16-1083-cv
McNiece v. Connecticut
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 23rd day of June, two thousand seventeen.
PRESENT:
GUIDO CALABRESI,
ROSEMARY S. POOLER,
Circuit Judges,
BRIAN M. COGAN,1
District Judge.
_____________________________________
Adam P. McNiece,
Plaintiff - Appellant,
v. 16-1083
State of Connecticut, J. Paul Vance, Jr., in his official
capacity as the Claims Commissioner for the State of
Connecticut, George Jepsen, in his official capacity
as the Attorney General for the State of Connecticut,
Town of Waterford, Ryan Ryan Deluca LLP, Judicial
Branch, State of Connecticut,
Defendants - Appellees.
_____________________________________
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Judge Brian M. Cogan, of the United States District Court for the Eastern District of New York,
sitting by designation.
For plaintiff-appellant: Adam P. McNiece, pro se, Yankeetown,
Florida.
For defendants-appellees State of Maura Murphy Osborne, Thomas P.
Connecticut, Connecticut Attorney Clifford, III, Assistant Attorneys General,
General George Jepsen, State of for George Jepsen, Attorney General of
Connecticut Judicial Branch, and Connecticut, Hartford, Connecticut.
Connecticut Claims Commissioner:
For defendant-appellee Town of Mark A. Milano, Milano & Wanat LLC,
Waterford: Branford, Connecticut.
For defendant-appellee Ryan Ryan Michael T. Ryan, Ryan Ryan Deluca LLP,
Deluca LLP: Stamford, Connecticut.
Appeal from a judgment of the United States District Court for the District of Connecticut
(Shea, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Adam P. McNiece, proceeding pro se, appeals the district court’s judgment
dismissing his complaint. McNiece sued Connecticut, its officials and courts, the Town of
Waterford, and a law firm, asserting that the state courts and the Town had violated the Americans
with Disabilities Act (“ADA”), and that his right to due process was violated by the state statutory
requirement that he submit his claims to the Connecticut Claims Commissioner before he could
sue the State. He also raised state-law claims. The district court dismissed the federal claims
based on lack of standing, sovereign immunity, and failure to state a claim, and then declined to
exercise jurisdiction over the state law claims. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
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We review de novo dismissals for failure to state a claim and for lack of standing. Mary
Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 151 (2d Cir. 2013) (failure to state a claim);
W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008)
(standing).
Upon review, we conclude that the district court properly ruled that McNiece lacked
standing to raise his due process claim, and that it properly dismissed his ADA claim against
Connecticut and the Connecticut Judicial Branch. We affirm for substantially the reasons stated
by the district court in its March 22, 2016 decision.
Although the district court did not explicitly discuss McNiece’s request for an injunction
prohibiting “further acts of discrimination,” dismissal of that claim was appropriate. Sovereign
immunity does not bar claims for prospective injunctive relief “against individual officers in their
official capacity.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (applying the doctrine
originated in Ex parte Young, 209 U.S. 123 (1908), to ADA claim). Nonetheless, dismissal of the
injunctive claim was proper because McNiece did not sue an individual officer for violating the
ADA and, even if he had, the district court’s sovereign immunity ruling showed that he would be
unable to state an ADA claim. See Mary Jo C., 707 F.3d at 152 (“[I]f a plaintiff cannot state a
Title II claim, the court's sovereign immunity inquiry is at an end.”).
As to McNiece’s claim against the Town of Waterford, his complaint alleged that it had
violated 42 U.S.C. § 12186 by failing to provide him “reasonable ADA accommodations of audio
recordings of public meetings.” Section 12186 directs the Secretary of Transportation to issue
ADA regulations, and has no obvious relevance to McNiece or the Town. In dismissing this
claim, the district court considered only whether McNiece stated a claim under § 12186. Because
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pro se submissions must be construed liberally and interpreted “to raise the strongest arguments
they suggest,” Nowakowski v. New York, 835 F.3d 210, 215 (2d Cir. 2016) (citation omitted), the
district court should have construed McNiece’s complaint as raising a claim under Title II of the
ADA for failure to accommodate his disability.
Nonetheless, we “can affirm the dismissal of a complaint on any basis supported by the
record,” In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 109, 117 (2d Cir. 2013), and, even if
liberally construed, McNiece’s complaint does not state a claim against the Town under Title II of
the ADA. To state a claim under Title II of the ADA, McNiece must allege, among other things,
that, “as a practical matter,” the Town “denied [him] meaningful access to services, programs or
activities to which he” was “legally entitled.” Wright v. N.Y. State Dep’t of Corr., 831 F.3d 64, 72
(2d Cir. 2016) (internal quotation marks and citation omitted). McNiece did not allege that he had
requested an accommodation, or that the town had denied him one. See Tsombanidis v. W. Haven
Fire Dep’t, 352 F.3d 565, 578 (2d Cir. 2003) (“To prevail on a reasonable accommodation claim,
plaintiffs must first provide the governmental entity an opportunity to accommodate them . . . .”).
Nor did he provide any facts about the relevant public meetings, such as which meetings he sought
recordings of and why he needed them. In particular, this absence of detail leaves questions as to
why, and how, he lacked “meaningful access” to meetings that are open to the public and therefore
could be attended in person. Accordingly, McNiece did not plead facts sufficient to “nudge[]” his
claims “across the line from conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007).
As to the claims that McNiece has raised for the first time on appeal, we do not generally
consider claims that were not raised in the district court, Harrison v. Republic of Sudan, 838 F.3d
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86, 96 (2d Cir. 2016), and there is no reason to do so in this case. Finally, McNiece’s complaint
raised state-law claims against a law firm that had previously represented the Town. He does not
discuss those claims in his appellate brief, and has therefore abandoned any challenge to the
dismissal of his claims against the law firm. See LoSacco v. City of Middletown, 71 F.3d 88,
92-93 (2d Cir. 1995).
We have considered all of McNiece’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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