Curto v. Bender, (2nd Cir. 2007)

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05-2339-cv

C u r t o v. Bender

W.D . N . Y

04-cv-26

Skretny, J.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

A F T E R JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND

F E D E R A L RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

C I T E S A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

M U S T EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)."

U N L E S S THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

W I T H O U T PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE

P A R T Y CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

W I T H THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE

A V A I L A B I L I T Y OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

D A T A B A S E AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

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 14th day of August, two thousand seven.

PRESENT:

HON. AMALYA L. KEARSE,

HON. ROBERT D. SACK,

Circuit Judges,

HON. RICHARD MILLS, District Judge.* X PATRICIA J. CURTO, Plaintiff-Appellant, -v.- No. 05-2339-cv DEBRA BENDER, et al., Defendants-Appellees. -X 1 Appearing for Appellant: Patricia J. Curto, pro se, West Seneca, NY.

2 3 Appearing for Appellees: Jonathan M. Bernstein, Goldberg Segalla 4 LLP, Albany, NY for Debra Bender, Wendy 5 Kummer, Kelly Vacco, Michael Metzger, 6 Town of Boston Justice Court, and Town of 7 Boston; 8 9 George Michael Zimmermann, First 10 Assistant County Attorney (Laurence K.

11 Rubin, Erie County Attorney, on the brief), 12 Buffalo, NY for Amy Goldstein, Brian 13 Parker, Frank Clark, and Erie County 14 District Attorney's Office; 15 16 Edward Lindner, Assistant Solicitor General 17 (Eliot Spitzer, Attorney General of the State 18 of New York, Andrea Oser, Assistant 19 Solicitor General, on the brief), Albany, NY 20 for Christopher J. Burns and David C.

21 Caywood; 22 23 Peter P. Vasilion, Berkowitz & Pace, 24 Orchard Park, NY for John Zittel.

25 Appeal from the United States District Court for the Western District of New York (William M. Skretny, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Plai ntiff Patricia Curto, appearing pro se, appeals from a decision of the United States District Court for the Western District of New York (William M. Skretny, Judge), granting defendants' motion to dismiss her complaint. We assume the parties' familiarity with the underlying facts, procedural history, and specification of appellate issues, which we reference only as necessary to explain our decision to affirm.

This Court reviews de novo the grant of a motion to dismiss under Rule 12(b)(6), accepting as true the factual allegations in the complaint and drawing all inferences in the plaintiff's favor. See Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). However, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d.

Cir. 2002) (brackets and internal citation omitted). "To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Comms., Inc. v. Shaar Fund, Ltd., 2007 WL 1989336 at *5, 2007 U.S. App. LEXIS 16382 at *17 (2d Cir. July 11, 2007) (quoting Bell Atl.

Corp. v. Twombly, --- U.S. , 127 S.Ct. 1955, 1965 (2007)).

We have considered all of Curto's arguments, and, like the district court, we have construed her pro se submissions liberally. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam). We nonetheless find that the complaint fails to state a claim upon which relief can be granted for substantially the same reasons stated in the district court's Decision and Order dated March 28, 2005.

Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:

* The Honorable Richard Mills, United States District Judge for the Central District of Illinois, sitting by designation.

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