16-3215-cv
Thomas v. N.Y.C. Dep’t of Educ.
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 11th day of October, two
thousand seventeen.
PRESENT:
Peter W. Hall,
Christopher F. Droney,
Circuit Judges,
Laura Taylor Swain,*
District Judge.
_____________________________________
Michael P. Thomas,
Plaintiff - Appellant,
v. 16-3215-cv
New York City Department of Education, Richard J.
Condon, Special Commissioner of Investigation for the
* Judge Laura Taylor Swain, of the United States District Court for the Southern District of New
York, sitting by designation.
New York City School District, Gerald P. Conroy, Michael
Salek, Charles Kwan, Stephen Koss, David J. Jimenez,
Defendants - Appellees.
_____________________________________
FOR APPELLANT: MICHAEL P. THOMAS, pro se, New York, New
York.
FOR DEFENDANTS-APPELLEES: JOHN K. CROSSMAN, Zukerman Gore
Brandeis & Crossman, LLP, New York,
New York.
MEGAN E.K. MONTCALM, Assistant
Corporation Counsel (Fay S. Ng, Assistant
Corporation Counsel, on the brief), for
Zachary Carter, Corporation Counsel of the
City of New York, New York, New York.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Furman, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Michael Thomas, proceeding pro se, sued the New York City
Department of Education (“DOE”), officials from the DOE and the Manhattan Center
for Science of Mathematics (“MCSM”) (the school at which Thomas formerly taught),
and MCSM’s former PTA president, asserting a First Amendment retaliation claim
under 42 U.S.C. § 1983. Thomas appeals from the district court’s dismissal of his
complaint as barred by the applicable three-year statute of limitations, and its
determination that equitable tolling did not apply to toll the statute of limitations.
We assume the parties’ familiarity with the underlying facts, the procedural history
of the case, and the issues on appeal.
We review de novo a district court’s decision to grant a motion to dismiss,
including its interpretation and application of a statute of limitations. See City of
Pontiac Gen. Emps.’ Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011)
(citations omitted). Where, as here, the district court has applied the correct legal
standards and based its decision on findings of fact that were supported by the
evidence, we review the denial of equitable tolling for abuse of discretion. Belot v.
Burge, 490 F.3d 201, 206 (2d Cir. 2007). To survive a Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss, a 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). A claim will have “facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
At oral argument Thomas conceded that his claim against Mr. Michael Salek
was untimely. Thomas also agreed with Defendants-Appellees that his claims
against David Jimenez and Charles Kwan, with respect to their allegedly false
allegations and request for a psychological evaluation, were untimely. Thomas also
conceded that his Monell claim against the New York City Department of Education
was untimely. We will consider Thomas’s remaining claims on appeal.
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The district court properly dismissed Thomas’s complaint, and we affirm for
substantially the reasons stated by the district court in its August 31, 2016 decision.
As the district court reasoned, Thomas’s cause of action accrued, at the latest, in
2010, when he had a “complete and present cause of action” for First Amendment
retaliation. See Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015); see also Dorsett
v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (per curiam) (outlining the
elements for a First Amendment retaliation claim). Equitable tolling did not apply
because “accrual of a cause of action based on specific acts of which a plaintiff was
aware cannot be postponed, nor can a limitations period be tolled, simply be alleging
that the acts were taken pursuant to a conspiracy.” Pearl v. City of Long Beach, 296
F.3d 76, 87 (2d Cir. 2002) (citations omitted).
Because the district court properly dismissed Thomas’s complaint as untimely,
we need not consider whether his claims were meritorious or barred by the doctrine
of res judicata. The judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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