11-1303-cv
Okoh v. Sullivan


                        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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 19th day of December, two thousand eleven.

PRESENT:
            PETER W. HALL,
            GERARD E. LYNCH,
            DENNY CHIN,
                        Circuit Judges.
_____________________________________

Efua Ehi Okoh,

                        Plaintiff-Appellant,

                   v.                                               No. 11-1303-cv

Dennis Sullivan, Jozef Dodziuk, Ph.D. Program in
Mathematics of CUNY Graduate School and
University Center, The Graduate School and
University Center of The City University of New
York,

                  Defendants-Appellees.
_____________________________________

FOR PLAINTIFF-APPELLANT:                       EFUA EHI OKOH, pro se, Copely, OH.

FOR DEFENDANTS-APPELLEES:                            MATTHEW W. GRIECO, Assistant Solicitor
                                                     General (Barbara D. Underwood, Solicitor
                                                     General, Benjamin N. Gutman, Deputy
                                                      Solicitor General, Cecelia C. Chang,
                                                      Assistant Solicitor General), for Eric T.
                                                      Schneiderman, Attorney General of the
                                                      State of New York, New York, NY.

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

New York (Scheindlin, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Efua Eli Okoh, pro se, appeals the district court’s judgment granting the

Appellees’ motion to dismiss his complaint. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(1)

or 12(b)(6). See Jaghory v. New York State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997).

Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper “when

the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). Under Rule 12(b)(6), we construe the

complaint liberally, accepting all factual allegations in the complaint as true, and drawing all

reasonable inferences in the plaintiff’s favor. See Triestman v. Fed. Bureau of Prisons, 470 F.3d

471, 474 (2d Cir. 2006). To survive a Rule 12(b)(6) motion to dismiss, 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). Although all allegations contained in the complaint are assumed to be

true, this tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009). A claim will have “facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Id. Additionally, while pro se complaints must contain sufficient factual allegations to

meet the plausibility standard, we afford pro se litigants “special solicitude” and will interpret

their submissions to raise the “strongest arguments that they suggest.” Triestman, 470 F.3d at

474-75.

       Having conducted a de novo review of the record in light of these principles, we affirm

the lower court’s judgment for substantially the same reasons as those stated by the court in its

February 24, 2011 opinion and order. Among other things, the district court correctly concluded

that with respect to Okoh’s equal protection claims, the second amended complaint failed to set

forth sufficient, non-conclusory factual allegations from which a reasonable inference could be

drawn that Okoh suffered “adverse treatment . . . compared with other similarly situated

individuals,” or that “such selective treatment was based on impermissible considerations such

as race.” Miner v. Clinton Cnty., 541 F.3d 464, 474 (2d Cir. 2008) (internal quotation marks

omitted); see also Iqbal, 129 S. Ct. at 1949. We have considered all of Okoh’s other arguments

and find them to be without merit. Thus, we AFFIRM the district court’s judgment.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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