Gounden v. City of New York ( 2012 )

11-2061
Gounden v. City of New York
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 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 Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 9th day of July, two thousand twelve.
PRESENT:
ROSEMARY S. POOLER,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
Kris Gounden,
Plaintiff-Appellant,
v. 11-2061
Thomas Campagna, NYPD, FDNY, Fred
Doe, Fire Officer, Volunteer Fire
Department X, Volunteer X,
Defendants,
City of New York, John Doe, Police
Officer, Joseph Addabbo, Helen
Marshall, Capital Land Services,
Carmen Bretscher, Wilde, Police
Officer Sergeant, McManus, Police
Officer, West Hamilton Beach Fire
Department, Stewart Title Insurance
Company, Police Officers John Does
1-5,
Defendants-Appellees.
_____________________________________
APPEARING FOR PLAINTIFF-APPELLANT:
Kris Gounden, pro se,
Howard Beach, NY.
APPEARING FOR DEFENDANTS-APPELLEES:
Victoria Scalzo (Kristen M.
Helmers, William H. Vidal, on the
brief), for Michael A. Cardozo,
Corporation Counsel of the City of
New York, New York, NY.
Appeal from the judgment of the United States District Court
for the Eastern District of New York (Cogan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Kris Gounden, proceeding pro se, appeals
from the district court’s April 22, 2011, Opinion and Order
dismissing his second amended complaint on the defendants’
motions to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) and (6). We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the
issues on appeal.
“We review dismissal of a cause of action under Fed. R. Civ.
P. 12(b)(1) or 12(b)(6) de novo.” Jaghory v. New York State
Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal of a
case for lack of subject matter jurisdiction under Rule 12(b)(1)
is proper “when the district court lacks the statutory or
constitutional power to adjudicate it.” Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a Rule
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12(b)(6) motion to dismiss, the 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); see
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).
We have conducted a de novo review of the record in light of
these standards and now affirm the district court’s dismissal of
Gounden’s Fifth Amendment takings claim and Fourteenth Amendment
procedural due process and equal protection claims for
substantially the same reasons set forth in the district court’s
April 11, 2011, Opinion and Order.
With respect to Gounden’s substantive due process claim,
even if, as Gounden argues on appeal, the district court’s reason
for dismissing that claim was erroneous, we would affirm the
dismissal of that claim on other grounds. See Beal v. Stern, 184
F.3d 117, 122 (2d Cir. 1999). Specifically, “[t]o establish a
substantive due process violation, [Gounden] must [plead facts
supporting the inference] that the [City Defendants’] alleged
acts against his land were ‘arbitrary,’ ‘conscience-shocking,’ or
‘oppressive in the constitutional sense,’ not merely ‘incorrect
or ill-advised.’” Ferran v. Town of Nassau, 471 F.3d 363, 369-70
(2d Cir. 2006) (quoting Lowrance v. C.O. S. Achtyl, 20 F.3d 529,
537 (2d Cir. 1994)). This Gounden has not done. In his
complaint, he alleged that the Appellees informed him that they
were removing a boulder he had placed in a roadway he alleged was
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part of his property in order to “ensure their right to emergency
vehicle access to the properties immediately to [Gounden’s] south
and southwest.” Thus, the Appellees’ actions, far from being
“conscience-shocking,” were designed to ensure the safety of
Gounden’s landlocked neighbors, which is insufficient to
implicate his substantive due process rights. Cf. id. at 370
(concluding that a town’s paving of a road that the plaintiffs
asserted was theirs, as well as the use of that road as a turn
around for snow plows, while “incorrect or ill-advised . . . were
not so outrageous and arbitrary as to implicate the Ferrans’
substantive due process rights”).
We lack jurisdiction to consider the district court’s denial
of Gounden’s post-judgment motion pursuant to Federal Rule of
Civil Procedure Rules 60(b)and 59(e) “for relief from or
alteration of” the court’s judgment. Pursuant to Federal Rule of
Appellate Procedure 4(a)(4)(B)(ii), a party seeking “to
challenge an order disposing of” a post-judgment motion including
one brought under Rules 59 and 60, “must file a notice of appeal,
or an amended notice of appeal” within the applicable appeal
period “measured from the entry of the order disposing of the
last such remaining motion.” Here, Gounden filed his notice of
appeal challenging the district court’s initial judgment after
that judgment was entered but before the court rendered its
decision on his post-judgment motion. Once the district court
4
issued that disposition, Gounden did not file, as required by
Rule 4(a)(4)(B)(ii), a notice of appeal from that order or an
amended notice of appeal. Accordingly, we are without
jurisdiction to consider the merits of that disposition, which
includes the court’s denial of his motion to amend his complaint
and its dismissal of his Fourth Amendment claim on qualified
immunity grounds.
Additionally, on appeal, Gounden does not challenge the
district court’s reliance on qualified immunity to dismiss his
Fourth Amendment claim and therefore has waived any such
arguments. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93
(2d Cir. 1995). Accordingly, because the district court provided
an alternate ground for dismissing Gounden’s Fourth Amendment
claim that we have no jurisdiction to review, and because, even
if we had jurisdiction, Gounden does not challenge that alternate
ground on appeal, his arguments challenging the district court’s
rationale for its April 2011 dismissal of his Fourth Amendment
claim are moot. See ABN Amro Verzekeringen BV v. Geologistics
Ams., Inc., 485 F.3d 85, 94 (2d Cir. 2007) (holding that mootness
occurs where the court is “incapable of granting a judgment that
will affect the legal rights as between the parties”).
Ultimately, Gounden has attempted to recharacterize a
neighborhood property dispute as a series of constitutional
injuries. The proper forum for determining the extent of his
5
property right, however, is New York state court. Indeed, as
noted at oral argument, the parties are currently litigating a
new suit in state court, which may resolve the questions that
gave rise to the present dispute.
We have considered all of Gounden’s remaining 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
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