    10-0158-cv
    Fenner v. City of New York



                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                    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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

         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 September, two thousand ten.

    PRESENT:
                      DEBRA ANN LIVINGSTON,
                      GERARD E. LYNCH,
                                Circuit Judges,
                      WILLIAM K. SESSIONS III,*
                                District Judge.

    __________________________________________

    Braxton Fenner,

                      Plaintiff-Appellant,

                      v.                                               10-0158-cv

    City of New York,

              Defendant-Appellee.
    __________________________________________




             *
             The Honorable William K. Sessions III, Chief Judge of the United States District Court
    for the District of Vermont, sitting by designation.
FOR APPELLANT:       Braxton Fenner, South Colonie, NY.

FOR APPELLEE:        Michael A. Cardozo, Corporation Counsel for
                     the City of New York; Julie Steiner, Senior
                     Counsel, Appeals Division, New York, NY.

     Appeal from a judgment of the United States District Court

for the Eastern District of New York (Cogan, J.)

     UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be AFFIRMED.

     Appellant Braxton Fenner, an attorney proceeding pro se,

appeals the judgment of the district court granting the City of

New York’s motion for summary judgment, and dismissing his Fourth

Amendment claims for unlawful search and seizure.    We assume the

parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

     We review orders granting summary judgment de novo and focus

on whether the district court properly concluded that there was

no genuine issue as to any material fact and that the moving

party was entitled to judgment as a matter of law.    See Miller v.

Wolpoff & Abrams, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003);

Republic Nat’l Bank v. Delta Air Lines, 263 F.3d 42, 46 (2d Cir.

2001); Allstate Ins. Co. v. Mazzola, 175 F.3d 255, 258 (2d Cir.

1999).   “In determining whether there are genuine issues of

material fact, we are ‘required to resolve all ambiguities and

draw all permissible factual inferences in favor of the party

against whom summary judgment is sought.’”   Terry v. Ashcroft,

                                 2
336 F.3d 128, 137 (2d Cir. 2003).

     Fenner, who brought suit only against the City of New York,

and not against any individual defendants, advances two claims of

error on appeal.    He asserts, first, that, contrary to the

district court’s decision, he can proceed directly against the

City on his Fourth Amendment claims, and, second, that he

presented sufficient evidence to prevail on those claims at

summary judgment.    Both of these arguments are unavailing.

     We have long held that “when [42 U.S.C.] § 1983 provides a

remedy, an implied cause of action grounded on the Constitution

is not available.”    Pauk v. Bd. of Trustees of City Univ. of New

York, 654 F.2d 856, 865 (2d Cir. 1981).    Thus, because, pursuant

to Monell v. Department of Social Services, 436 U.S. 658, 690-91

(1978), a local government like the City can be liable under

§ 1983 for violations of the Fourth Amendment, Fenner was

required to bring his Fourth Amendment claims under that statute,

and could not proceed directly against the City under the

Constitution.   See Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir.

1979) (en banc) (per curiam) (holding that, following Monell, a

plaintiff could not proceed directly against a municipality under

the Fourteenth Amendment).

     That Fenner’s claims were cognizable only under § 1983 meant

that, to survive summary judgment, he was obligated to produce

evidence sufficient to satisfy the requirements of Monell; i.e.,

facts showing “(1) an official policy or custom that (2) cause[d
                                3
him] to be subjected to (3) a denial of a constitutional right.”

Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983); accord

Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007).

Here, Fenner alleged only that certain New York City Police

Department officers entered his apartment and seized him in

violation of his Fourth Amendment rights; he pled no facts, nor

offered any evidence, to show that these actions occurred

pursuant to a City policy or practice.   Fenner’s claims thus

failed as a matter of law, and the district court correctly

granted the City’s motion for summary judgment.1

     We have considered all of Fenner’s remaining claims of error

and found them to be without merit.   Accordingly, for the

foregoing reasons, the judgment of the district court is hereby

AFFIRMED.




     1
      Although we might ordinarily afford a pro se party greater
leniency as to the pleading and evidentiary requirements of a
municipal liability claim under Monell—and, in this respect,
possibly construe such a complaint as also raising claims against
the individual police officers, so as to avoid the need to prove
a policy or practice—Fenner is not a typical pro se litigant. He
is an attorney proceeding pro se and is thus not accorded the
same degree of leniency. See Harbulak v. County of Suffolk, 654
F.2d 194, 198 (2d Cir. 1981) (an attorney appearing pro se
“cannot claim the same special consideration which the courts
customarily grant to pro se parties”); Holtz v. Rockefeller &
Co., Inc., 258 F.3d 62, 82 n.4 (2d Cir. 2001) (same). Indeed,
the record shows that Fenner previously served as an Assistant
District Attorney for Kings County, New York, and thus should be
expected to be familiar with the requirements for proving a
municipal liability claim under § 1983.

                                4
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk




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