Rosendale v. Lejeune, (2nd Cir. 2007)
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06-2258-cv
R o s e n d a l e v. Lejeune
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 16th
day of May, two thousand seven.
PRESENT:
HON. JOSEPH M. McLAUGHLIN,
HON. ROBERT D. SACK,
Circuit Judges,
HON. DONALD C. POGUE,*
Judge.
DONALD P. ROSENDALE,
Plaintiff-Appellant,
-v- No. 06-2258-cv
THOMAS LEJEUNE, as Amenia, N.Y. Town
Supervisor, DONALD J. SMITH, as
Amenia, N.Y. Zoning Code Enforcement
Officer, THE TOWN OF AMENIA, NEW
YORK,
Defendants-Appellees.
Appearing for Appellant: Donald P. Rosendale, Amenia, NY, pro se Appearing for Appellees: Terry Rice, Rice & Amon, Suffern, New York Appeal from United States District Court for the Southern District of New York (Charles L. Brieant, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED in part and VACATED AND REMANDED in part, with instructions that it be dismissed without prejudice.
We assume the parties' familiarity with the underlying facts and procedural history of the case.
Plaintiff-appellant Donald P. Rosendale, pro se, appeals from a judgment entered in the United States District Court for the Southern District of New York (Charles L. Brieant, Judge) on March 13, 2006, granting summary judgment to the defendants and dismissing his pendent state law claims without prejudice.
Rosendale v. LeJeune, 420 F. Supp. 2d 315 (S.D.N.Y. 2006) (Rosendale). The district court decided that to the extent that Rosendale's First Amendment retaliation claims arose prior to February 13, 2002, the date the district court accepted Rosendale's Third Amendment complaint in the previous litigation, see Rosendale v. Iuliano, 2002 WL 215656, 2002 U.S. Dist. LEXIS 2173 (Feb. 13, 2002 S.D.N.Y.), aff'd, 63 Fed. Appx. 52 (2d Cir. 2003), the action is barred by the doctrine of res judicata (i.e. the doctrine that once a claim has been finally disposed of by a court, it cannot be brought against the same defendant again), and that to the extent the claim was based on incidents of retaliation on or after February 13, 2002, Rosendale had failed to submit adequate evidence of retaliatory motive, Rosendale, 420 F. Supp. 2d at 326.
We conclude that, for the reasons stated by the district court, res judicata bars the claims based on incidents occurring before February 13, 2002. Although we think there may be sufficient evidence to support Rosendale's First Amendment retaliation claim to the extent that it is based on incidents occurring after February 13, 2002, Rosendale has not exhausted his state remedies with regard to such a claim as required by Williamson County Reg'l Planning Comm'n v. Hamilton Bank,
See Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 350 (2d Cir. 2005). The claim is therefore not yet ripe for review.
We have reviewed the remainder of Rosendale's arguments on appeal and find them to be without merit.
For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED as to the claims based on incidents occurring before February 13, 2002, and VACATED and REMANDED as to the claims based on incidents occurring on or after that date, with instructions that they be dismissed without prejudice for lack of ripeness.
FOR THE COURT: THOMAS ASREEN, Acting Clerk of the Court By:
* The Honorable Donald C. Pogue, of the United States Court of International Trade, sitting by designation.
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