Following discovery, the C ity moved for summary judgment

. Over Richardson’s objections, the 24

district court adopted the magistrate judge’s recommendation to grant summary judgment

. 25

Richardson now appeals. We assume the parties ’ familiarity with the underlying facts, the 26

procedural history of the case, and the issues on appeal

, to which we refer only as necessary to 27

† The Clerk of Court is directed to amend the caption as set forth above.3 explain our decision to affirm

. 1

We review a decision granting summary judgment de novo , “resolv[ing] all ambiguitie s 2

and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t , 706 3

F.3d 120, 126

– 27 (2d Cir. 2013) (per curiam). 4

As an initial matter, we do not consider Richards on’s new arguments on appeal as to why 5

he did not serve the indiv idual officer s because he did not make the se arguments in the district 6

court. See Harrison v. Republic of Sudan , 838 F.3d 86, 96 (2d Cir. 2016) (“It is a well

- established 7

general rule that an appellate court will not consider an issue raised for the first time on appeal.” 8

(internal quotation marks and brackets omitted)) . In the City’s answer to the second amended 9

complaint, it notified Richardson that, because he had not served the individual officers , the City 10

was the only defendant in th e case. The record also suggests that the district court informed 11

Richardson of the service issue at a n initial conference

. Richardson , however, did not addre ss th e 12

service issue in his opposition to the City’s motion for summary judgme nt

, his objections to the 13

m agistrate judge’s report and recommendation , or at any other point in the district court 14

proceedings

. Accordingly, Richardson has waived his challenge to the dismissal of these claims 15

against the individual officers for failure to serve

. W e affirm th is d ismissal. See Fed. R. Civ. P. 16

4(m) (“If a defendant is not served within 90 days after the complaint is filed, the court

. . . must 17

dismiss the action without prejudice against that defendant or order that service be made within a 18

specified time. ”). 19

We also affirm t he district court ’s grant of summary judgment to the City. “ It is well 20

established that under § 1983, local governments are responsible only for their own illegal acts. 21

They are not vicariously liable under § 1983 for their employees ’ act ions.” Outlaw v. City of 224 Hartford , 884 F.3d 351, 372 (2d Cir. 2018) (internal quotation marks and ellips i s omitted). A 1

local government is liable under § 1983 only if a plaintiff can show that “ he suffered the denial of 2

a constitutional right that was ca used by an official municipal policy or custom. ” Frost v. N.Y.C. 3

Police Dep ’ t , 980 F.3d 231, 257 (2d Cir. 2020) (internal quotation marks omitted) (citing Monell 4

v. Dep’t of Soc. Servs. , 436 U.S. 658 (1978)) ; see also Lucente v. C ounty of Suffolk , 980 F.3d 284, 5

297 (2d Cir. 2020)

. 6

At summary judgment, the City argued that there is an absence of evidence that an y 7

unlawful municipal policy or custom led to Richardson’s arrest and prosecution. Indeed, 8

Richardson did not allege such a pol icy or custom existed, and failed to counter the City’s assertion 9

with evidence in the record. Richardson’s arguments instead pertained to the individual officers’ 10

conduct and the circumstances of his arrest

. In his brief to this Court, Richardson also d oes not 11

argue that the City ha d an unlawful policy or custom

. B ecause the City cannot be vicariously 12

liable for the individual officers’ actions, but only for its own unlawful policy or custom, we affirm 13

the grant of summary judgment to the City. 14

We have considered Richardson ’s remaining arguments on appeal and find in them no 15

basis for reversal. Accordingly, we AFFIRM the judgment of the district court. 16

FOR THE COURT: 17

Catherine O ’ Hagan Wolfe, Clerk of Court 18