         12-4032
         Myers 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 TO 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       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       16th day of July, two thousand thirteen.
 4
 5       PRESENT:
 6                   JON O. NEWMAN,
 7                   RALPH K. WINTER,
 8                   CHRISTOPHER F. DRONEY,
 9                         Circuit Judges.
10       _____________________________________
11
12       Anthony E. Myers,
13
14                                   Plaintiff-Appellant,
15
16                         v.                                                   12-4032
17
18       The City of New York, Warden Evelyn Maribal,
19       and Michael Bloomberg,
20
21                         Defendants-Appellees.
22       _____________________________________
23
24
25       FOR APPELLANT:                     Anthony E. Myers, pro se, Brooklyn, New York
26
27       FOR APPELLEES:                     Dona B. Morris (Pamela Seider Dolgow and Jeffrey Scott
28                                          Dantowitz, on the brief) for Michael A. Cardozo, Corporation
29                                          Counsel of the City of New York, New York, New York

30                Appeal from a judgment of the United States District Court for the Southern District of

31       New York (Engelmayer, J.).
1           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

2    DECREED that the judgment of the district court is AFFIRMED.

3           Appellant Anthony E. Myers appeals from the district court’s judgment dismissing his 42

4    U.S.C. § 1983 complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure

5    12(b)(6). We assume the parties’ familiarity with the underlying facts, the procedural history of

6    the case, and the issues on appeal.

7           We review de novo a district court’s dismissal of a complaint under Federal Rule of Civil

8    Procedure 12(b)(6), “accepting all factual claims in the complaint as true, and drawing all

 9   reasonable inferences in the plaintiff’s favor.” Famous Horse Inc. v. 5th Ave. Photo Inc., 624

10   F.3d 106, 108 (2d Cir. 2010). The complaint must plead “enough facts to state a claim to relief

11   that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although all

12   allegations contained in the complaint are assumed to be true, this rule is “inapplicable to legal

13   conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While pro se complaints must contain

14   sufficient factual allegations to meet the plausibility standard, we look for such allegations by

15   reading pro se complaints with “special solicitude” and interpreting them to raise the “strongest

16   [claims] that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.

17   2006) (per curiam) (emphasis omitted).

18          After an independent review of the record and relevant case law, we conclude that the

19   district court properly dismissed Myers’s § 1983 complaint for failure to state a claim for

20   substantially the same reasons articulated by the district court judge in his well-reasoned opinion

21   and order dismissing the complaint. To the extent Myers claims on appeal that the district court

22   should not have vacated the entry of default judgment against Mayor Michael Bloomberg, he is


                                                      2
 1   incorrect because, at the time the defendants made their motion to dismiss, they were not yet

 2   aware that Mayor Bloomberg had been properly served. In any event, the defendants’ motion to

 3   dismiss noted that Myers’s claims against Mayor Bloomberg could also be appropriately

 4   dismissed on the merits, and the district court granted the defendants’ request to deem the motion

 5   made on Mayor Bloomberg’s behalf.

 6          District courts should generally not dismiss a pro se complaint without granting the

 7   plaintiff leave to amend. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). However,

 8   leave to amend is not necessary when it would be futile. See id. (finding leave to replead would

 9   be futile where the complaint, even when read liberally, did not “suggest[] that the plaintiff has a

10   claim that she has inadequately or inartfully pleaded and that she should therefore be given a

11   chance to reframe”). Here, Myers admitted that he did not properly exhaust his administrative

12   remedies prior to bringing suit, and thus granting him leave to amend would be futile.1

13          We have considered Myers’s remaining arguments on appeal and find them to be without

14   merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
15
16                                                 FOR THE COURT:
17                                                 Catherine O’Hagan Wolfe, Clerk
18




            1
              Because Myers did not exhaust his administrative remedies before bringing suit, we
     need not consider whether his complaint alleges that the individual defendants were personally
     involved in any of the alleged constitutional violations or whether the City of New York could
     be liable under Monell v. City of New York Department of Social Services, 436 U.S. 658 (1978).

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