10-4167-cv
Levy v. Cohen
                            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 Daniel
Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 2nd day of
September, two thousand eleven.

PRESENT:
             JON O. NEWMAN,
             PETER W. HALL,
                      Circuit Judges,
             LORETTA A. PRESKA,*
                     District Judge.
_______________________________________________
Edward Levy, D.D.S.,

                                Plaintiff-Appellant,
                    v.                                                   No. 10-4167-cv

Saul B. Cohen, as Chairman of the Board of Regents of the
State of New York, Eric T. Schneiderman, as Attorney
General of the State of New York,

                        Defendants-Appellees.
______________________________________________

For Appellant:                                           EDWARD LEVY, pro se, Forest
                                                         Hills, NY.

For Appellees:                                           SUDARSANA SRINIVASAN,
                                                         Assistant Solicitor General, for Eric
                                                         T. Schneiderman, Attorney General
                                                         of the State of New York, New
                                                         York, NY.


                *
             Chief Judge Loretta A. Preska, of the United States District Court for the Southern
    District of New York, sitting by designation.
       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Garaufis, J.).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Edward Levy appeals pro se from the district court’s judgment

granting the Defendants-Appellees’ motion to dismiss his 42 U.S.C. § 1983 complaint pursuant

to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). We review the dismissal of a

complaint under either subsection of Rule 12 de novo, construing the complaint liberally,

accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in

the plaintiff's favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); See

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). We assume the parties’ familiarity

with the underlying facts, procedural history of the case, and issues on appeal.

       Levy alleges that the Defendants-Appellees violated his civil rights under § 1983 through

various actions related to the revocation of his license to practice dentistry in 2007. In his

appellate brief, he argues, inter alia, that the pre-deprivation proceeding conducted by the New

York State Board of Regents, which is entrusted with the statutory authority to revoke a dentist’s

license under certain circumstances, see New York State Education Law § 6510, was inadequate

for a number of alleged reasons, including that it arose out of a conspiracy to cover-up the

conversion of Medicaid payments he was owed for his work as a dentist and subsequent payment

of those funds into then-Attorney General Eliot Spitzer’s gubernatorial campaign fund. Levy

also argues that he was not required to exhaust his remedies available under state law before he

was able to bring a civil rights claim for violation of his due process rights. In this regard, Levy

misses the point. The pre-deprivation proceedings available to him—which included notice and

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an administrative hearing at which Levy was represented by an attorney, presented evidence, and

called witnesses—combined with the availability of an adequate post-deprivation remedy

through New York’s Article 78 proceeding, constituted sufficient process to satisfy the Due

Process Clause of the Fourteenth Amendment. See Harris v. Mills, 572 F.3d 66, 76 (2d Cir.

2009) (denial by state agency of physician’s petition to reinstate his revoked medical license did

not deprive physician of due process, where physician was given adequate notice and

opportunity to be heard before his petition for reinstatement was denied, and an adequate post-

deprivation remedy was available through Article 78 proceedings); Rivera-Powell v. N.Y.C. Bd.

of Elections, 470 F.3d 458, 466 (2d Cir. 2006) (holding that pre-deprivation process was

constitutionally adequate where the plaintiff received notice and was represented at a pre-

deprivation hearing by an attorney).

       In addition, the district court properly dismissed Levy’s damages claims against the New

York State Attorney General’s Office, because, contrary to Levy’s contention on appeal, the

Eleventh Amendment provides a state and its agencies with immunity from claims for damages

in federal court where, as here, the State has not given consent to be sued. See Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984).

       We have reviewed Levy’s remaining arguments on appeal and find them to be without

merit. Accordingly, the judgment of the district court is AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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