11-4672-cv
Chiaro v. County of Nassau

                            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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 20th day
of November, two thousand twelve.

Present:
         JOHN M. WALKER, JR.
         ROBERT A. KATZMANN,
         DEBRA A. LIVINGSTON,
                     Circuit Judges.
________________________________________________

DOUGLAS CHIARO,

            Plaintiff-Appellant,

                    v.                                           No. 11-4672-cv

COUNTY OF NASSAU and DAVID CHIARO,

            Defendants-Appellees.*

________________________________________________

For Plaintiff-Appellant:           ANTHONY C. OFODILE, Ofodile & Associates, P.C., Brooklyn,
                                   N.Y.

For Defendants-Appellees:          ROBERT F. VAN DER WAAG, Deputy County Attorney, for John
                                   Ciampoli, County Attorney, County of Nassau, Mineola, N.Y.


       *
           We direct the Clerk of the Court to amend the official caption as noted.
       Appeal from the United States District Court for the Eastern District of New York
(Feuerstein, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Plaintiff-Appellant Douglas Chiaro (“plaintiff”) appeals from an August 23, 2010

Opinion issued by the United States District Court for the Eastern District of New York

(Feuerstein, J.) adopting in its entirety a July 29, 2011 Report and Recommendation issued by

Magistrate Judge A. Kathleen Tomlinson and granting defendants’ motion for summary

judgment. On appeal, plaintiff argues that the district court (1) erred in finding that defendant

David Chiaro was not acting under color of state law, and (2) abused its discretion in denying

plaintiff’s motion to amend his first amended complaint. We assume the parties’ familiarity with

the facts and procedural history of this case, as well as the issues on appeal.

       We review an award of summary judgment de novo, see El Sayed v. Hilton Hotels Corp.,

627 F.3d 931, 933 (2d Cir. 2010) (per curiam), and we will affirm only where “the movant

shows that 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). Having reviewed the record de novo, we

affirm for substantially the reasons stated in the district court’s Opinion and the Report and

Recommendation it adopts. See Chiaro v. County of Nassau, CV 09-3702 (SJF) (AKT), 2011

U.S. Dist. LEXIS 94211 (E.D.N.Y. Aug. 23, 2011), adopting Chiaro v. County of Nassau N.Y.,

CV 09-3702 (SJF) (AKT), 2011 U.S. Dist. LEXIS 94229 (E.D.N.Y. July 29, 2011) (Report &

Recommendation). Briefly stated, summary judgment was appropriate because plaintiff failed to

adduce evidence sufficient to create a genuine issue of material fact as to whether defendant

David Chiaro acted under color of state law. See Pitchell v. Callan, 13 F.3d 545, 547-48 (2d Cir.


                                                  2
1994) (explaining that, in order to maintain an action pursuant to 42 U.S.C. § 1983, “the conduct

complained of must have been committed by a person acting under color of state law”).

       We review a district court’s denial of a motion for leave to amend for abuse of discretion.

Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003). Leave to amend is routinely

denied “where the motion is made after an inordinate delay, no satisfactory explanation is

offered for the delay, and the amendment would prejudice other parties, or where the belated

motion would unduly delay the course of proceedings by, for example, introducing new issues

for discovery.” Grace v. Rosenstock, 228 F.3d 40, 53-54 (2d Cir. 2000) (internal quotation

marks and citations omitted). In this case, plaintiff offered no satisfactory explanation for his

inordinate delay in moving to file a second amended complaint after discovery was substantially

complete. Accordingly, the district court did not abuse its discretion in denying plaintiff’s

motion to amend his first amended complaint.

        We have considered plaintiff’s remaining arguments and find them to be without merit.

For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




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