Shechet v. Doar

12-3240
Shechet v. Doar

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.

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 1st day of May, two thousand thirteen.

PRESENT:
ROSEMARY S. POOLER,
CHRISTOPHER F. DRONEY,
Circuit Judges,
CATHY SEIBEL,*
District Judge.
_________________________________________

Jacob Shechet,

Plaintiff-Appellant,

v. 12-3240

Robert Doar, Patricia M. Smith, First Deputy Commissioner Human Resources
Administration, Frances Parous-Abbadessa, Deputy Commissioner Office of Child Support
Enforcement, Linda La Greca, Deputy Commissioner Office of Child Support
Enforcement, Polina Kamara, Supervisor Office of Child Support Enforcement, Marvin
Bettis, Specialist Assistant Office of Child Support Enforcement, Anna Kuchukova,
Supervisor Office of Child Support Enforcement, Sean Banner, Office of Child Support
Enforcement Representative, Arlene Weberg, General Counsel Human Resources

*
The Honorable Cathy Seibel, United States District Court for the Southern District
of New York, sitting by designation.
Administration OSS, Roy A. Esnard, General Counsel Human Resources Administration,
Department of Social Services,
Defendants-Appellees.**
_________________________________________

FOR APPELLANT: Jacob Shechet, Los Angeles, CA, pro se

FOR APPELLEES: No appearances

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.

Jacob Shechet appeals from the July 25, 2012 order of the United States District

Court for the Southern District of New York (Preska, C.J.) declining to reconsider its sua

sponte dismissal of his 42 U.S.C. § 1983 complaint for lack of subject matter jurisdiction

and failure to state a claim on which relief could be granted. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

As an initial matter, Shechet’s reconsideration motion was not filed within 28 days

of the district court’s entry of judgment. Shechet filed his motion on June 11, 2012, and he

appears to have confused the date that the judgment was entered, May 9, 2012, with the

date that a docket entry indicating that the judgment had been transferred for processing

was entered, May 15, 2012. Therefore, the district court correctly construed his motion as

brought under Federal Rule of Civil Procedure 60(b) rather than Rules 52(b), 59(b), or

59(e), and, furthermore, his notice of appeal is timely as to the denial of the reconsideration

**
The Clerk of the Court is directed to amend the caption as shown above.

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motion, but not as to the underlying judgment. See “R” Best Produce, Inc. v. DiSapio, 540

F.3d 115, 121-22 (2d Cir. 2008); Branum v. Clark, 927 F.2d 698, 704 (2d Cir. 1991).

This Court reviews the district court’s denial of a motion for reconsideration under

Rule 60(b) for abuse of discretion. Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121,

125 (2d Cir. 2011). A district court abuses its discretion when its decision rests on an error

of law or a clearly erroneous factual finding or cannot be found within the range of

permissible decisions. Id.

An independent review of the record and relevant case law reveals that the district

court did not err legally or make any clearly erroneous factual determinations in deciding

that, pursuant to Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923), and District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86 (1983), it did not have

jurisdiction to review a final judgment of a New York state court, and that the defendants

were immune from suit in their official capacities under Dube v. State University of New

York, 900 F.2d 587, 594 (2d Cir. 1990) and Monell v. Department of Social Services of City

of New York, 436 U.S. 658, 694 (1978). Therefore, we find no errors in the district court’s

dismissal of those claims, or in its denial of Shechet’s motion to reconsider with respect to

those claims.

Shechet also raised claims against the defendants in their individual capacities for

money damages for enforcing an allegedly non-existent or vacated order, and the

reconsideration motion alleged that the district court had erred in dismissing his complaint

without notice and an opportunity to be heard. Generally, a district court should not sua

sponte dismiss an action without affording a plaintiff notice and an opportunity to be heard.

Snider v. Melindez, 199 F.3d 108, 112-13 (2d Cir. 1999). Furthermore, leave to file an
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amended pleading is ordinarily given freely, unless granting such leave would be futile.

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). The record here demonstrates that

granting leave to amend would be futile given the defects identified by the district court.

Shechet’s reconsideration motion did not address these defects or assert that they could be

cured by filing an amended complaint. The district court did not abuse its discretion in

denying Shechet’s motion for reconsideration.

We have considered the remainder of Shechet’s arguments and find them to be

without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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