Circuit Judges. ISRAEL ROGERS, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Rogers v. New York Transit APPEARING FOR APPELLEE, (2nd Cir. 2001)

Docket Number: 00-9313

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 3rd day of July , two thousand one.

Present:

Hon. Richard J. Cardamone, Hon. Fred I. Parker, Hon. Richard D. Cudahy*, Circuit Judges.

ISRAEL ROGERS, Plaintiff-Appellant, v. 00-9313

NEW YORK CITY TRANSIT AUTHORITY, CAB ASSOCIATES, LOCAL UNION 731, Defendants-Appellees.

APPEARING FOR APPELLANT: Israel Rogers, pro se.

Rogers v. New York Transit Docket No. 00-9313

APPEARING FOR APPELLEE NEW YORK CITY TRANSIT AUTHORITY: Richard Schoolman, New York City Transit Authority Brooklyn, NY APPEARING FOR APPELLEE CAB CONSTRUCTION COMPANY: Jonah C. Grill, Tunstead, Schechter & Torre, Jericho, NY APPEARING FOR APPELLEE LOCAL UNION 731: Judith Laudati, Bisceglie & Friedman, Newark, NJ Appeal from the United States District Court for the Southern District of New York (Sidney H. Stein, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the decision of said district court be and it hereby is AFFIRMED.

Plaintiff-Appellant Israel Rogers appeals from a September 15, 2000 judgment of the district court entered upon an August 31, 2000 order granting summary judgment in favor of New York City Transit Authority, CAB Construction Company ("CAB"), and the Excavating and Common Laborers Union, Local Union 731.

Plaintiff filed an action under 42 U.S.C. 1983 in July Rogers v. New York Transit Docket No. 00-9313

1997, alleging that his employment with CAB had been terminated by CAB without notice or hearing and on account of his race. The Defendants moved for summary judgement, arguing among other things that Rogers's action should be dismissed because the Defendants' alleged discriminatory actions were not under color of state law within the meaning of § 1983. On August 28, 1998, the Honorable Henry Pitman, United States Magistrate Judge, submitted a Report and Recommendation in which he concluded that CAB and Local 731 were not acting under color of state law, that nothing in the relationship between CAB, Local 731 and NYCTA suggests state action, and that NYCTA had no part in the termination of Rogers's employment. The district court adopted these conclusions in an order dated August 28, 1998, and dismissed Rogers's complaint.

On February 2, 2000, this Court vacated that order on the ground that the district court did not give Rogers adequate notice concerning the "nature and consequences" of a summary judgment motion as required by our holding in Vital v.

Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999). On remand, the district court provided the appropriate notice in an order dated May 23, 2000.

Rogers v. New York Transit Docket No. 00-9313

On August 16, 2000, after the appropriate notice was given, Rogers submitted additional documents intended to defeat the motion. In an order dated August 29, 2000, the district court determined that Rogers's additional submissions had not raised any material issue of fact that would cast doubt on Magistrate Judge Pitman's recommendations, and granted summary judgment in favor of Defendants-Appellees.

We affirm for substantially the same reasons as set forth in Magistrate Judge Pitman's August 28, 1998 report and recommendation and the district court's orders of September 28, 1998 and August 29, 2000.

For the reasons set forth above, the judgment of the district court is AFFIRMED.

[*]-. The Honorable Richard J. Cudahy, United States Court of Appeals for the Seventh Circuit, sitting by designation.