Lubrano v. United States , 448 F. App'x 159 ( 2012 )

10-5012
Lubrano v. United States
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 18th day of January, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 THOMAS A. LUBRANO,
14 Appellant,
15
16 -v.- 10-5012
17
18 UNITED STATES OF AMERICA, et al.,
19 Defendants-Appellees.
20 - - - - - - - - - - - - - - - - - - - -X
21
22
23
24 FOR APPELLANT: Thomas A. Lubrano, pro se,
25 Shirley, New York.
26
1
1 FOR APPELLEES: Varuni Nelson, Margaret M.
2 Kolbe, Assistant United States
3 Attorneys, for Loretta E. Lynch,
4 United States Attorney for the
5 Eastern District of New York,
6 Brooklyn, New York.
7
8
9 Appeal from a judgment of the United States District
10 Court for the Eastern District of New York (Spatt, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the district court be
14 AFFIRMED.
15
16
17 Thomas Lubrano, pro se, appeals from the November 18,
18 2010 judgment of the United States District Court for the
19 Eastern District of New York granting the defendants’ motion
20 to dismiss. We assume the parties’ familiarity with the
21 underlying facts, the procedural history, and the issues
22 presented for review.
23
24 This Court reviews de novo a district court decision
25 dismissing a complaint pursuant to Rule 12(b)(1) or (6).
26 See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474
27 (2d Cir. 2006) (Rule 12(b)(1)); Chambers v. Time Warner,
28 Inc., 282 F.3d 147, 152 (2d Cir. 2002) (Rule 12(b)(6)). In
29 each instance, this Court “constru[es] the complaint
30 liberally, accepting all factual allegations in the
31 complaint as true, and drawing all reasonable inferences in
32 the plaintiff’s favor.” Chambers, 282 F.3d at 152; see also
33 Triestman, 470 F.3d at 474. Dismissal of a case for lack of
34 subject matter jurisdiction under Rule 12(b)(1) is proper
35 “when the district court lacks the statutory or
36 constitutional power to adjudicate it.” Makarova v. United
37 States, 201 F.3d 110, 113 (2d Cir. 2000). In evaluating a
38 complaint pursuant to Rule 12(b)(6), the Court must
39 determine if the complaint pleads “enough facts to state a
40 claim to relief that is plausible on its face.” Bell Atl.
41 Corp. v. Twombly, 550 U.S. 544, 570 (2007).
42
43 After having reviewed Lubrano’s contentions on appeal
44 and the record of proceedings below, we affirm for
45 substantially the same reasons stated by the district court
46 in its thorough opinion.
47
2
1 We have considered all of the appellant’s arguments and
2 find them without merit. Accordingly, the judgment of the
3 district court is AFFIRMED.
4
5
6
7 FOR THE COURT:
8 CATHERINE O’HAGAN WOLFE, CLERK
9
3