#### Curtis HARDAWAY, Plaintiff-Appellant, v. HARTFORD PUBLIC WORKS DEPARTMENT, Defendant-Appellee.

16-3074

United States Court of Appeals, Second Circuit.

January 12, 2018

Appearing for Appellant: Curtis Harda-way, pro se, Windsor, CT

Appearing for Appellee: JONATHAN H. BEAMON, Senior Assistant Corporation Counsel, Hartford, CT

Present: RALPH K. WINTER/GUIDO CALABRESI, ROSEMARY S. POOLER, Circuit Judges.

SUMMARY ORDER

Plaintiff-Appellant Curtis Hardaway appeals from the August 31, 2016 judgment of the United States District Court for the District of Connecticut (Hall, *C.J.,*Merriam, *M.J.),*dismissing his third amended complaint alleging various claims against the City of Hartford, the Hartford Department of Public Works (the “Department”), and‘five Doe defendants. Hardaway, an African American and former employee of the Department, alleged that he was subjected to discrimination and retaliation after he filed complaints against the Department with the Occupational Safety and Health Administration (“OSHA”). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

We review de novo a district court’s sua sponte dismissal under 28 U.S.C. § 1915(e)(2). *Giano v. Goord,*250 F.3d 146, 149-150 (2d Cir. 2001), *abrogated on other grounds by Porter v. Nussle,*534 U.S. 516, *46122 S.Ct. 983, 152 L.Ed.2d 12 (2002). To avoid dismissal, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” *Bell Atlantic Corp. v. Twombly,*550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” *Ashcroft v. Iqbal,*556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We afford a pro se litigant “special solicitude” by interpreting a complaint filed pro se “to raise the strongest claims that it suggests.” *Hill v. Curcione,*657 F.3d 116, 122 (2d Cir. 2011) (internal punctuation omitted). “A pro se complaint should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” *Nielsen v. Rabin,*746 F.3d 58, 62 (2d Cir. 2014) (quoting *Chavis v. Chappius,*618 F.3d 162, 170 (2d Cir. 2010)).

We affirm the dismissal of Hardaway’s Section 1981 and state law intentional infliction of emotional distress for substantially the same reasons stated by the district court in the July 5, 2016 and August 1, 2016 recommended rulings. “When a defendant sued for discrimination under §§ 1981 or 1983 is a municipality, the plaintiff is required to show that the challenged acts were performed pursuant to a municipal policy or custom.” *Littlejohn v. City of New York,*795 F.3d 297, 314 (2d Cir. 2015) (quoting *Patterson v. Cty. of Oneida, N.Y.,*375 F.3d 206, 226 (2d Cir. 2004)) (internal quotation marks omitted). In its review of Hardaway’s second amended complaint, the district court informed Hardaway that he had not pled sufficient facts for municipal liability to attach under Section 1981. In his third amended complaint, Hardaway failed to plead additional information regarding a municipal policy or custom. Under such circumstances, we see no error in the district court’s dismissal of Hardaway’s Section 1981 claim with prejudice.

The district court also correctly determined that Hardaway’s intentional infliction of emotional distress claim was barred by Connecticut law as against the municipality, and that there was no viable claim against another defendant. *See Huaman v. Sirois,*No. 13CV484 (DJS), 2015 WL 5797005, at *19 (D. Conn. Sept. 30, 2015) (“Conn. Gen. Stat. § 52-557n bars claims against municipalities based on willful misconduct, and therefore plaintiffs cannot use § 52-557n to hold municipalities liable for the intentional misconduct of municipal employees.”).

Hardaway argues that the district court erred by neglecting to analyze his claims under the First Amendment. We disagree. “[T]he submissions of a pro se litigant must be construed liberally.” *Triestman v. Fed. Bureau of Prisons,*470 F.3d 471, 474 (2d Cir. 2006) (quoting *Pabon v. Wright,*459 F.3d 241, 248 (2d Cir. 2006)) (internal quotation marks omitted). But “[district judges have no obligation to act as counsel or paralegal to pro se litigants.” *Pliler v. Ford,*542 U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004). After Hardaway filed his initial complaint on January 26, 2016, he filed a total of three amended complaints responding to various points raised by the district court. In his initial complaint, Hardaway alleged one count of “15 U.S. Code § 2087 OSHA/Whistleblower Retaliation.” In its review of that initial complaint, the district court noted that “the facts alleged could be read to state a First Amendment retaliation claim pursuant to 42 U.S.C. § 1983,” but found that Hardaway had failed to name an entity amenable to suit. Recommended Ruling at 4, *Hardaway v. Hartford Public Works Dep’t,*No. 16-cv-00115 (D. Conn. Feb. 26, *472016) (ECF No. 13), *adopted by order*Mar. 18, 2016 (ECF No. 17). Hardaway never included a First Amendment charge in his subsequent complaints, nor did he name an entity amendable to suit until his second amended complaint. Given Harda-way’s failure to raise a First Amendment retaliation claim in his many revised complaints, despite suggestion from the district court that such a claim might be viable, we conclude that the district court did not err by declining to construe Harda-way’s third amended complaint to raise such a claim. Further, even if the district court had analyzed Hardaway’s claims under the First Amendment, Hardaway alleged no facts indicating that he “spoke as citizens on a matter of public concern” in his complaints to OSHA, as required for a public employee to maintain a First Amendment retaliation claim. *Ruotolo v. City of New York,*514 F.3d 184, 188 (2d Cir. 2008).

We have considered the remainder of Hardaway’s arguments, and find them to be without merit. Accordingly, with respect to Hardaway’s Section 1981 claim, Count II of the third amended complaint, and his intentional infliction of emotional distress claim, Count IV, the order of the district court hereby is AFFIRMED.