     14-283
     Positano v. Zimmer

                          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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 17th day of October, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       JOHN POSITANO,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-283
16
17       TODD ZIMMER, TODD ZIMMER AND
18       ASSOCIATES, MARGARET GADE, LIZ SMITH,
19                Defendants-Appellees.*
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        JOHN POSITANO, Farmingville, New
23                                             York, pro se.
24


                *
              The Clerk of Court is directed to amend the caption as
         above.
                                                  1
 1   FOR APPELLEES:             No appearance.
 2
 3        Appeal from a judgment of the United States District
 4   Court for the Eastern District of New York (Spatt, J.).
 5
 6        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 7   AND DECREED that the judgment of the district court be
 8   AFFIRMED.
 9
10        In this suit under Title II of the Americans with
11   Disabilities Act (“ADA”), and the analog in the
12   Rehabilitation Act, John Positano appeals from the judgment
13   of the United States District Court for the Eastern District
14   of New York (Spatt, J.), granting judgment on the pleadings
15   in favor of defendants-appellees Todd Zimmer (his ex-wife’s
16   divorce lawyer), Todd Zimmer and Associates (collectively,
17   “Zimmer”), and Margaret Gade (his ex-wife’s friend). We
18   assume the parties’ familiarity with the underlying facts,
19   the procedural history, and the issues presented for review.
20
21        We review de novo a district court’s decision to grant
22   judgment on the pleadings. LaFaro v. N.Y. Cardiothoracic
23   Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009).
24
25        Title II of the ADA applies to “the services, programs,
26   or activities of a public entity.” 42 U.S.C. § 12132.
27   Section 504 of the Rehabilitation Act of 1973 applies to
28   “any program or activity receiving Federal financial
29   assistance.” 29 U.S.C. § 794(a). The district court
30   determined that Positano’s suit under ADA Title II and the
31   Rehabilitation Act1 had not plausibly alleged that
32   defendants Zimmer and Gade were public actors, that they
33   acted under color of law, or that they received federal
34   funding. Accordingly, the district court concluded that
35   Zimmer and Gade were not amenable to suit under these
36   statutes. On our review of the pleadings, we agree for
37   substantially the same reasons as stated by the district
38   court. On appeal, Positano has shown no error in these
39   conclusions.


         1
          Positano’s arguments on appeal reference Title V of
     the ADA; but Positano (a lawyer) cited only Title II in his
     complaint. Cf. Tracy v. Freshwater, 623 F.3d 90, 102 (2d
     Cir. 2010) (noting that the usual solicitude afforded to pro
     se litigants does not apply to a lawyer representing
     himself).
                                  2
1        For the foregoing reasons, and finding no merit in
2   Positano’s other arguments, we hereby AFFIRM the judgment of
3   the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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