1

22-451

McDaniels v. Mertens

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 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, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

1st day of September, two thousand twenty-three.

PRESENT:

MYRNA PÉREZ,

ALISON J. NATHAN

SARAH A. L. MERRIAM,

Circuit Judges.

_____________________________________

London McDaniels,

Plaintiff-Appellant,

v. No. 22-451

Nicholas Mertens, 

Defendant-Appellee.

_____________________________________

FOR PLAINTIFF-APPELLANT: Edward E. Kopko, Edward E. Kopko, Lawyer, 

P.C., Ithaca, NY.

FOR DEFENDANT-APPELLEE: Dustin J. Brockner, Assistant Solicitor General,

Jeffrey W. Lang, Deputy Solicitor General, 

Barbara D. Underwood, Solicitor General, for 

Letitia James, Attorney General of the State of 

New York, Albany, NY.
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Appeal from an order of the United States District Court for the Northern District of New 

York (D’Agostino, J.).

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

DECREED that the order of the district court is AFFIRMED. 

London McDaniels appeals from the district court’s dismissal of his § 1983 claim against 

New York State Trooper Nicholas Mertens. In the operative complaint, McDaniels described his 

Equal Protection claim as a selective enforcement claim. Even reviewing the dismissal de novo, 

“accepting all factual allegations as true and drawing all reasonable inferences in favor of the 

plaintiff,” we cannot conclude that the district court erred. See Trs. of Upstate N.Y. Eng’rs Pension 

Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). We assume the parties’ familiarity 

with the underlying facts, procedural history, and issues on appeal, to which we refer only as 

necessary to explain our decision to affirm.

Having chosen to assert a selective enforcement claim, McDaniels was required to allege 

the existence of a similarly situated comparator. Consistent with our precedent, the district court 

did not require McDaniels to present actual evidence of such comparators, but only to allege facts 

that plausibly supported his claim. See Hu v. City of New York, 927 F.3d 81, 97 (2d Cir. 2019).

McDaniels failed to do so, despite correctly stating in his complaint that selective enforcement 

claims “require[ ] a plaintiff to prove that ‘(1) the person, compared with others similarly situated, 

was selectively treated . . . .” App’x 2 (quoting Hsin v. City of New York, 779 F. App’x 12, 14–15

(2d Cir. 2019) (summary order)). 

McDaniels cannot now suggest, for the first time on appeal, that the district court should 

have ignored his own framing of his claim. While McDaniels is correct that “there are ‘several 

ways for a plaintiff to plead intentional discrimination that violates the Equal Protection Clause,’” 
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he asserted that he was pursuing only one particular theory of liability, and he failed to satisfy the 

pleading requirements for the one he chose.

1

 Appellant’s Br. at 5 (quoting Brown v. Oneonta, 221 

F.3d 329 (2d Cir. 2000)). Accordingly, the district court did not err in dismissing the complaint.

We have considered all of McDaniels’s remaining arguments and find them to be without 

merit. For the foregoing reasons, we AFFIRM the February 7, 2022 order of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court

1 We take no position on whether the complaint adequately pleaded an equal protection claim based on a different 

theory of liability—that question was not presented to the district court and therefore, we have no basis to reach it. 

See Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 124 n.29 (2d Cir. 2005) (“The law in this Circuit is clear 

that where a party has shifted his position on appeal and advances arguments available but not pressed below, . . . 

waiver will bar raising the issue on appeal.” (internal quotation marks omitted)); see also NRP Holdings LLC v. City 

of Buffalo, 916 F.3d 177, 197 n.16 (2d Cir. 2019) (declining to consider race-based selective treatment claim that

plaintiff, having previously opted to pursue only a class-of-one claim, failed to present to the district court “either in 

its operative complaint or in its opposition to defendants’ motion to dismiss.”).