Combier v. Portelos ( 2019 )

18-3230
Combier v. Portelos
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 9th day of October, two thousand nineteen.
PRESENT:
PIERRE N. LEVAL,
DEBRA ANN LIVINGSTON,
RAYMOND J. LOHIER, Jr.,
Circuit Judges.
_____________________________________
Elizabeth Betsy Combier,
Plaintiff-Counter-Defendant-Appellant,
v. 18-3230
Francesco Portelos, Bryan Glass, Esq., Jordan
Harlow, Esq., Carmen Farina, Chancellor of The
New York City Department of Education, and
New York City Department of Education, all
sued individually and officially,
Defendants-Appellees,
Lucio Celli,
Defendant-Counter-Claimant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: Elizabeth Betsy Combier, pro se, New York,
NY.
FOR DEFENDANTS-APPELLEES: Kathy Park, Yasmin Zainulbhai, of Counsel,
for Zachary W. Carter, Corporation Counsel
of the City of New York, New York, NY
(for the New York City Department of
Education, Carmen Farin͂ a, Chancellor of the
New York City Department of Education);
Jordan Harlow, Esq., Glass & Hogrogian
LLP, New York, NY (for Bryan Glass, Esq.,
Jordan Harlow, Esq.);
Francesco Portelos, pro se, Staten Island,
NY.
Appeal from a judgment of the United States District Court for the Eastern District of New
York (Brodie, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Elizabeth Betsy Combier, proceeding pro se, sued the New York City
Department of Education (“DOE”) and Carmen Farin͂ a, the former Chancellor of the DOE
(together, the “DOE defendants”), two attorneys, Bryan Glass and Jordan Harlow, and two NYC
public school teachers employed by the DOE, Francesco Portelos and Lucio Celli (collectively,
the “individual defendants”). Combier was a self-employed, non-attorney advocate for New York
City public school teachers who were subjected to disciplinary hearings and alleged that the
individual defendants conspired to defame her and ruin her business and that the DOE defendants
were aware of their behavior and failed to prevent it. Her complaint contained causes of action
under 42 U.S.C. § 1983; the Constitution; the Computer Fraud and Abuse Act (“CFAA”), 18
U.S.C. § 1030 et seq.; and the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq.
The magistrate judge (Mann, C.M.J.) recommended that the district court grant the defendants’
motions to dismiss for failure to state a claim. The district court adopted the recommendation in
its entirety. This appeal followed. We assume the parties’ familiarity with the underlying facts,
the procedural history, and the issues on appeal.
We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6) or Rule 8.
Forest Park Pictures v. Universal Television Network, 683 F.3d 424, 429 (2d Cir. 2012) (Rule
12(b)(6)); Harnage v. Lightner, 916 F.3d 138, 140 n.2 (2d Cir. 2019) (Rule 8).
Failure to timely object to a magistrate judge’s report and recommendation (“R&R”) “may
operate as a waiver of any further judicial review of the decision, as long as the parties receive
clear notice of the consequences of their failure to object.” United States v. Male Juvenile (95-
CR-1074), 121 F.3d 34, 38 (2d Cir. 1997); see Small v. Sec’y of Health & Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that, when a litigant is pro se, an R&R’s warning must state the
consequences of failure to object and must cite 28 U.S.C. § 636(b)(1) and applicable rules of civil
procedure). This waiver rule is non-jurisdictional and may be excused “in the interests of justice”
if “the magistrate judge committed plain error in ruling against the defaulting party.” Spence v.
Superintendent, 219 F.3d 162, 174 (2d Cir. 2000) (internal quotation marks omitted).
The magistrate judge recommended the dismissal of Combier’s constitutional and state law
claims and warned Combier that failure to timely object to the R&R would waive appellate review,
citing the applicable statute, rules, and caselaw. Because Combier did not object to that
recommendation, the district court did not err in declining to address those claims, and Combier
has waived further judicial review. See Male Juvenile (95-CR-1074), 121 F.3d at 38–39.
Combier objected to the recommendation to dismiss her CFAA claims, but her argument
before the district court was different from the argument she presses on appeal. In objecting to
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the R&R, Combier argued generally that the magistrate judge should have considered that Portelos
improperly obtained access to her data when he hacked her blog. However, on appeal, she
pursues a different argument: that she sufficiently alleged $5,000 of damages. Because the
argument she raised in her objections was different from the one raised on appeal, we deem both
arguments waived. See Harrison v. Republic of Sudan, 838 F.3d 86, 96 (2d Cir. 2016) (“It is a
well-established general rule that an appellate court will not consider an issue raised for the first
time on appeal.” (internal quotation marks omitted)); Moates v. Barkley, 147 F.3d 207, 209 (2d
Cir. 1998).
The district court correctly found that Combier did not object to dismissal of her SCA
claims. The only statement in Combier’s objection that could have been construed as an
opposition to the dismissal of the SCA claims was her statement that “[m]y blog is an electronic
communication service, has emails, and people email me every day.” It is of course true that pro
se submissions must be construed liberally, but an objection that amounts to a “bare statement,
devoid of any reference to specific findings or recommendations . . . and unsupported by legal
authority” is not sufficient to preserve a claim for review. Mario v. P & C Food Mkts., Inc., 313
F.3d 758, 766 (2d Cir. 2002). Because Combier’s objection amounts to a “bare statement” with
no elaboration or citation to legal authority, the district court did not err in finding that Combier
waived objection to dismissal of the SCA claim.
The district court properly dismissed Combier’s § 1983 claims. A plaintiff asserting a
claim of violation of her constitutional rights under § 1983 is “required to show state action.”
Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003). When determining whether
the defendant is a state actor, we “begin by identifying the specific conduct of which the plaintiff
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complains.” Id. (internal quotation marks omitted). A defendant’s employment status is not
dispositive; rather, a tort committed by a public employee is under color of state law only if it is
“committed in the performance of an actual or pretended duty.” Bonsignore v. City of New York,
683 F.2d 635, 639 (2d Cir. 1982) (internal quotation marks omitted). Otherwise, it falls “in the
ambit of his personal pursuits” and, though it may be a tort, is not actionable under § 1983. Id.
(internal quotation marks omitted); see also Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994)
(“The Bonsignore panel’s focus on actual or pretended duty aptly synthesizes the color of law
inquiry.”); Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995) (“It is well settled that
an otherwise private tort is not committed under color of law simply because the tortfeasor is an
employee of the state.”).
If the defendant is a private entity, its conduct “must be fairly attributable to the state,”
which can occur only if there is “a close nexus between the State and the challenged action,” such
that “seemingly private behavior may be fairly treated as that of the State itself.” Tancredi, 316
F.3d at 312 (internal quotation marks omitted). A state’s “approval or acquiescence” is not
sufficient; rather, the state must exercise “coercive power,” or be “entwined in the management or
control” of the conduct at issue. Id. at 313 (internal quotation marks and alterations omitted).
Applying these standards here, we conclude that the district court did not err when it
determined that Portelos and Celli, though DOE employees, were not “state actors” for the
purposes of § 1983. Combier claimed that Portelos hacked into Combier’s blog and deleted
content, and advised teachers facing 3020-a hearings that they should not hire non-attorneys such
as Combier. Celli, in turn, and acting at Portelo’s direction, “created a national profile” of
Combier that portrayed her in an unflattering light. And the two of them then allegedly embarked
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on a scheme “to deny Plaintiff her right to earn money as a non-lawyer advocate by characterizing
her as a criminal, fabricating laws that they claimed she was breaking, and hacking into her website
to enrich themselves.” These allegations, even if true, do not establish that Portelos or Celli
undertook an “actual or pretended duty” at the direction of the DOE, or that their attempts to
defame her and harm her business were possible only because they were cloaked with DOE
authority. Rather, the only allegations that tie Portelos and Celli to state action are their
employment status, their use of work email accounts during work hours, and the DOE’s alleged
failure to prevent their actions. But the fact that misconduct may have occurred during work
hours or with work-issued equipment is not dispositive; “[m]ore is required than a simple
determination as to whether an officer was on or off duty when the challenged incident occurred.”
Pitchell, 13 F.3d at 548; see also id. (officer did not act under color of state law even though he
used state-issued bullets).
We agree with the district court that if Portelos and Celli, both public employees, were not
acting under color of state law, then Glass and Harlow, both private attorneys, could not have been
either. Spear v. Town of W. Hartford, 954 F.2d 63, 68 (2d Cir. 1992) (to state claim against private
actor, “the complaint must allege facts demonstrating that the private entity acted in concert with
the state actor to commit an unconstitutional act”).
Concerning the DOE defendants, Combier argues on appeal that the DOE should have
prevented Portelos and Celli from committing their alleged “misconduct.” But, as discussed
above, Portelos and Celli’s alleged scheme was undertaken in their private capacities, and a
municipal entity cannot be liable under § 1983 absent an underlying independent constitutional
violation by a state actor. See, e.g., Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006)
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(municipal organization can be held liable “where that organization’s failure to train, or the policies
or customs that it has sanctioned, led to an independent constitutional violation”). Further, it is
well established that states (or municipal entities) cannot be held liable under § 1983 for failing to
protect their citizens from private misconduct. See Deshaney v. Winnebago Cty. Dep’t of Soc.
Servs., 489 U.S. 189, 195 (1989). A plaintiff suing a municipality under § 1983 must plausibly
allege the existence of a municipal policy, custom, or practice that caused the claimed civil rights
violation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692–94 (1978). Combier did not
allege that the DOE had a policy, custom, or practice that harmed her and, therefore, the DOE
cannot be held liable under § 1983. Moreover, Combier does not press any claims against Farin͂ a
on appeal, and has thus abandoned any claims against her. See Moates, 147 F.3d at 209.
Finally, Celli submitted papers in advance of argument in which he appeared to challenge
the district court’s dismissal of his counterclaims and denial of various motions. We decline to
consider these arguments both because they are untimely and because Celli did not file a notice of
appeal. See Fed. R. App. P. 4(a)(3) (cross appeal must be filed within 14 days of first notice of
appeal).
We have considered all of Combier’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 of Court
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