09 -46 58 -cv

Nogbou v. Mayrose 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 A SUMMARY O RDER 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 2 Second Circuit, held at the Daniel Patrick Moynihan United States 3 Courthouse, 500 Pearl Street, in the City of New York, on the 30 th 4 day of November, two thousand ten. 5 6 PRESENT: AMALYA L. KEARSE, 7 JOSEPH M. MC LAUGHLIN, 8 DEBRA ANN LIVINGSTON , 9 Circuit Judges . 10 11 12 RODOLPHE NOGBOU, 13 Plaintiff-Appellant , 14 15 -v.- No. 09-4658-cv 16 17 POLICE OFFICER MAYROSE, New York Police Department badge #6266, 18 POLICE OFFICER LORE, The New York Police Department badge #10037, 19 POLICE OFFICER RIGALOS, New York Police Department badge # 28450, 20 BELLEVUE HOSPITAL CENTER’S PSYCHIATRIC SERVICES, 21 Defendants-Appellees , 22 23 24 RODOLPHE NOGBOU, pro se , New York, NY. 25 26 DONA B. MORRIS, Assistant Corporation Counsel, 27 for Michael A. Cardozo, Corporation Counsel 28 for the City of New York , New York, NY, for 29 Defendants-Appellees . 30 31 32 Appeal from a judgment of the United States District Court for 33 the Southern District of New York (Sweet, J. ).2

1 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND 2 DECREED that the judgment of the district court is AFFIRMED . 3 Appellant Rodolphe Nogbou, pro se , app eals the district 4 c o u rt’s judgment granting the defendants’ motion for judgment o n 5 the pleadings and dis m i s s ing his 42 U.S.C. § 1983 complaint. We 6 a s s ume the parties’ familiarity with the underlying facts, th e 7 procedural history of the case, and the issues on appeal. 8 I. Motion for Judgment on the Pleadings 9 We review a judgment on the pleadings pursuant to Fed. R. Civ. 10 P. 12(c) de novo . See Hardy v. N.Y.C. Health & Hosps. Corp. , 164 11 F.3d 789, 792 (2d Cir. 1999). The standard applicable to a motion 12 t o dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) 13 also applies to a Rule 12(c) motion for judgment on the pleadings. 14 Sheppard v. Beerman , 18 F.3d 147, 150 (2d Cir. 1994). Thus, “a 15 court must accept t h eallegations contained in the complaint as 16 true, and draw all reasonable inferences in favor of the 17 non-movant,” and deny the motion “unless it appears bey o n ddoubt 18 that the plaintiff can prove no set of facts in support of his 19 claim which would entitle him to relief.” Id. (internal quotation 20 marks omitted) (quoting Ad-Hoc Comm. of Baruch Black and Hispanic 21 Alumni Ass'n v. Bernard M. Bar u chCollege , 835 F.2d 980, 982 (2d 22 Cir. 1987)). 23 Nogbou correctly argues that th e d istrict court erroneously3

1 relied on his Bellevue Hosp i t a l psychiatric records in analyzing 2 his excessive force claim. Although these records were attached to 3 his complaint, Nogbou alleged that po r t ions of the records were 4 fabricated, and the district court was required to accept that 5 allegation as true in deciding the Rule 12(c) motion. See 6 Sheppard , 18 F.3d at 150. 7 Nonetheless, we find that the district court's decision to 8 dismiss Nogbou’s excessive force claim was based primarily on its 9 conclusion that the force used by the Defendant Police Officers was 10 de mimimis , with no allegations by the Plaintiff of any injuries or 11 additional facts to establi s h t h at the use of force was 12 unreasonable, rather than on its citation to disputed portions of 13 Nogbou's psychiatric record. Because Nogbou has not challenged 14 this conclusion in his brief, we affirm t he district court's 15 dismissal of his excessive force claim. 16 Moreover, while Plaintiff specifically challenges the district 17 court's description of his initial hospitalization, the description 18 provided, in which the officers told him he could not sleep on the 19 streets and handcuffed him when he refused to leave, is consistent 20 with the allegations in his comp l a i n t . Further, the district 21 court's dismissal of his involuntary hospitalization claim was not 22 based on this description. Rather, as the district court noted, due 23 process permits the involuntary hospitalization of an individual if4

1 he is a danger to himself or o t h e rs. See Anthony v. City of New 2 York , 339 F . 3 d 1 2 9 , 137 (2d Cir. 2003). The district court 3 concluded from th e p l aintiff's allegations that probable cause 4 existed for the officers’ belief that he “posed a danger to himself 5 when they encountered him sleeping outside on a frigid night,” 6 Nogbou v. Mayrose , No. 07 Civ. 3763, slip op. at 12 (S.D.N.Y. Oct. 7 15, 2009), a conclusion that the plaintiff does not challenge on 8 appeal. As a result, we affirm the dismissal of this claim as 9 well. 10 Finally, we affirm the district court's dismissal of the 11 remainder of Nogbou's claims for substantially the same reasons 12 stated by the district court in its thorough and well reasoned 13 decision. 14 II. Leave to Amend 15 “Le a v e to amend should be freely granted, but the district 16 court has the discretion to deny leave if there is a good reason 17 for it, such as futility, bad faith, undue delay, or undue 18 prejudice to the opposing party.” Jin v. Metropolitan Life Ins. 19 Co. , 3 1 0 F.3d 84, 101 (2d Cir. 2002). We review the denial o f 20 leave to amend a complaint for abuse of discretion. Id. 21 Here, the district court properly determined that an amendment 22 w o u ld be futile on the ground that negligence and medical 23 malpractice claims are not actionable under § 1983. See, e.g.,5

1 Estelle v. Gamble , 429 U.S. 97, 105-06 (1976) (noting that mere 2 negligence in diag n o sis or treatment is insufficient to state a 3 valid Eighth Ame n dment claim and emphasizing that “[m]edical 4 malpractice d oes not become a constitutional violation merely 5 because the victim is a prisoner”). 6 Arguably, the district court could hav e p ermitted Nogbou to 7 amend his complaint to assert an involuntary hospitalization or 8 forced medication claim against Health and Hospitals Corpor a t i on 9 and the relevant B e l l e vue Hospital staff members. However, such 10 claims would also have been futile. As mentioned above, the 11 plaintiff does not challenge the district court's conclusion that 12 his allegation that he was slee p i n g outside in February in 13 “freezing temperature[s]” created probable cause to believe that he 14 was a danger to himself. Thus, he has not established that the 15 district court abused its discretion in denying him leave to amend 16 his complaint. 17 We have considered Nogbou's other arguments on appeal and have 18 found them to be without merit. Accordingly, the judgment of the 19 district court is hereby AFFIRMED . 20 21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 23 24 25