20-1975
Klein v. Zugabie
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held
2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 13th day of December, two thousand twenty-one.
4
5 PRESENT: AMALYA L. KEARSE,
6 RAYMOND J. LOHIER, JR.,
7 JOSEPH F. BIANCO,
8 Circuit Judges.
9 ------------------------------------------------------------------
10
11 SHMUEL KLEIN,
12
13 Plaintiff-Appellant,
14
15 v. No. 20-1975-cv
1 THOMAS P. ZUGABIE, IN HIS OFFICIAL
2 CAPACITY AS ROCKLAND COUNTY DISTRICT
3 ATTORNEY, DEMEZA DELHOMME, IN HIS
4 OFFICIAL CAPACITY AS MAYOR OF THE
5 VILLAGE OF SPRING VALLEY, PAUL MODICA, IN
6 HIS OFFICIAL CAPACITY AS A POLICE CHIEF
7 FOR THE VILLAGE OF SPRING VALLEY POLICE
8 DEPARTMENT, POLICE OFFICER JOHN
9 BELTEMPO, INDIVIDUALLY AND IN HIS
10 OFFICIAL CAPACITY AS A POLICE OFFICER FOR
11 THE VILLAGE OF SPRING VALLEY POLICE
12 DEPARTMENT, LOUIS SCORZIELLO,
13 INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
14 AS A POLICE OFFICER OF THE VILLAGE OF
15 SPRING VALLEY POLICE DEPARTMENT, JOHN
16 DOE, JANE ROE, XYZ,
17
18 Defendants-Appellees. ∗
19
20 ------------------------------------------------------------------
21
22 FOR PLAINTIFF-APPELLANT: SHMUEL KLEIN, pro se (Joshua N.
23 Bleichman, on the brief, Bleichman &
24 Klein, Spring Valley, NY)
25
26 FOR DEFENDANTS-APPELLEES
27 Demeza Delhomme, in his official
28 capacity as Mayor of the Village of
29 Spring Valley, Paul Modica, in
30 his official capacity as a Police Chief
31 for the Village of Spring Valley Police
32 Department, Police Officer John
33 Beltempo, individually and in
34 his official capacity as a Police Officer
∗ The Clerk of Court is directed to amend the caption as set forth above.
2
1 for the Village of Spring Valley Police
2 Department, Louis Scorziello,
3 individually and in his official
4 capacity as a police officer of the
5 Village of Spring Valley Police
6 Department: BRIAN S. SOKOLOFF (Cooper Binsky, on
7 the brief), Sokoloff Stern LLP, Carle
8 Place, NY
9
10 FOR DEFENDANTS-APPELLEES
11 Thomas P. Zugabie, in his official
12 capacity as Rockland County
13 District Attorney, and Jane Roe: ROBERT B. WEISSMAN, Saretsky Katz &
14 Dranoff, LLP, Elmsford, NY
15
16 Appeal from a judgment of the United States District Court for the
17 Southern District of New York (Nelson S. Román, Judge).
18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
19 AND DECREED that the judgment of the District Court is AFFIRMED.
20 Shmuel Klein appeals from the May 28, 2020 judgment of the United States
21 District Court for the Southern District of New York (Román, J.) in an action
22 brought under 42 U.S.C. § 1983 claiming violations of various Amendments to
23 the United States Constitution and under New York state law for malicious
24 prosecution and conspiracy to do the same, false arrest, excessive force, assault,
25 battery, and New York state constitutional torts. These claims arose from the
3
1 2010 arrest of Klein, who was an attorney at the time, by Spring Valley Police
2 Department officers John Beltempo and Louis Scorziello and from his
3 prosecution by the Rockland County District Attorney’s Office for retaining and
4 refusing to return packages that the United Parcel Service, Inc. (“UPS”) had
5 misdelivered to him. The District Court dismissed Klein’s claims on various
6 grounds. 1 We assume the parties’ familiarity with the underlying facts,
7 procedural history, and the issues on appeal, to which we refer only as necessary
8 to explain our decision to affirm.
9 This Court reviews de novo a district court’s dismissal of a complaint
10 under Rule 12(b)(1) or 12(b)(6) of the Federal Rules of Civil Procedure.
11 Libertarian Party of Erie Cty. v. Cuomo, 970 F.3d 106, 121 (2d Cir. 2020).
12 We begin with the District Court’s determination that most of Klein’s
13 § 1983 and state claims against the Defendants-Appellees are time-barred. We
14 agree. Klein’s § 1983 claims and New York state constitutional claims are
15 subject to a three-year limitations period. See Hogan v. Fischer, 738 F.3d 509,
1 On December 23, 2020, this Court dismissed as untimely Klein’s appeal relating to the
other defendants who are not the Defendants-Appellees in this appeal: UPS, David P.
Abney, Richard Smith, George Kellinger, and D. Scott Davis.
4
1 517 (2d Cir. 2013) (42 U.S.C. § 1983); 423 S. Salina St. v. City of Syracuse, 68
2 N.Y.2d 474, 482 (1986) (New York state constitutional claims). The state
3 common law claims against Mayor Delhomme, Police Chief Modica, and police
4 officers Beltempo and Scorziello are subject to a limitations period of one year
5 and ninety days. See N.Y. Gen. Mun. Law § 50-i(1)(c); Baity v. City of Buffalo,
6 72 N.Y.S.3d 296, 297 (4th Dep’t 2018). Other than Klein’s malicious prosecution
7 claim, these federal and state law claims accrued in March 2010 and by the latest
8 March 2011, approximately four years before Klein initiated this action.
9 Accordingly, those claims were untimely and properly dismissed.
10 The District Court also determined that the notice of claim filed with the
11 Village of Spring Valley relating to the claims against Mayor Delhomme, Police
12 Chief Modica, and the police officers was deficient because it failed to assert a
13 claim of malicious prosecution. We conclude that it correctly dismissed the
14 malicious prosecution claims for that reason. See Finke v. City of Glen Cove,
15 866 N.Y.S.2d 317, 319 (2d Dep’t 2008) (“[C]auses of action for which a notice of
16 claim is required which are not listed in the plaintiff’s original notice of claim
17 may not be interposed. . . .” (quotation marks omitted)). The District Court also
5
1 properly dismissed the federal malicious prosecution claims against Mayor
2 Delhomme and Police Chief Modica because there were no allegations that could
3 establish their personal involvement in the prosecution. See Farid v. Ellen, 593
4 F.3d 233, 249 (2d Cir. 2010).
5 We next affirm the District Court’s dismissal of the § 1983 malicious
6 prosecution and conspiracy claims for money damages against District Attorney
7 Thomas P. Zugabie 2 on Eleventh Amendment sovereign immunity grounds.
8 Zugabie was sued in his official capacity, while the allegations against him all
9 relate to decisions made while acting in his prosecutorial capacity. And in New
10 York, district attorneys prosecuting a criminal matter act in a quasi-judicial
11 capacity and represent the State, not the county. Ying Jing Gan v. City of New
12 York, 996 F.2d 522, 536 (2d Cir. 1993). Klein’s § 1983 and state law causes of
13 action seeking damages for malicious prosecution against Zugabie in his official
14 capacity (the only capacity in which he was sued) are therefore barred by
15 Eleventh Amendment sovereign immunity. See id. at 529 (“To the extent that
2 The then-District Attorney’s name is Thomas Zugibe, not Zugabie. As the name was
spelled “Zugabie” throughout the proceedings below, “we feel constrained to adhere to
the erroneous spelling,” Ford Motor Credit Co. v, Milhollin, 444 U.S. 555, 555 n.* (1980).
6
1 [a § 1983] claim is asserted against the state official in his official capacity, he may
2 assert the state’s Eleventh Amendment immunity against suit. . . .”).
3 For similar reasons, the District Court was also correct in dismissing the
4 claims for money damages against Defendant Jane Roe, later identified as
5 Assistant District Attorney Jennifer Parietti. To the extent that Klein sued
6 Parietti in her official capacity, Eleventh Amendment sovereign immunity bars
7 the malicious prosecution claim against her. See id. And to the extent that
8 Parietti was sued in her individual capacity for her conduct during the
9 prosecutorial phase of the criminal process against Klein, we agree with the
10 District Court that common-law absolute immunity bars the claims against her.
11 Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995). As the District Court
12 pointed out, all of the allegations against Parietti relate to her exercise of
13 prosecutorial, not investigative or administrative, duties. “[P]rosecutors
14 performing prosecutorial activities that are intimately associated with the judicial
15 phase of the criminal process are entitled to absolute immunity from an action
16 for damages under § 1983.” Ying Jing Gan, 996 F.2d at 530 (quotation marks
17 omitted).
7
1 In addition, although Klein’s prayer for relief sought declaratory and
2 injunctive relief, on appeal he does not press any argument with respect to their
3 dismissal. He has therefore abandoned any quest for that type of relief. See
4 Morrison v. Johnson, 429 F.3d 48, 52 (2d Cir. 2005).
5 Finally, the District Court also properly dismissed Klein’s malicious
6 prosecution and conspiracy claims against police officers Beltempo and
7 Scorziello because they were never served with a summons. We review a
8 district court’s dismissal for insufficient service of process for abuse of discretion.
9 Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002). On appeal, Klein
10 does not meaningfully dispute that service was inadequate. And in any event,
11 having reviewed the record, we find no abuse of discretion in the District Court’s
12 determination.
13 We have considered all of Klein’s remaining arguments and conclude that
14 they are without merit. For the foregoing reasons, we AFFIRM the judgment of
15 the District Court.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk of Court
8
Klein v. Zugabie
Combined Opinion