McCain v. Levitt

12-2571
McCain v. Levitt

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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
16th day of October, two thousand thirteen.

PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DENNIS JACOBS,
ROSEMARY S. POOLER,
Circuit Judges.
__________________________________________________________

ZACK McCAIN,

Plaintiff-Appellant,

v. 12-2571

LINDA LEVITT, sued in her official capacity, CHITTENDON
COUNTY, MARRY MORRISSEY, sued in her individual and official
capacities of her Administrative Functions, JANE DOE, sued in her
individual and official capacities of her Administrative Functions,
WHITNEY TAYLOR, sued in her individual and official capacities,
JOHN DOE, sued in his individual and official capacities of his
Administrative Functions, GREG GRAHAMS, sued in his individual
and official capacities, ROBERT HOFMANN, sued in his individual
and official capacities, MICHAEL J. STRAUB, sued in his individual
and official capacities, DARRELL GRAHAM, individual and official
capacities,
Defendants-Appellees,
CITY OF BURLINGTON, BRIAN LABARGE, sued in his individual
and official capacities, JESS STEWART, sued in her individual and
official capacities, JAMES MULLER, sued in his individual and official
capacities, LAURA R. PEZZULO,

Defendants.

__________________________________________________________

For Plaintiff-Appellant: Zack McCain, pro se, Burlington, VT.

For Defendants-Appellees: John Serafino, Ryan Smith & Carbine, Ltd., Rutland, VT, for
Linda Levitt; Matthew David Anderson, Pratt Vreeland Kennelly
Martin & White, Ltd., Rutland, VT, for Michael Straub; Jana M.
Brown, Assistant Attorney General, Montpelier, VT, for Whitney
Taylor, Mary Morrissey, Robert Hofmann, and Darryl Graham.

Appeal from a judgment of the United States District Court for the District of Vermont

(Sessions, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Zack McCain, proceeding pro se, appeals from August 30, 2010,

March 30, 2011, August 18, 2011, and November 9, 2011, Opinions and Orders of the United

States District Court for the District of Vermont (Sessions, J.) dismissing McCain’s claims

against various state officials and private defendants. We assume the parties’ familiarity with

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

As an initial matter, “although [McCain] filed a premature notice of appeal, because the

district court entered an amended final judgment before the appeal was heard and [the

defendants] suffered no prejudice, the jurisdictional defect has been cured.” Zeno v. Pine Plains

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Cent. Sch. Dist., 702 F.3d 655, 663 n.6 (2d Cir. 2012). However, McCain does not challenge the

dismissal of defendants other than Defendants-Appellees Levitt, Morrissey, Taylor, Straub,

Graham, and, arguably, Hofmann. The Court therefore declines to review the dismissal of the

other defendants. See Lore v. City of Syracuse, 670 F.3d 127, 149 (2d Cir. 2012) (“We regard as

waived any challenges . . . to adverse decisions that are undiscussed.”).

With respect to Defendants-Appellees, we affirm the dismissal of these parties from the

case for substantially the reasons set out at length by the district court in its numerous clear and

comprehensive memoranda. We have independently reviewed the record and the parties’

arguments on appeal, and we find McCain’s arguments to be without merit.

Finally, we also deny the motion to disqualify, as McCain has not established that Judge

Jacobs’s impartiality “might reasonably be questioned,” or that overseeing proceedings

involving judicial misconduct complaints, including McCain’s complaint against a judge who,

while sitting as a state court judge, held a status hearing in a criminal proceeding related to the

instant action, gave Judge Jacobs “personal knowledge of disputed evidentiary facts concerning

[this] proceeding.” See 28 U.S.C. § 455 (a), (b)(1).

For the reasons set forth herein, the judgment of the district court is AFFIRMED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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