16-1315 Garanin v. New York City Housing Preservation and Development 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 PE RMITTED 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 Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 21 st day of December, two thousand sixteen.

Present: D EBRA A NN L IVINGSTON , D ENNY C HIN , S USAN L. C ARNEY , Circuit Judges.

_____________________________________ V SEVOLOD G ARANIN , Plaintiff-Appellant , v. 16-1315

N EW Y ORK C ITY H OUSING P RESERVATION AND D EVELOPMENT , C HANEL Z EISEL , individually and in her capacity as Project Manager and Leasing Supervisor at 44th Street Development LLC, D ORON T ALEPOROS , individually and in his capacity as Deputy Director of Marketing at New York City Housing Preservation and Development, Defendants-Appellees

.

_____________________________________ For Plaintiff-Appellant: Vsevolod Garanin, pro se, Staten Island, New York2 For Defendants-Appellees: Ellen Sara Rav itch, Scott Nathan Shorr, of counsel, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York (f or New York City Housing Preservation and Development a nd Doron Taleporos); Felice B. Ekelman, Adam S. Gross, Jackson Lewis P.C., New York, New York (for Chanel Zeisel) Appeal from a judgment of the United States Di strict Court for the Southern District of New York (Nathan, J .), entered on March 31, 2016. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-Appellant Vsevolod Garanin, proceeding pro se, appeals from the district court’s judgment dismissing his 42 U.S.C. § 1983 complaint, which alleged that the Defendants-Appellees—New York City Housing Preservation a nd Development (“HPD”), its employee, and the project manager for a residentia l real estate company—violated his rights under the Equal Protection Clause and the Firs t Amendment by denying his application for middle-income housing based on gui delines that discriminated agai nst self-employed individuals and in retaliation for certain complaints that he made about the project manager. We assume the parties’ familiarity with the underlying facts, the procedural hi story of the case, and the issues on appeal.

We review de novo a district court’s dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), “construing the compla int liberally, accepting all factual allegations in the complaint as true, and drawing all reasona ble inferences in the plaintiff’s favor.” Chambers

Time Warner , 282 F.3d 147, 152 (2d Cir. 2002). The comp laint must plead “enough facts to a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 5703 (2007); see also Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Although a court must accept as all the factual allegations in the complaint, that requirement is “inapplicable to legal Iqbal , 556 U.S. at 678. Upon review, we conclude that the district c ourt correctly determined that Garanin failed to plausibly allege violations of the Equal Pr otection Clause. “The Equal Protection Clause requires that the government treat all similarly situated people alike.” Harlen Assocs. v. Inc. Vill. of Mineola , 273 F.3d 494, 499 (2d Cir. 2001). This cl ause prohibits both “prototypical” discrimination based on membership in a protected class and “class of one” discrimination where the plaintiff alleges that he has been “intention ally treated differently from others similarly

situated” without a “rati onal basis for the differ ence in treatment.” Id . (quoting Vill. of

Willowbrook v. Olech , 528 U.S. 562, 564 (2000) (per curiam)). We conclude that Garanin has failed to plausibly allege a “prototypical” equa l protection claim because self-employment does not define a protected cl ass. Also, Garanin failed to allege a “class of one” equal protection claim because his complaint contained no references to comparators or any factual allegations addressing “similarity in circumstances and difference in treatment.” Neilson v. D’Angelis , 409 F.3d 100, 105 (2d Cir. 2005), abrogated on other grounds , Appel v. Spiridon , 531 F.3d 138 (2d Cir. 2008) (per curiam).

We affirm the dismissal of Garanin’s rema ining claims substantially for the reasons in the district court’s well-reasoned and thorough or der. The district court correctly dismissed Garanin’s claims against Chanel Zeisel for failure to state a claim. A plaintiff must plausibly allege that the defendant is a state ac tor to state a claim under 42 U.S.C. § 1983. See Milan v.

Wertheimer , 808 F.3d 961, 964 (2d Cir. 2015) (per curiam). Zeisel was the project manager of4 private development company. A “private ent ity” can be liable for a § 1983 violation if its “challenged actions are fairly at tributable to the state.” McGugan v. Aldana-Bernier , 752 F.3d 224, 229 (2d Cir. 2014) (internal quotation marks omitted), cert. denied , 135 S. Ct. 1703 (2015). But Garanin failed to plausibly allege that Zeisel’s alleged retaliation was fairly attributable to state. In addition, Garanin failed to stat e a claim for municipal liability under § 1983. A complaint asserting municipal liability must plausi bly allege that an official policy or custom caused the plaintiff’s constitutional rights to be violated. See Wray v. City of N.Y. , 490 F. 3d 195 (2d Cir. 2007). “The failure to train or superv ise city employees may constitute an official policy or custom if the failure to train amounts to deliberate indifference.” Id. (internal marks omitted). Deliberate indifference exists when “a policymaking official was aware of constitutional injury” but “failed to take appropria te action to prevent or sanction” the violations. Jones v. Town of E. Haven , 691 F.3d 72, 81 (2d Cir. 2012). Garani n failed to plausibly allege a policymaking official’s involvement in or know ledge of the alleged retaliatory actions. We have considered Garanin’s remaining argum ents and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk