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 NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 23rd 3 day of June, two thousand twenty-one.

4

5 PRESENT:

6 SUSAN L. CARNEY,

7 JOSEPH F. BIANCO,

8 Circuit Judges.*

9 __________________________________________

10

11 Dewayne Joaquin Richardson,

12

13 Plaintiff-Appellant,

14

15 v. 20-3560

16

17 City of New York, 

18

19 Defendant-Appellee,

20

21

22

23 New York City Police Department, 30th Precinct, 

24 Police Officer John Doe, 1, Police Officer John 

25 Doe, 2, Police Officer John Doe, 3, Police Detective 

26 Ericks Rodriguez, Shield #4675, Police Detective 

27 Carlos Pagan, Sergeant Wilson Quiles, Shield # 

28 4067,

* 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

6 FOR PLAINTIFF-APPELLANT: Dewayne Joaquin Richardson, 

7 pro se, Bronx, NY.

8

9 FOR DEFENDANTS-APPELLEES: Jeremy W. Shweder, Susan 

10 Paulson, of counsel, for James 

11 E. Johnson, Corporation 

12 Counsel of the City of New 

13 York, New York, NY.

14

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

16 New York (Engelmayer, J.; Lehrburger, M.J.).

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

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

19 Dewayne Richardson, pro se, brings this suit under 42 U.S.C. § 1983, alleging that he was

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

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

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

23 was served with process, the individual officers were not and never appeared in this action. 

24 Following discovery, the City moved for summary judgment. Over Richardson’s objections, the 

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

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

27 procedural history of the case, and the issues on appeal, to which we refer only as necessary to 

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

1 explain our decision to affirm.

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

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

4 F.3d 120, 126–27 (2d Cir. 2013) (per curiam).

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

6 he did not serve the individual officers because he did not make these arguments in the district 

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

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

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

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

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

12 Richardson of the service issue at an initial conference. Richardson, however, did not address the 

13 service issue in his opposition to the City’s motion for summary judgment, his objections to the 

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

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

16 against the individual officers for failure to serve. We affirm this dismissal. See Fed. R. Civ. P. 

17 4(m) (“If a defendant is not served within 90 days after the complaint is filed, the court . . . must 

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

19 specified time.”).

20 We also affirm the district court’s grant of summary judgment to the City. “It is well 

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

22 They are not vicariously liable under § 1983 for their employees’ actions.” Outlaw v. City of 
4

1 Hartford, 884 F.3d 351, 372 (2d Cir. 2018) (internal quotation marks and ellipsis omitted). A 

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

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

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

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

6 297 (2d Cir. 2020).

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

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

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

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

11 conduct and the circumstances of his arrest. In his brief to this Court, Richardson also does not 

12 argue that the City had an unlawful policy or custom. Because the City cannot be vicariously 

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

14 the grant of summary judgment to the City.

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

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

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk of Court