19-1016-cv
Merced v. Ponte, et al

                                  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 29th day of May, two thousand twenty.

PRESENT:             ROBERT D. SACK,
                     RICHARD C. WESLEY,
                     DENNY CHIN,
                                         Circuit Judges.
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NAKKIA MERCED,
                                        Plaintiff-Appellant,

                              -v-                                                  19-1016-cv

JOSEPH PONTE, Individually and as
Commissioner, CYNTHIA BRANN, Acting
Commissioner, NEW YORK CITY DEPARTMENT
OF CORRECTION, NEW YORK CITY CIVIL
SERVICE COMMISSION, CHARLES D. MCFAUL,
Individually and as Commissioner, NANCY G.
CHAFFETZ, Individually and as Commissioner
Chair, RUDY WASHINGTON, Individually and
as Commissioner, NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS,
JOHN B. SPOONER, Individually and as
Administrative Law Judge, NEW YORK CITY
DEPARTMENT OF CITYWIDE ADMINISTRATIVE
SERVICES, CITY OF NEW YORK,
                         Defendants-Appellees.

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FOR PLAINTIFF-APPELLANT:                                     Nakkia Merced, pro se, New York, New York.

FOR DEFENDANTS-APPELLEES:                                    Diana Lawless, Assistant Corporation Counsel
                                                             (Fay Ng, Assistant Corporation Counsel, on the
                                                             brief), for James E. Johnson, Corporation
                                                             Counsel of the City of New York, New York,
                                                             New York.

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

District of New York (Matsumoto, J.).

                    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

                    Plaintiff-appellant Nakkia Merced, pro se, sued defendants-appellees City

of New York and various City agencies and officials ("defendants") under 42 U.S.C.

§ 1983 for alleged violations of the Fourteenth Amendment of the United States

Constitution, New York Civil Service Law ("CSL") §§ 75 and 76, and New York Civil

Rights Law ("CRL") § 50-a. Merced alleged that she was unlawfully terminated from

her position as a tenured Correction Officer without due process because:

Administrative Law Judge John B. Spooner was not properly designated to conduct her

pre-termination hearing under CSL § 75; Department of Corrections Commissioner

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Joseph Ponte unlawfully relied on Spooner's Report & Recommendation in terminating

her; the New York City Office of Administrative Trials and Hearings posted her

disciplinary record online, which violated CRL § 50-a; the New York City Civil Service

Commission failed to review the transcript of her pre-termination hearing on appeal,

which violated CSL § 76; and New York City conspired to deprive tenured public

employees of their employment without due process. The district court granted

defendants' motion to dismiss Merced's amended complaint holding, inter alia, that her

claims were barred by res judicata because she litigated all but one of the claims that she

raised in district court (CRL § 50-a) in her appeal to the New York City Civil Service

Commission and in her N.Y. C.P.L.R. § 7801 proceeding ("Article 78 proceeding") in

state court, and she could have raised that claim in her Article 78 petition. We assume

the parties= familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

              We review de novo the dismissal of a complaint for failure to state a claim,

Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002), "accepting as true all

factual claims in the complaint and drawing all reasonable inferences in the plaintiff's

favor," Fink v. Time Warner Cable, 714 F.3d 739, 740-41 (2d Cir. 2013). A 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), and "allow[] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged," Ashcroft v. Iqbal, 556


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U.S. 662, 678 (2009). We also review de novo the district court's application of res

judicata. Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 919 (2d Cir. 2010). Pro se

litigants are entitled to "special solicitude," and their complaints are interpreted "to raise

the strongest claims [they] suggest." Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)

(internal quotation marks and alterations omitted).

              Upon de novo review, we conclude that the district court did not err in

granting defendants' motion to dismiss on the basis of res judicata because both the

Civil Service Commission appeal and Article 78 proceeding were adjudications on the

merits, and the claims asserted below were, or could have been, raised in the prior state

court actions. See Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 284-85 (2d Cir. 2000);

Taylor v. N.Y.C. Transit Auth., 433 F.2d 665, 668 (2d Cir. 1970) (affirming district court

decision holding that res judicata prevented consideration of claims that could have

been raised in Article 78 proceeding). We therefore affirm the judgment on res judicata

grounds for substantially the reasons set forth by the district court in its thorough and

well-reasoned March 13, 2019 Memorandum Opinion and Order.

                                          *   *   *




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             We have considered Merced's remaining arguments and conclude they

are without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.




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




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