     10-2144-cv
     Kraft 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 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,
 3   on the 11th day of October, two thousand eleven.
 4
 5   PRESENT:
 6               JOHN M. WALKER, Jr.,
 7               CHESTER J. STRAUB,
 8               DEBRA ANN LIVINGSTON,
 9                     Circuit Judges.
10   _____________________________________
11
12   TIMOTHY KRAFT,
13
14                               Plaintiff-Appellant,
15
16                     v.                                                No. 10-2144-cv
17
18   CITY OF NEW YORK, P.O. BRETT BARA, P.O.
19   JOSE BUENO, THE NEW YORK CITY HEALTH
20   AND HOSPITALS CORPORATION, DR. ELI
21   GREENBERG, DR. FADI HADDAD, DR.
22   ALYSON MALOY, P.O.S JOHN AND JANE DOE
23   #1-10, individually and in her official capacities
24   (the names John and Jane Doe being fictitious, as
25   the true names are presently unknown), HHC
26   PERSONNEL JOHN AND JANE DOE # 11-20,
27   E.M.S. SUPERVISOR JOHN DOE #21,
28
29                               Defendants-Cross-
30                               Defendants-Appellees,
31
 1   COMMON GROUND COMMUNITY H.D.F.C.,
 2   INC., CENTER FOR URBAN COMMUNITY
 3   SERVICES, ROSANNE HAGGERTY, NANCY
 4   PORCARO, ORETHA FRANKLIN, MICHAEL
 5   GIORDANO, STACY NERI, DAWN
 6   BRADFORD,
 7
 8                          Defendants-Cross-
 9                          Claimants-Cross-
10                          Defendants-Appellees,
11
12   AMY COHEN,
13
14                     Defendant-Cross-Defendant,*
15   _____________________________________
16
17
18                                 TIMOTHY KRAFT, pro se, New York, New York, for Plaintiff-
19                                 Appellant Timothy Kraft.
20
21                                 DEBORAH A. BRENNER for Michael A. Cardozo, New York
22                                 City Corporation Counsel, New York, New York, for Defendants-
23                                 Appellees City of New York, P.O. Brett Bara, P.O. Jose Bueno,
24                                 The New York City Health and Hospitals Corporation, Dr. Eli
25                                 Greenberg, Dr. Fadi Haddad, and Dr. Alyson Maloy.
26
27                                 Matthew W. Naparty; Richard J. Montes; Mauro Lilling Naparty
28                                 LLP, Great Neck, New York, for Defendants-Appellees Common
29                                 Ground Community H.D.F.C., Inc., Rosanne Haggerty, Nancy
30                                 Porcaro, Oretha Franklin, and Michael Giordano.
31
32                                 Thomas A. Catalano, Lester Schwab Katz & Dwyer, LLP, New
33                                 York, New York, for Defendants-Appellees Center for Urban
34                                 Community Services, Inc., Stacy Neri, and Dawn Bradford.

35         Appeal from the United States District Court for the Southern District of New York

36   (Denny Chin, Judge).

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

38   DECREED that the judgment and order of the district court are AFFIRMED.

           *
               The Clerk of the Court is directed to amend the caption to read as shown above.

                                                     2
 1          Plaintiff-Appellant Timothy Kraft, proceeding pro se, appeals the district court’s judgment,

 2   entered March 19, 2010, granting summary judgment in favor of the defendants with respect to his

 3   42 U.S.C. § 1983 and state law claims arising from his involuntary hospitalization, and the district

 4   court’s post-judgment order, entered April 21, 2010, denying his motion for reconsideration. We

 5   assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the

 6   issues on appeal.

 7          We review a district court’s grant of summary judgment de novo, and “will uphold the

 8   judgment only if the evidence, viewed in the light most favorable to the party against whom it is

 9   entered, demonstrates that there are no genuine issues of material fact and that the judgment was

10   warranted as a matter of law.” Molinari v. Bloomberg, 564 F.3d 587, 595 (2d Cir. 2009) (quoting

11   Barfield v. N.Y. City Health & Hosp. Corp., 537 F.3d 132, 140 (2d Cir. 2008)). We review a district

12   court’s order denying reconsideration for abuse of discretion. Devlin v. Transp. Commc’ns Int’l

13   Union, 175 F.3d 121, 131-32 (2d Cir. 1999). “A district court would necessarily abuse its discretion

14   if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the

15   evidence.” Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998) (quoting

16   Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990))

17   (reviewing denial of Fed. R. Civ. P. 60(b) motion).

18          Here, an independent review of the record and relevant case law reveals that the district court

19   properly granted summary judgment in favor of the defendants on Kraft’s claims. We affirm for

20   substantially the same reasons stated by the district court in its thorough and well-reasoned opinion.

21   See Kraft v. City of New York, 696 F. Supp. 2d 403 (S.D.N.Y. 2010). Kraft’s arguments on appeal

22   — many of which merely reiterate arguments he made in opposition to summary judgment and for



                                                       3
1    reconsideration below — fail largely for the reasons that the district court rejected them below.1

 2          Finally, the district court did not abuse its discretion in denying Kraft’s reconsideration

 3   motion, as Kraft failed to demonstrate that the district court’s decision granting summary judgment

 4   was based upon an erroneous view of the law or a clearly erroneous assessment of the evidence.

 5          We have considered all of Kraft’s arguments and find them to be without merit.

 6   Accordingly, we AFFIRM the judgment and order of the district court.
 7
 8                                                  FOR THE COURT:
 9                                                  Catherine O’Hagan Wolfe, Clerk
10
11




            1
               While Kraft also argues on appeal that Appellee Haddad’s decision to admit him to the
     psychiatric ward of Bellevue Hospital was contrary to the requirements of New York State Mental
     Hygiene Law § 9.39, he failed to make this argument below when represented by counsel. “The law
     in this Circuit is clear that where a party has shifted his position on appeal and advances arguments
     available but not pressed below, . . . waiver will bar raising the issue on appeal.” Wal-Mart Stores,
     Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 124 n.29 (2d Cir. 2005) (quoting United States v. Braunig, 553
     F.2d 777, 780 (2d Cir. 1977).

                                                       4
