08-0455-cv
Mallard v. Potenza

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION:
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12 th day of May, two thousand ten.

PRESENT:         REENA RAGGI,
                 PETER W. HALL,
                 DENNY CHIN,
                         Circuit Judges.
----------------------------------------------------
JAMES MALLARD,
                 Plaintiff-Appellant,

                     v.                                            No. 08-0455-cv

CHRISTOPHER POTENZA,
         Defendant,

SGT. McCABE, CITY OF NEW YORK,
                 Defendant-Appellee.
----------------------------------------------------
APPEARING FOR APPELLANT:                          JAMES MALLARD, pro se, Bronx, New York.

APPEARING FOR APPELLEES:                          JANET L. ZALEON, Senior Counsel, City of
                                                  New York Law Department, New York, New
                                                  York.

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

of New York (Carol Bagley Amon, Judge).
       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff James Mallard appeals pro se from (1) an award of summary judgment in

favor of defendants on his claim that certain firearms were unlawfully seized from his home

in violation of the Fourth Amendment and not returned to him in violation of due process;

(2) the dismissal after trial of a related Fourth Amendment challenge to the seizure of certain

knives on timeliness grounds; and (3) a jury award of nominal damages on his due process

claim against the City of New York for failing to provide him with a means to obtain return

of the knives. We assume familiarity with the facts and procedural history, which we

reference only as necessary to explain our decision to affirm.

       We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and

draw[ing] all permissible factual inferences in favor of the party against whom summary

judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation

marks omitted). We similarly apply de novo review to the district court’s award of judgment

as a matter of law. See Black v. Finantra Capital, Inc., 418 F.3d 203, 208 (2d Cir. 2005).

       We readily affirm the challenged judgment with respect to Mallard’s Fourth

Amendment claims, as these were filed more than three years after the seizures of the

firearms and knives at issue. See Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 331

(2d Cir. 1997) (noting that “statute of limitations for a claim under § 1983 that accrued in

New York is three years”). The Supreme Court’s decision in Wallace v. Kato, 549 U.S. 384

(2007), makes clear that such claims will be deferred pursuant to Heck v. Humphrey, 512



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U.S. 477 (1994), “only where there exists . . . an outstanding criminal judgment.” 549 U.S.

at 393 (internal quotation marks omitted). No such judgment ever existed against Mallard.

Mallard’s contention that Wallace does not have retroactive effect is belied by Wallace itself,

which applied its holding to the parties in that case. See Reynoldsville Casket Co. v. Hyde,

514 U.S. 749, 752 (1995) (discussing retroactive effect of Supreme Court decisions).

Further, we agree with the district court that defendants preserved their statute of limitations

defense by raising it in their answers to the complaint and amended complaint, at the

summary judgment stage, and following the Supreme Court’s decision in Wallace. See

Santos v. Dist. Council of N.Y. City & Vicinity of United Bhd. of Carpenters & Joiners of

Am., 619 F.2d 963, 967 & n.5 (2d Cir. 1980).

       We further affirm the judgment with respect to Mallard’s due process claim based on

the retention of his firearms, because Mallard had no legitimate possessory interest in

firearms for which he held no license. See N.Y. Penal Law § 400.05; Monzietti v. N.Y. City

Police Dep’t, 132 Misc. 2d 255, 256, 503 N.Y.S.2d 697, 699 (N.Y. Sup. Ct. 1986). Contrary

to Mallard’s contention, no different result is compelled by District of Columbia v. Heller,

128 S. Ct. 2783 (2008), which did not hold reasonable licensing requirements

unconstitutional. See id. at 2819. Mallard’s argument based on New York Penal Law

§ 265.02, raised for the first time on appeal, is waived. See Singleton v. Wulff, 428 U.S.

106, 120-21 (1976). We note, moreover, that even if we were to accept Mallard’s contention

that his unlicensed possession of the firearms did not violate § 265.02, it would not remotely

follow that defendants were required to return the firearms to him. See N.Y. Penal Law



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§ 400.05 (requiring destruction of unlawfully possessed firearms); People v. Abdullah, 23

Misc. 3d 232, 234, 870 N.Y.S.2d 886, 887 (N.Y. Crim. Ct. 2008) (noting that “in New York,

possession of a firearm remains a criminal act . . . unless one holds a license to so possess”).

Finally, to the extent Mallard invokes Heller to support a Second Amendment challenge to

the seizure of the firearms, any such claim, like Mallard’s Fourth Amendment challenge,

would be untimely.

       In light of these rulings, Mallard’s contention that the jury verdict was against the

weight of the evidence implicates only the jury’s finding of liability against the City on his

due process claim and the award of nominal damages for the City’s failure to return his

knives. Liberally construed, Mallard’s brief contends that the jury should have attributed a

greater monetary value to the knives and awarded him compensatory and punitive damages.

Where such a challenge has not been preserved in a motion pursuant to Fed. R. Civ. P. 50,

we will consider it only if the district court has indicated that such a motion need not be filed,

or “to prevent a manifest injustice in cases where a jury’s verdict is wholly without legal

support.” Jacques v. DiMarzio, Inc., 386 F.3d 192, 199 (2d Cir. 2004) (alteration and

internal quotation marks omitted). Neither circumstance obtains here. Thus, Mallard’s

challenge to the jury verdict fails.

       We have considered Mallard’s remaining arguments on appeal, and we conclude that

they are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                              FOR THE COURT:
                              CATHERINE O’HAGAN WOLFE, Clerk of Court




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