11-4270
Shibeshi 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 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 30th day of August, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
_____________________________________
Shewaferaw S. Shibeshi,
Plaintiff-Appellant,
v. 11-4270
City of New York,
Defendant-Appellee.
_____________________________________
FOR APPELLANT: Shewaferaw S. Shibeshi, pro se, Mifflin, PA.
FOR APPELLEE: No appearance.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Preska, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Shewaferaw S. Shibeshi, proceeding pro se, appeals from the district court’s
judgment sua sponte dismissing his complaint pursuant to 28 U.S.C. § 1915(e) and Fed. R. Civ.
P. 12(h)(3). We assume the parties’ familiarity with the underlying facts, the procedural history
of the case, and the issues on appeal.
This Court reviews de novo both a district court’s sua sponte dismissal of a complaint
pursuant to § 1915(e)(2) for frivolity and failure to state a claim, see Giano v. Goord, 250 F.3d
146, 149-50 (2d Cir. 2001), and a district court’s dismissal of a complaint for lack of subject
matter jurisdiction, see Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 79-
80 (2d Cir. 2005). The complaint must plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although all
allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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.” Id.
Although pro se complaints must contain sufficient factual allegations to meet the
plausibility standard, the Court will look for such allegations by reading pro se complaints with
“special solicitude” and interpreting them to raise the “strongest arguments that they suggest.”
Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam)
(internal quotation marks omitted). In addition to the requirement that pro se complaints be
liberally construed, this Court has held that district courts should generally not dismiss a pro se
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complaint without granting the plaintiff leave to amend. See Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000). However, leave to amend is not necessary when it would be futile. See id.
(finding leave to replead would be futile where the complaint, even when read liberally, did not
“suggest[] that the plaintiff has a claim that she has inadequately or inartfully pleaded and that
she should therefore be given a chance to reframe”).
On appeal, Shibeshi does not raise any arguments with regard to the alleged forfeiture of
his vehicle, and he has therefore abandoned any such arguments. See LoSacco v. City of
Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). As for his remaining claims, having conducted
an independent review of the record and relevant case law, we conclude that the district court
properly dismissed Shibeshi’s complaint for substantially the reasons stated by the district court
in its well-reasoned order. Moreover, although the district court dismissed the complaint without
providing an opportunity to amend, a de novo review of that complaint indicates that any
amendment would have been futile.
We have considered all of Shibeshi’s arguments on appeal and find them to be without
merit. Accordingly, the order of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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