Kraft v. City of New York , 441 F. App'x 24 ( 2011 )

10-2144-cv
Kraft 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 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 for the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
3 on the 11th day of October, two thousand eleven.
4
5 PRESENT:
6 JOHN M. WALKER, Jr.,
7 CHESTER J. STRAUB,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judges.
10 _____________________________________
11
12 TIMOTHY KRAFT,
13
14 Plaintiff-Appellant,
15
16 v. No. 10-2144-cv
17
18 CITY OF NEW YORK, P.O. BRETT BARA, P.O.
19 JOSE BUENO, THE NEW YORK CITY HEALTH
20 AND HOSPITALS CORPORATION, DR. ELI
21 GREENBERG, DR. FADI HADDAD, DR.
22 ALYSON MALOY, P.O.S JOHN AND JANE DOE
23 #1-10, individually and in her official capacities
24 (the names John and Jane Doe being fictitious, as
25 the true names are presently unknown), HHC
26 PERSONNEL JOHN AND JANE DOE # 11-20,
27 E.M.S. SUPERVISOR JOHN DOE #21,
28
29 Defendants-Cross-
30 Defendants-Appellees,
31
1 COMMON GROUND COMMUNITY H.D.F.C.,
2 INC., CENTER FOR URBAN COMMUNITY
3 SERVICES, ROSANNE HAGGERTY, NANCY
4 PORCARO, ORETHA FRANKLIN, MICHAEL
5 GIORDANO, STACY NERI, DAWN
6 BRADFORD,
7
8 Defendants-Cross-
9 Claimants-Cross-
10 Defendants-Appellees,
11
12 AMY COHEN,
13
14 Defendant-Cross-Defendant,*
15 _____________________________________
16
17
18 TIMOTHY KRAFT, pro se, New York, New York, for Plaintiff-
19 Appellant Timothy Kraft.
20
21 DEBORAH A. BRENNER for Michael A. Cardozo, New York
22 City Corporation Counsel, New York, New York, for Defendants-
23 Appellees City of New York, P.O. Brett Bara, P.O. Jose Bueno,
24 The New York City Health and Hospitals Corporation, Dr. Eli
25 Greenberg, Dr. Fadi Haddad, and Dr. Alyson Maloy.
26
27 Matthew W. Naparty; Richard J. Montes; Mauro Lilling Naparty
28 LLP, Great Neck, New York, for Defendants-Appellees Common
29 Ground Community H.D.F.C., Inc., Rosanne Haggerty, Nancy
30 Porcaro, Oretha Franklin, and Michael Giordano.
31
32 Thomas A. Catalano, Lester Schwab Katz & Dwyer, LLP, New
33 York, New York, for Defendants-Appellees Center for Urban
34 Community Services, Inc., Stacy Neri, and Dawn Bradford.
35 Appeal from the United States District Court for the Southern District of New York
36 (Denny Chin, Judge).
37 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
38 DECREED that the judgment and order of the district court are AFFIRMED.
*
The Clerk of the Court is directed to amend the caption to read as shown above.
2
1 Plaintiff-Appellant Timothy Kraft, proceeding pro se, appeals the district court’s judgment,
2 entered March 19, 2010, granting summary judgment in favor of the defendants with respect to his
3 42 U.S.C. § 1983 and state law claims arising from his involuntary hospitalization, and the district
4 court’s post-judgment order, entered April 21, 2010, denying his motion for reconsideration. We
5 assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
6 issues on appeal.
7 We review a district court’s grant of summary judgment de novo, and “will uphold the
8 judgment only if the evidence, viewed in the light most favorable to the party against whom it is
9 entered, demonstrates that there are no genuine issues of material fact and that the judgment was
10 warranted as a matter of law.” Molinari v. Bloomberg, 564 F.3d 587, 595 (2d Cir. 2009) (quoting
11 Barfield v. N.Y. City Health & Hosp. Corp., 537 F.3d 132, 140 (2d Cir. 2008)). We review a district
12 court’s order denying reconsideration for abuse of discretion. Devlin v. Transp. Commc’ns Int’l
13 Union, 175 F.3d 121, 131-32 (2d Cir. 1999). “A district court would necessarily abuse its discretion
14 if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the
15 evidence.” Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998) (quoting
16 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990))
17 (reviewing denial of Fed. R. Civ. P. 60(b) motion).
18 Here, an independent review of the record and relevant case law reveals that the district court
19 properly granted summary judgment in favor of the defendants on Kraft’s claims. We affirm for
20 substantially the same reasons stated by the district court in its thorough and well-reasoned opinion.
21 See Kraft v. City of New York, 696 F. Supp. 2d 403 (S.D.N.Y. 2010). Kraft’s arguments on appeal
22 — many of which merely reiterate arguments he made in opposition to summary judgment and for
3
1 reconsideration below — fail largely for the reasons that the district court rejected them below.1
2 Finally, the district court did not abuse its discretion in denying Kraft’s reconsideration
3 motion, as Kraft failed to demonstrate that the district court’s decision granting summary judgment
4 was based upon an erroneous view of the law or a clearly erroneous assessment of the evidence.
5 We have considered all of Kraft’s arguments and find them to be without merit.
6 Accordingly, we AFFIRM the judgment and order of the district court.
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
1
While Kraft also argues on appeal that Appellee Haddad’s decision to admit him to the
psychiatric ward of Bellevue Hospital was contrary to the requirements of New York State Mental
Hygiene Law § 9.39, he failed to make this argument below when represented by counsel. “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.” Wal-Mart Stores,
Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 124 n.29 (2d Cir. 2005) (quoting United States v. Braunig, 553
F.2d 777, 780 (2d Cir. 1977).
4