12-3613-cv
Cancel v. N.Y.C. Human Res. Admin.

                                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 TO 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 23rd day of May, two thousand thirteen.

PRESENT: REENA RAGGI,
         CHRISTOPHER F. DRONEY,
                   Circuit Judges,
         LEWIS A. KAPLAN,
                   District Judge.*

----------------------------------------------------------
FRANKIE CANCEL,
                         Plaintiff-Appellant,

                    v.                                         No. 12-3613-cv

NEW YORK CITY HUMAN RESOURCES
ADMINISTRATION/DEPARTMENT OF
SOCIAL SERVICES, et al.,
                         Defendants-Appellees.
----------------------------------------------------------




          *
         The Honorable Lewis A. Kaplan, of the United States District Court for the Southern
District of New York, sitting by designation.
APPEARING FOR APPELLANT:                            FRANKIE CANCEL, pro se, New York,
                                                    New York.

APPEARING FOR APPELLEES:                            FAY SUE NG (Pamela Seider Dolgow,
                                                    Benjamin John Traverse, on the brief), for
                                                    Michael A. Cardozo, 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 (P. Kevin Castel, Judge; Henry B. Pitman, Magistrate Judge)

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

DECREED that the judgment of the district court entered on August 2, 2012, is AFFIRMED

IN PART, REVERSED IN PART, and VACATED IN PART, and the case is REMANDED.

       Frankie Cancel appeals pro se from the dismissal of his amended complaint for failure

to state equal protection and due process claims pursuant to 42 U.S.C. §§ 1981 and 1983 in

connection with state employment. See Fed. R. Civ. P. 12(b)(6). We assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm in part, reverse in part, vacate in part, and remand

for further proceedings consistent with this order.

       We review a Rule 12(b)(6) dismissal de novo, “accepting all factual claims in the

complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Famous

Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). 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). A claim will have “facial plausibility when the plaintiff

                                               2
pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

While pro se complaints must contain sufficient factual allegations to meet the plausibility

standard, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), we look for such allegations by

reading pro se complaints with “special solicitude” and interpreting them to raise the

“strongest [claims] that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,

474–75 (2d Cir. 2006) (emphasis in original; internal quotation marks omitted).

       Applying these principles to this case, we conclude that the district court correctly

dismissed Cancel’s equal protection and § 1981 claims for race discrimination but

erroneously dismissed his procedural due process claim pursuant to § 1983. This conclusion

warrants both remand of the procedural due process claim and reconsideration of the district

court’s decision not to exercise supplemental jurisdiction over Cancel’s state claims.

1.     Equal Protection and Section 1981 Claims

       We affirm the district court’s dismissal of Cancel’s equal protection and § 1981 claims

because Cancel failed plausibly to allege discriminatory treatment on the basis of race. See

Reynolds v. Barrett, 685 F.3d 193, 201 (2d Cir. 2012) (“[A] plaintiff pursuing a claimed

violation of § 1981 or a denial of equal protection under § 1983 must show that the

discrimination was intentional.” (internal quotation marks omitted)). Moreover, the district

court did not err in dismissing those claims prior to identification of the unnamed defendants

because their identities were not relevant to the grounds for dismissal. See Valentin v.

Dinkins, 121 F.3d 72, 75 (2d Cir. 1997).

                                              3
          While district courts should generally not dismiss pro se claims without affording

leave to amend, it need not do so when amendment would be futile. See Cuoco v. Moritsugu,

222 F.3d 99, 112 (2d Cir. 2000) (finding that leave to replead would be futile where

complaint, even when read liberally, did not suggest that “plaintiff has a claim that she has

inadequately or inartfully pleaded and that she should therefore be given a chance to

reframe”). Here, the district court had already permitted Cancel to amend his complaint

once, and nothing in his amended complaint suggested that he would be able to state a valid

§ 1981 or equal protection claim if he were granted leave to amend a second time. Therefore,

granting Cancel leave to amend his amended complaint as to these claims would have been

futile.

2.        Due Process Claim

          Cancel argues that the district court erred in holding as a matter of law that his

complaint failed to allege a constitutionally protected property interest in employment

necessary to state a procedural due process claim.1 We agree.

          In order to establish a property interest giving rise to a procedural due process claim,

a plaintiff must demonstrate “a legitimate claim of entitlement” to the property at issue.

Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Generally, “there is no constitutionally



          1
        Cancel does not challenge the district court’s dismissal of his substantive due process
claim, and thus he has abandoned that claim on appeal. See Norton v. Sam’s Club, 145 F.3d
114, 117 (2d Cir. 1998).

                                                 4
protected property interest in prospective government employment,” Abramson v. Pataki,

278 F.3d 93, 100 (2d Cir. 2002), but a written or verbal communication guaranteeing

government employment may, in some circumstances, give rise to a such a property interest,

see Looney v. Black, 702 F.3d 701, 708 (2d Cir. 2012) (collecting cases); Ezekwo v. N.Y.C.

Health & Hosps. Corp., 940 F.2d 775, 783 (2d Cir. 1991) (holding that defendant’s “course

of conduct, coupled with [plaintiff’s] reasonable reliance thereon, created a contractual right

that rose to the level of a significant property interest”).

       Here, Cancel’s amended complaint alleges that, at the end of his January 15, 2009

interview, he was offered a Paralegal Aide position in the Office of Legal Affairs, signed a

form accepting it, and “was instructed to return for processing prior to his start date of

February 9, 2009.” Amend. Compl. ¶¶ 34–35, J.A. 16. Only thereafter was Cancel asked to

submit certified dispositions of his convictions. Drawing all reasonable inferences in

Cancel’s favor, we conclude that these pleadings allege a legitimate claim of entitlement to

the Paralegal Aide position, subject only to the completion of ministerial tasks prior to his

start date. Insofar as defendants submit that circumstances can be adduced showing

otherwise, they may certainly pursue that argument after discovery. But on a review only

of the amended complaint, we cannot conclude that Cancel fails as a matter of law to state

a procedural due process claim.




                                                5
       Accordingly, we reverse that part of the district court’s judgment.2 We need not

decide on this appeal what process Cancel may have been due in connection with defendant’s

failure to employ him as a Paralegal Aide.

3.     State Law Claims

       In light of our reversal of the dismissal of Cancel’s procedural due process claim, we

vacate the district court’s dismissal of Cancel’s state law claims and remand for

reconsideration of the exercise of supplemental jurisdiction over any state claims pursuant

to 28 U.S.C. § 1367.

       For the foregoing reasons, the judgment of the district court is AFFIRMED IN PART,

REVERSED IN PART, VACATED IN PART, and the case is REMANDED.

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




       2
         We nevertheless reject Cancel’s argument that N.Y. Correct. Law §§ 752 and 753,
which prohibits denying employment on the basis of an applicant’s criminal record unless
certain conditions are met, created a legally protected property interest in the Paralegal Aide
position. See McMenemy v. City of Rochester, 241 F.3d 279, 288 (2d Cir. 2001) (“[T]he
fact that state law creates a right to non-discriminatory consideration for a discretionary
[appointment] does not create a property interest, any more than does the requirement of a
competitive civil service exam.”).

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