16-854
Pepin v. N.Y.C. Dep’t of Educ.


                                 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
ASUMMARY 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 14th day of December, two thousand sixteen.

PRESENT: GUIDO CALABRESI,
           REENA RAGGI,
           GERARD E. LYNCH,
                 Circuit Judges.
_____________________________________
MILCIADES PEPIN,
                    Plaintiff-Appellant,

                      v.                                            No. 16-854-cv

NEW YORK CITY DEPARTMENT OF
EDUCATION,
                  Defendant-Appellee.
_____________________________________


FOR APPELLANT:                                Milciades Pepin, pro se, Bronx, New York.

FOR APPELLEE:                                 Deborah A. Brenner, Antonella Karlin,
                                              Assistant Corporation Counsels, for Zachary
                                              W. Carter, Corporation Counsel of the City of
                                              New York, New York, New York.

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

of New York (Edgardo Ramos, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court entered on March 4, 2016, is

AFFIRMED.

       Plaintiff Milciades Pepin, proceeding pro se, appeals the dismissal of his due

process claim against the New York City Department of Education (“DOE”) pursuant to 42

U.S.C. § 1983 for depriving him of his teaching license and placing a “problem code” on

his employment file, preventing him from obtaining a Certificate of Eligibility, which was

then necessary to be considered for employment in a supervisory role at DOE schools.

The district court dismissed Pepin’s complaint as barred by the applicable three-year

statute of limitations. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal, which we reference only as

necessary to explain our decision to affirm.

       We review de novo a district court’s dismissal of a complaint pursuant to Fed. R.

Civ. P. 12(b)(6), accepting all factual allegations in the complaint as true and drawing all

reasonable inferences in the plaintiff’s favor. Barrows v. Burwell, 777 F.3d 106, 111 (2d

Cir. 2015). The complaint must plead “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a court must accept as true all

factual allegations in the complaint, that requirement is “inapplicable to legal conclusions.”

Ashcroft v. Iqbal, 556 U.S. at 678.



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      The statute of limitations for a § 1983 claim accruing in New York is three years.

See Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015). A § 1983 claim accrues

“when the plaintiff knows or has reason to know of the injury which is the basis of his

action.” Covington v. City of New York, 171 F.3d 117, 121 (2d Cir. 1999) (citations and

internal quotation marks omitted). Here, as the district court correctly concluded, Pepin

was aware of the basis for his claim in October 2010—more than three years prior to the

filing of his federal complaint—when his employment was discontinued for misconduct

and he was placed on the “ineligible/inquiry” list. Accordingly, Pepin’s § 1983 claim was

time-barred when he filed the complaint initiating this civil action on December 8, 2014.

      Pepin’s argument to the contrary is unavailing. He contends that he believed that

the problem code was removed from his employment file following litigation that

concluded partially in his favor in 2014, when a state court ordered the removal of any

problem code “supported by the annulled unsatisfactory rating, unsubstantiated

misconduct recited in a Special Commissioner of Investigations report, or misconduct not

documented in [Pepin’s] employment file.” J.A. 50. He argues that he was not aware of

the problem code remaining on his file until he reapplied for DOE employment in 2014.

Pepin was aware, however, that he had a problem code placed on his employment file in

October 2010 and that the state court’s decision expressly did not completely remove that

code from his file. While the remaining problem code did not affect Pepin until April

2014 when he reapplied for DOE employment, that fact does not change the date of



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accrual. See Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999) (explaining that

continuing effects of time-barred claim are not sufficient to establish exception to statute of

limitations).

       We have considered Pepin’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

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




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