19-2943-cv
Jordan v. New York State Dep't of Labor

                                  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 30th day of June, two thousand twenty.

PRESENT:             RALPH K. WINTER,
                     GUIDO CALABRESI,
                     DENNY CHIN,
                               Circuit Judges.
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JANESSA JORDAN,

                              Plaintiff-Appellant,

                    v.                                                                19-2943-cv

NEW YORK STATE DEPARTMENT OF
LABOR,

                              Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:                                           Janessa Jordan, pro se, New York, New
                                                                   York.
              Appeal from the United States District Court for the Southern District of

New York (McMahon, J.).

              UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

              Plaintiff-appellant Janessa Jordan, pro se, sued the New York State

Department of Labor ("NYSDOL") alleging that an NYSDOL employee unlawfully

adjusted her unemployment benefits claim which apparently resulted in her having to

repay the agency $9,315. Her complaint did not specify a cause of action or statute

under which she was suing, and this information was unclear from her complaint. The

district court sua sponte dismissed the complaint as frivolous because NYSDOL was

immune from suit under the Eleventh Amendment, and it denied leave to amend the

complaint as futile. We assume the parties' familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

   I.     Forfeiture

              We liberally construe pro se pleadings and briefs to raise the strongest

arguments that they suggest. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d

Cir. 2006). Pro se appellants, however, must still comply with Fed. R. App. P. 28(a),

which "requires appellants in their briefs to provide the court with a clear statement of

the issues on appeal." Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998). Accordingly,

we "normally will not[ ] decide issues that a party fails to raise in his or her appellate
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brief." Id.; see also Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) ("Issues not

sufficiently argued in the briefs are considered waived and normally will not be

addressed on appeal."). Jordan forfeited a challenge to the district court's rulings that

NYSDOL was immune from suit and that amending her complaint would be futile by

failing to address these determinations in her brief.

   II.    Sua Sponte Dismissal

              Were we to reach the merits of the district court's decision, we would

conclude it did not err. District courts have the inherent power to sua sponte dismiss a

complaint as frivolous, even where, as here, the plaintiff has paid the filing fee.

Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000). Although

we have not determined whether a district court's sua sponte dismissal of a complaint as

frivolous is reviewed de novo or for abuse of discretion, the district court's determination

here "easily passes muster under the more rigorous de novo review." Id. at 364 n.2.

              A complaint is frivolous when "(1) the factual contentions are clearly

baseless . . . ; or (2) the claim is based on an indisputably meritless legal theory."

Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir 1998) (internal quotation

marks omitted). One example of a claim "based on an indisputably meritless legal

theory" is a claim against a "defendant[ that is] immune from suit." Neitzke v. Williams,

490 U.S. 319, 327 (1989).




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               The district court correctly held that NYSDOL is immune from suit under

the Eleventh Amendment, which precludes suits against states and state agencies unless

the state expressly waives its immunity or Congress abrogates that immunity. CSX

Transp., Inc. v. N.Y. State Office of Real Prop. Servs., 306 F.3d 87, 94-95 (2d Cir. 2002); see

also Leitner v. Westchester Cmty. Coll., 779 F.3d 130, 134 (2d Cir. 2015) ("The Eleventh

Amendment generally bars suits in federal court by private individuals against non-

consenting states."); Burnette v. Carothers, 192 F.3d 52, 57 (2d Cir. 1999) (noting that

Eleventh Amendment immunity "extends to state agencies and to state officers who act

on behalf of the state."). Congress has not abrogated New York's immunity against

suit in this circumstance (particularly where Jordan has not sued under any

ascertainable statute), nor has New York waived its immunity from suit. Accordingly,

the district court did not err in sua sponte dismissing Jordan's complaint as frivolous as

the NYSDOL is immune from suit. See CSX Transp., Inc., 306 F.3d at 94-95. The

district court also did not err in denying Jordan leave to amend her complaint. Pro se

plaintiffs are generally afforded an opportunity to amend, unless amendment would be

futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011). Here, amendment

would have been futile because the NYSDOL is immune from suit.

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             We have considered Jordan's remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.



                                       FOR THE COURT:
                                       Catherine O=Hagan Wolfe, Clerk of Court




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