13-1579-cv
Johnston v. Town of Orangetown

                                      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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 14th day of April, two thousand fourteen.

PRESENT:

           JOSÉ A. CABRANES,
           GERARD E. LYNCH,
           RAYMOND J. LOHIER, JR.,
                                Circuit Judges.
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MATTHEW JOHNSTON,

                     Plaintiff-Appellant,

                               -v.-                                                            No. 13-1579-cv

TOWN OF ORANGETOWN, RONALD DELO, THOM KLEINER,
JOSEPH RUTKOWSKI, ARTHUR HIGGINS, THOMAS
FITZMAURICE, FRANK PENNINO, EDWARD BOERA,

                      Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:                                                  KEVIN T. MULHEARN, Orangeburg, NY.

FOR DEFENDANTS-APPELLEES:                                                 RICHARD S. PAKOLA, for John S. Edwards,
                                                                          Orangetown Town Attorney, Orangeburg,
                                                                          NY.

       Appeal from a judgment, entered March 25, 2013, of the United States District Court for the
Southern District of New York (George A. Yanthis, Magistrate Judge).


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     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.

        Plaintiff Matthew Johnston appeals from the judgment of the District Court granting
summary judgment in favor of defendants. He brought claims under 42 U.S.C. § 1983 against the
Town of Orangetown (“Orangetown”) and seven of its employees, alleging that defendants
deprived him of his constitutionally protected property interests by demoting him without due
process of law, in violation of the Fourteenth Amendment, and that they entered into a conspiracy
to do so.1 Johnston also asserted two claims under New York state law.

        We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review, to which we refer only as necessary to explain our decision to
affirm.

                                                   DISCUSSION

         We review de novo an order granting summary judgment and “resolv[e] all ambiguities and
draw[] all permissible factual inferences in favor of the party against whom summary judgment is
sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal quotation marks omitted). We
affirm when “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of fact is “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks omitted). However,
“conclusory statements or mere allegations [are] not sufficient to defeat a summary judgment
motion.” Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002).

                                                A. Due Process Claim

        In April 2010, Orangetown demoted Johnston from Automotive Mechanic II to Automotive
Mechanic I in response to disciplinary charges relating to his supervision of the Orangetown Sewer
Garage. Johnston contends that his demotion violated his due process rights. Although defendants
concede that Johnston had a cognizable property interest in his position, they argue that Johnston
received sufficient process.

         In determining what process was due Johnston, the parties disagree as to whether the
deprivation occurred as a result of established governmental procedures or was based on “random
and unauthorized acts” by government officers. The Supreme Court has noted the importance of
this distinction in determining what process must be accorded. See Hudson v. Palmer, 468 U.S. 517,



         1 Johnston does not appeal the dismissal of his claim that defendants retaliated against him for the exercise of
his constitutionally protected speech in violation of the First Amendment.


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532 (1984); Parratt v. Taylor, 451 U.S. 527, 541 (1981); see also Hellenic Am. Neighborhood Action Comm. v.
City of New York, 101 F.3d 877, 880 (2d Cir. 1996).

        However, we need not resolve this dispute here. Instead, as in Locurto v. Safir, we assume this
point in Johnston’s favor for purposes of this appeal. 264 F.3d 154, 172–73 (2d Cir. 2001). Even
under those circumstances, we conclude that Johnston received adequate process: He was afforded
a pre-termination hearing at which he was represented by counsel and he was given the chance to
put forth arguments and evidence as to why he should not be terminated. Thereafter, he had the
opportunity to avail himself of the review process pursuant to New York C.P.L.R. Article 78. Even
considering Johnston’s claim that witnesses at the hearing lied, this is sufficient to satisfy the
requirements of the Due Process Clause. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also
Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458, 466 (2d Cir. 2006).

         We have held that even where deprivations of property occur as a result of established
governmental procedures, “[a]n Article 78 proceeding . . . constitutes a wholly adequate post-
deprivation hearing for due process purposes.” Locurto, 264 F.3d at 175. Although Johnston
apparently declined to pursue his challenge in an Article 78 proceeding, the existence of that
proceeding confirms that state law afforded him adequate process to defeat his constitutional claim.
See Rivera–Powell, 470 F.3d at 467–68; see also id. at 468 n.12 (“[A] procedural due process violation
cannot have occurred when the governmental actor provides apparently adequate procedural
remedies and the plaintiff has not availed himself of those remedies.” (internal quotation marks
omitted)).

        We therefore conclude that the District Court was correct in granting summary judgment in
favor of defendants on Johnston’s due process claim.

                                    B. Section 1983 Conspiracy Claim

          Johnston’s accompanying § 1983 conspiracy claim was properly dismissed, because he did
not show any violation of his constitutional rights. A § 1983 conspiracy claim “will stand only
insofar as the plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right.”
Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995); see also id. (holding that “a plaintiff
alleging a § 1983 conspiracy claim must prove an actual violation of constitutional rights”).

                                           C. State Law Claims

        Because the District Court dismissed all of Johnston’s federal claims, it declined to exercise
supplemental jurisdiction over his state law claims and dismissed them without prejudice. We
conclude that the District Court did not abuse its discretion in so doing, and so we affirm its order
dismissing those state claims without prejudice. See Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir.
1994).



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                                        CONCLUSION

       We have reviewed the record and considered all of Johnston’s arguments on appeal, and find
them to be without merit.

         For the reasons set out above, we AFFIRM the March 25, 2013, judgment of the District
Court.



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




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