13-1621-cv
Candelario v. City of New York, et al.,

                                    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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 7th day of November, two thousand and thirteen.

PRESENT:

           JOHN M. WALKER, JR.,
           JOSÉ A. CABRANES,
           RAYMOND J. LOHIER, JR.,
                                Circuit Judges.
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JOSEPH CANDELARIO,

                     Plaintiff-Appellant,

                     -v.-                                                                  No. 13-1621-cv

CITY OF NEW YORK and NEW YORK CITY POLICE
DEPARTMENT, et al.,

                     Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:                                                   ANNETTE G. HASAPIDIS (Schwartz Goldstone
                                                                           & Campisi, LLP, New York, NY, on the brief),
                                                                           Law Offices of Annette G. Hasapidis,
                                                                           Ridgefield, CT.

FOR DEFENDANTS-APPELLEES:                                                 EDWARD F.X. HART (Drake A. Colley, on the
                                                                          brief), Of Counsel, for Michael A. Cardozo,
                                                                          Corporation Counsel of the City of New
                                                                          York, New York, NY.

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        Appeal from an April 3, 2013 order of the United States District Court for the Southern
District of New York (Loretta A. Preska, Chief Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the April 3, 2013 order of the District Court be AFFIRMED.

        Joseph Candelario (“Candelario”) appeals from the April 3, 2013 judgment of the District
Court dismissing his claims under 42 U.S.C. § 19831 for, inter alia, false arrest, malicious prosecution,
malicious abuse of process, and conspiracy against all defendants. 2 The District Court dismissed all
claims against the City of New York and the City of Yonkers pursuant to Federal Rule of Civil
Procedure 12(b)(6),3 and sua sponte dismissed without prejudice all claims against all the individual
defendants on the basis that they were not timely served under Federal Rule of Civil Procedure
4(m), and on the merits. 4 See Candelario v. City of New York, No. 12 Civ. 1206 (LAP), 2013 WL
1339102, at *11 (S.D.N.Y. Apr. 3, 2013). Candelario now appeals the portions of the District
Court’s judgment dismissing his § 1983 claims. Alternatively, he argues that he should have been
permitted to amend his Complaint pursuant to Federal Rule of Civil Procedure 15(a). Familiarity
with the factual and procedural background is presumed.

        Candelario does not appeal the District Court’s judgment insofar as it dismissed the
individual defendants under Rule 4(m) for improper service. Reply Br. at 16. Thus, the only issue
on appeal is whether the District Court erred in dismissing the municipalities. 5 We review a district
court’s dismissal of a complaint under Rule 12(b)(6) de novo, and the failure to grant leave to amend
for “abuse of discretion.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98, 108 (2d Cir.



      1 To state a claim under § 1983, a plaintiff must prove that defendants, while acting “under color of law,” deprived

plaintiff of a right secured by the “Constitution and laws” of the United States. Adickes v. S.H. Kress & Co., 398 U.S.
144, 150, 174 n.44 (1970).
     2  Candelario also sued under § 1983 for denial of medical treatment, and brought state law claims, but consented
to dismissal of the state law claims and withdrew his claim for denial of medical treatment. A142-45. He does not raise
these claims on appeal, nor does he contest dismissal of the New York or Yonkers Police Departments which, as
agencies of municipalities, are non-suable entities. Jenkins v. City of New York, 478 F.3d 76, 93 n. 19 (2d Cir. 2007).
     3   The District Court dismissed non-moving defendant City of Yonkers sua sponte.
      4 Because we affirm on the basis of Rule 4(m) we do not consider the merits of Candelario’s claims against the

individual defendants.
      5 Monell v. Department of Social Services, 436 U.S. 658 (1978), established that in order to sustain a § 1983 claim

against a municipality, a plaintiff must demonstrate that “the action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality’s]
officers.” Id. at 690. Municipal liability may also be established by showing a widespread practice of unconstitutional
conduct or deliberate indifference in training municipal employees resulting in constitutional violations. See, e.g. Connick
v. Thompson, 131 S. Ct. 1350, 1359 (2011).

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2007). The District Court held―independent of its findings as to whether Candelario’s rights were
violated―that Candelario “failed to identify any policies or customs . . . under which [d]efendants
may have violated [his] rights.” Candelario, 2013 WL 1339102, at *10. We agree and, accordingly,
affirm the District Court’s judgment dismissing the municipal defendants.

          We further conclude that the District Court did not err by failing to grant leave to amend
under Federal Rule of Civil Procedure 15(a).6 The individual defendants were dismissed, without
prejudice, for improper service, which does not implicate the Complaint. And nothing in the
Complaint suggests that the opportunity to replead would enable Candelario to state a plausible
claim against the municipal defendants. Where permitting plaintiff to amend would be futile, it was
not error to implicitly deny leave to replead. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000).

                                                  CONCLUSION

        We have reviewed the record and Candelario’s arguments on appeal and find them to be
without merit. For the reasons set forth above, we AFFIRM the April 3, 2012 judgment of the
District Court.



                                                         FOR THE COURT,
                                                         Catherine O’Hagan Wolfe, Clerk of Court




     6 Rule 15(a) provides, in relevant part, that “a party may amend its pleading only with . . . the court’s leave. The

court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).



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