Sommer v. County of Suffolk, (2nd Cir. 2009)

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07-2109-cv

Sommer v. County of Suffolk

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1

AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

(SUMMARY ORDER). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE

ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE 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 13th day of January, two thousand nine.

PRESENT:

HON. ROBERT A. KATZMANN,

HON. REENA RAGGI,

Circuit Judges,

HON. JOHN F. KEENAN,*

District Judge.

Samuel Sommer,

Plaintiff-Appellant,

SUMMARY ORDER

-v.- 07-2109-cv

County of Suffolk, District Attorney Thomas Spotta,

ADA Grazia DiVincenzo, Andrew A. Crecca,

Defendants-Appellees.

For Plaintiff-Appellant: Samuel Sommer, Liberty, New York, pro se For Defendants-Appellees: Christine Malafi (Arlene S. Zwilling on the brief), for defendants appellees County of Suffolk, District Attorney Thomas Spotta, ADA Grazia DiVincenzo, Hauppauge, New York; Andrew M.

Cuomo (Oren L. Zeve on the brief) for Andrew A. Crecca, New York, New York.

Appeal from the United States District Court for the Eastern District of New York (Gleeson, J.).

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is AFFIRMED.

Samuel Sommer appeals from the judgment of the district court granting the defendants' motions to dismiss Sommer's 42U.S.C. § 1983 complaint. The defendants-appellees assert that the district court's judgment should be affirmed. We assume the parties' familiarity with the facts, proceedings below, and specification of issues on appeal.

This Court reviews de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); see also Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). Even construing Sommer's complaint liberally and accepting its factual allegations as true, an independent review shows that the district court properly dismissed Sommer's complaint because (1) qualified immunity shielded defendant-appellee DiVincenzo from suit, (2) Sommer failed to allege personal involvement on the part of defendant-appellee Spotta, (3) as to defendant-appellee County of Suffolk, Sommer failed to allege that any allegedly unconstitutional actions were part of a municipality-wide practice or custom; and (4) Judge Crecca was shielded from suit by the doctrine of absolute immunity.

Moreover, as Judge Crecca argues on appeal, Sommer's suit against Judge Crecca in his official capacity is barred by the Eleventh Amendment. See Kimel v. Florida Bd. of Regents, 528 U.S.

62, 73 (2000); Ying Jing Gan v. City of N.Y., 996 F.2d 522, 529 (2d Cir. 1993)).

As the district court observed, much litigation would have been obviated if Suffolk County had given appellant the autopsy report he seeks. We are not ordering, but suggesting, that the County do so.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

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

* The Honorable John F. Keenan, District Judge for the Southern District of New York, sitting by designation.

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