     09-4658-cv
     Nogbou v. Mayrose
                               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.

 1        At a stated term of the United States Court of Appeals for the
 2   Second Circuit, held at the Daniel Patrick Moynihan United States
 3   Courthouse, 500 Pearl Street, in the City of New York, on the 30th
 4   day of November, two thousand ten.
 5
 6   PRESENT:            AMALYA L. KEARSE,
 7                       JOSEPH M. MCLAUGHLIN,
 8                       DEBRA ANN LIVINGSTON,
 9                                      Circuit Judges.
10
11
12   RODOLPHE NOGBOU,
13             Plaintiff-Appellant,
14
15           -v.-                                 No. 09-4658-cv
16
17   POLICE OFFICER MAYROSE, New York Police Department badge #6266,
18   POLICE OFFICER LORE, The New York Police Department badge #10037,
19   POLICE OFFICER RIGALOS, New York Police Department badge # 28450,
20   BELLEVUE HOSPITAL CENTER’S PSYCHIATRIC SERVICES,
21             Defendants-Appellees,
22
23
24                                 RODOLPHE NOGBOU, pro se, New York, NY.
25
26                                 DONA B. MORRIS, Assistant Corporation Counsel,
27                                 for Michael A. Cardozo, Corporation Counsel
28                                 for the City of New York, New York, NY, for
29                                 Defendants-Appellees.
30
31
32           Appeal from a judgment of the United States District Court for

33   the Southern District of New York (Sweet, J.).
 1        UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court is AFFIRMED.

 3        Appellant   Rodolphe    Nogbou,    pro   se,    appeals    the    district

 4   court’s judgment granting the defendants’ motion for judgment on

 5   the pleadings and dismissing his 42 U.S.C. § 1983 complaint.                  We

 6   assume the parties’ familiarity with the underlying facts, the

 7   procedural history of the case, and the issues on appeal.

 8   I. Motion for Judgment on the Pleadings

 9        We review a judgment on the pleadings pursuant to Fed. R. Civ.

10   P. 12(c) de novo.     See Hardy v. N.Y.C. Health & Hosps. Corp., 164

11   F.3d 789, 792 (2d Cir. 1999).     The standard applicable to a motion

12   to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

13   also applies to a Rule 12(c) motion for judgment on the pleadings.

14   Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994).                  Thus, “a

15   court must accept the allegations contained in the complaint as

16   true,   and   draw   all   reasonable   inferences      in     favor    of   the

17   non-movant,” and deny the motion “unless it appears beyond doubt

18   that the plaintiff can prove no set of facts in support of his

19   claim which would entitle him to relief.”           Id. (internal quotation

20   marks omitted) (quoting Ad-Hoc Comm. of Baruch Black and Hispanic

21   Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d

22   Cir. 1987)).

23        Nogbou correctly argues that the district court erroneously

                                         2
 1   relied on his Bellevue Hospital psychiatric records in analyzing

 2   his excessive force claim. Although these records were attached to

 3   his complaint, Nogbou alleged that portions of the records were

 4   fabricated, and the district court was required to accept that

 5   allegation   as   true   in    deciding   the    Rule   12(c)   motion.      See

 6   Sheppard, 18 F.3d at 150.

 7        Nonetheless, we find that the district court's decision to

 8   dismiss Nogbou’s excessive force claim was based primarily on its

 9   conclusion that the force used by the Defendant Police Officers was

10   de mimimis, with no allegations by the Plaintiff of any injuries or

11   additional   facts   to       establish   that    the   use     of   force   was

12   unreasonable, rather than on its citation to disputed portions of

13   Nogbou's psychiatric record.         Because Nogbou has not challenged

14   this conclusion in his brief, we affirm the district court's

15   dismissal of his excessive force claim.

16        Moreover, while Plaintiff specifically challenges the district

17   court's description of his initial hospitalization, the description

18   provided, in which the officers told him he could not sleep on the

19   streets and handcuffed him when he refused to leave, is consistent

20   with the allegations in his complaint.              Further, the district

21   court's dismissal of his involuntary hospitalization claim was not

22   based on this description. Rather, as the district court noted, due

23   process permits the involuntary hospitalization of an individual if


                                           3
 1   he is a danger to himself or others.             See Anthony v. City of New

 2   York, 339 F.3d 129, 137 (2d Cir. 2003).                   The district court

 3   concluded from the plaintiff's allegations that probable cause

 4   existed for the officers’ belief that he “posed a danger to himself

 5   when they encountered him sleeping outside on a frigid night,”

 6   Nogbou v. Mayrose, No. 07 Civ. 3763, slip op. at 12 (S.D.N.Y. Oct.

 7   15, 2009), a conclusion that the plaintiff does not challenge on

 8   appeal.      As a result, we affirm the dismissal of this claim as

 9   well.

10         Finally, we affirm the district court's dismissal of the

11   remainder of Nogbou's claims for substantially the same reasons

12   stated by the district court in its thorough and well reasoned

13   decision.

14   II. Leave to Amend

15         “Leave to amend should be freely granted, but the district

16   court has the discretion to deny leave if there is a good reason

17   for   it,    such   as   futility,    bad    faith,   undue   delay,     or   undue

18   prejudice to the opposing party.”             Jin v. Metropolitan Life Ins.

19   Co., 310 F.3d 84, 101 (2d Cir. 2002).                 We review the denial of

20   leave to amend a complaint for abuse of discretion.                Id.

21         Here, the district court properly determined that an amendment

22   would   be    futile     on   the   ground    that    negligence   and    medical

23   malpractice claims are not actionable under § 1983.                    See, e.g.,


                                             4
 1   Estelle v. Gamble, 429 U.S. 97, 105-06 (1976) (noting that mere

 2   negligence in diagnosis or treatment is insufficient to state a

 3   valid   Eighth   Amendment     claim    and    emphasizing   that    “[m]edical

 4   malpractice does not become a constitutional violation merely

 5   because the victim is a prisoner”).

 6         Arguably, the district court could have permitted Nogbou to

 7   amend his complaint to assert an involuntary hospitalization or

 8   forced medication claim against Health and Hospitals Corporation

 9   and the relevant Bellevue Hospital staff members.                 However, such

10   claims would also have been futile.                As mentioned above, the

11   plaintiff does not challenge the district court's conclusion that

12   his   allegation   that   he   was     sleeping    outside   in    February   in

13   “freezing temperature[s]” created probable cause to believe that he

14   was a danger to himself.        Thus, he has not established that the

15   district court abused its discretion in denying him leave to amend

16   his complaint.

17         We have considered Nogbou's other arguments on appeal and have

18   found them to be without merit.             Accordingly, the judgment of the

19   district court is hereby AFFIRMED.

20
21                                                 FOR THE COURT:
22                                                 Catherine O’Hagan Wolfe, Clerk
23
24
25




                                             5
