         09-4133-pr
         Ross v. Goord



                               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.

1                 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2        Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
3        the 8th day of March, two thousand eleven.

 4       PRESENT:
 5                   WILFRED FEINBERG,
 6                   DEBRA ANN LIVINGSTON,
 7                   RAYMOND J. LOHIER, JR.,
 8                               Circuit Judges.
 9       __________________________________________
10
11       MICHAEL A. ROSS,
12
13                       Plaintiff-Appellant,
14
15                              v.                                           09-4133-pr

16       ROBERT WOODS, Superintendent, et al.,
17
18                       Defendants-Appellees,

19       GLENN GOORD, Commissioner, et al.,

20                   Defendants.
21       __________________________________________
22
23       FOR APPELLANT:                 Michael A. Ross, pro se, Comstock, NY.


24       FOR APPELLEES:                 Eric T. Schneiderman, Attorney General of the State of New York;
25                                      Andrea Oser, Deputy Solicitor General; Martin A. Hotvet, Assistant
26                                      Solicitor General (on the brief), New York, NY.
27
 1           Appeal from a judgment of the United States District Court for the Northern District of New

 2   York (Scullin, J.).

 3           UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the judgment of the district court be MODIFIED, and, as modified, is

 5   AFFIRMED.

 6           Appellant Michael A. Ross, proceeding pro se, appeals the district court’s judgment granting

 7   the defendants’ motion for summary judgment and dismissing his complaint. We assume the

 8   parties’ familiarity with the underlying facts and the procedural history of the case.

 9           On appeal, Ross argues only that the defendants are liable for his losses under a theory of

10   fraudulent misrepresentation. Accordingly, he has abandoned the constitutional claims under 42

11   U.S.C. § 1983 that the magistrate judge and district court read into his amended complaint. See Cruz

12   v. Gomez, 202 F.3d 593, 596 n.3 (2d Cir. 2000) (“When a litigant — including a pro se

13   litigant — raises an issue before the district court but does not raise it on appeal, the issue is

14   abandoned.”). Because the fraudulent misrepresentation claim that Ross raises on appeal solely

15   presents an issue of state law, see Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of

16   N.Y., 375 F.3d 168, 186-87 (2d Cir. 2004) (stating the elements of a fraudulent misrepresentation

17   claim under New York law), this claim cannot be brought under § 1983, which “provides a remedy

18   only for the deprivation of ‘rights, privileges, or immunities secured by the Constitution and laws’

19   of the United States,” Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002).

20           Although district courts may exercise supplemental jurisdiction over certain state law claims,

21   see 28 U.S.C. § 1367(a), district courts “may decline to exercise supplemental jurisdiction over a

22   claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction,”

23   id. at § 1367(c)(3). In fact, dismissal of pendent state law claims under such circumstances is


                                                         2
 1   generally appropriate, as “[n]eedless decisions of state law should be avoided both as a matter of

 2   comity and to promote justice between the parties, by procuring for them a surer-footed reading of

 3   applicable law.” United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). Thus, where, as here,

 4   the district court dismissed a plaintiff’s federal law claims and entered judgment in the defendants’

 5   favor without explicitly addressing any pendent state law claims, and the plaintiff raises an issue

6    involving a pendent state law claim on appeal, we have modified the district court’s judgment to

 7   clarify that the dismissal of any asserted state law claim is based on a lack of jurisdiction, and, if

 8   appropriate, affirmed the district court’s judgment as modified. See, e.g., Powell v. Gardner, 891

 9   F.2d 1039, 1047 (2d Cir. 1989); see also Pugh-Perry v. New York Human Resources Admin., No.

10   09-2860-cv, 2010 WL 4846539, at *2-*3 (2d Cir. Nov. 30, 2010) (summary order); Volmar v. North

11   Shore Hosp., 216 F. App’x 136, 137-38 (2d Cir. 2007) (summary order). We therefore direct that,

12   to the extent Ross asserted a fraudulent misrepresentation claim under New York law, the judgment

13   should be modified to clarify that the dismissal of any such claim is based on a lack of jurisdiction.

14          Accordingly, the judgment of the district court is hereby MODIFIED, and, as modified, is

15   hereby AFFIRMED.

16
17                                                  FOR THE COURT:
18                                                  Catherine O’Hagan Wolfe, Clerk

19




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