20-736

McGill v. Buzzelli et al. 

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 ASUMMARY 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 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 3rd day of November, two thousand twenty.

Present:

DEBRA ANN LIVINGSTON,

Chief Judge,

AMALYA L. KEARSE,

GERARD E. LYNCH,

Circuit Judges.

_______________________________________

CHARLES W. MCGILL,

Plaintiff-Appellant,

v. 20-736

VINCE BUZZELLI, TROY BLAKE, KATHLEEN DREW,

THOMAS W. HASSETT, CITY OF ROCHESTER,

ROCHESTER POLICE DEPARTMENT,

Defendants-Appellees.

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_______________________________________

1 The Clerk of Court for the U.S. Court of Appeals for the Second Circuit and the Clerk of Court 

for the U.S. District Court for the Western District of New York are respectfully directed to amend 

the official caption as shown above. 
For Plaintiff-Appellant: Charles W. McGill, pro se,

Rochester, NY.

For Defendants-Appellees: No appearance.

Appeal from a judgment of the United States District Court for the Western District of New 

York (Telesca, J.).

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

DECREED that the judgment of the district court is AFFIRMED. 

Appellant Charles McGill, proceeding pro se, appeals the district court’s judgment 

dismissing his amended complaint pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim 

on which relief may be granted. McGill, who was granted in forma pauperis status, sued four 

individuals, the City of Rochester (the “City”), and the Rochester Police Department (the “RPD”) 

under 42 U.S.C. § 1983. He alleged that his constitutional rights were violated when his 

employer—a company called T & L Automatics—fired him on false pretenses and his criminal 

history was sealed or expunged against his will. We assume the parties’ familiarity with the 

underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo a district court’s sua sponte dismissal of a complaint under 28 U.S.C. 

§ 1915(e)(2). Zaleski v. Burns, 606 F.3d 51, 52 (2d Cir. 2010) (per curiam). Under that statute, 

the district court must dismiss a complaint filed in forma pauperis if it determines that the action 

“(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks 

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 

To avoid dismissal, a complaint must plead “enough facts to state a claim to relief that is plausible 

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). We afford a pro se litigant 

“special solicitude” by interpreting a complaint filed pro se “to raise the strongest claims that it 
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suggests.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (internal alterations and quotation 

marks omitted). 

As a preliminary matter, McGill makes no mention on appeal of any claim related to 

changes to his criminal record. Any such claims are thus abandoned, and we decline to consider 

them. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (pro se litigant 

abandons issue by failing to raise it in appellate brief). Moreover, while McGill reiterates his 

allegations regarding his employment-related claims and argues that these allegations show that 

his rights were violated, he does not address the bases for the district court’s dismissal of these 

claims—i.e. that he failed to allege that three of the individual defendants acted under the color of 

state law, as necessary to state a claim under § 1983; that there were no allegations at all concerning 

the remaining individual defendant; that there were no allegations connecting the City or the RPD 

to these employment-related claims; and that New York does not recognize a tort claim for 

wrongful termination of an at-will employee. These issues, too, are thus waived. See id. 

In any event, the district court properly concluded that McGill had not stated a claim related 

to his employment. McGill failed to state a § 1983 claim because he did not allege that any of the 

defendants “acted under color of state law.” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (internal 

quotation marks and ellipsis omitted). He alleged that some of the defendants are employees of a 

business, without alleging that this business had any relationship with the government. See Am. 

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999) (stating that § 1983 actions do not reach 

purely private conduct). And he did not make any allegations suggesting that the other defendants

were involved in his termination. 
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McGill provided the district court a New York State Division of Human Rights 

(“NYSDHR”) complaint and determination and an Equal Employment Opportunity Commission

right-to-sue letter with his initial complaint, suggesting that he was trying to raise a claim under 

state and federal anti-discrimination statutes. But he did not include these documents in his 

amended complaint, and he did not allege discrimination based on any protected ground in either 

of his complaints. See 42 U.S.C. § 2000e-2(a)(1) (prohibiting discrimination based on race, color, 

religion, sex, and national origin); id. § 12112 (disability); 29 U.S.C. § 623(a) (age); N.Y. Exec. 

Law § 296(1)(a), (15)–(16) (“age, race, creed, color, national origin, sexual orientation, gender 

identity or expression, military status, sex, disability, predisposing genetic characteristics, familial 

status, marital status, or status as a victim of domestic violence” and criminal history). 

Although the amended complaint included some documents related to McGill’s criminal 

history, he did not allege that any party involved in his termination was aware of or motivated by 

his criminal history. Even if his complaint had suggested such a claim, McGill has abandoned it 

on appeal, because he does not allege discrimination on any protected ground in his appellate brief. 

See LoSacco, 71 F.3d at 92–93. To the extent McGill sought damages from the NYSDHR for its 

purported mishandling of his complaints, the Eleventh Amendment bars suits against it because it 

is a state agency. See Baba v. Japan Travel Bureau Int’l Inc., 111 F.3d 2, 5 (2d Cir. 1997) (per 

curiam). In any event, McGill does not address any claims against NYSDHR in his appellate 

brief. 

Moreover, the district court properly concluded that the amended complaint did not state a 

plausible state tort claim. New York does not recognize a tort claim for wrongful termination of 

an at-will employee. Smalley v. Dreyfus Corp., 10 N.Y.3d 55, 58 (2008); see also Horn v. New 
5

York Times, 100 N.Y.2d 85, 96 (2003) (“We have consistently declined to create a common-law 

tort of wrongful or abusive discharge[.]”). No exception to this rule encompasses McGill’s claim 

that the defendants refused to train him in order to create a pretext to fire him. See Smalley, 10 

N.Y.3d at 58 (“New York law is clear that absent a constitutionally impermissible purpose, a 

statutory proscription, or an express limitation in the individual contract of employment, an 

employer’s right at any time to terminate an employment at will remains unimpaired.” (internal 

quotation marks omitted)). McGill does not challenge the district court’s decision to exercise 

supplemental jurisdiction over his state claims. 

Finally, the district court did not abuse its discretion in dismissing McGill’s amended 

complaint without providing further leave to amend. In dismissing McGill’s first complaint, the 

district court afforded him an opportunity to amend and warned that failure to cure the problems 

identified in the dismissal order would result in a dismissal with prejudice. A denial of further 

leave to amend under these circumstances is well within the district court’s discretion. See 

TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 506 (2d Cir. 2014). 

We have considered all of McGill’s arguments and find them to be without merit. 

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court