08-3703-cv
Carvel v. Cuomo


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED A FTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
O RDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRO NIC D ATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABA SE, TH E C ITATION M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


       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 21 st day of December, two thousand nine.

PRESENT:            JOHN M. WALKER, JR.,
                    REENA RAGGI,
                               Circuit Judges,
                    JED S. RAKOFF,
                               District Judge.*

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PAMELA CARVEL,
                                                   Plaintiff-Appellant,
                               v.                                                     No. 08-3703-cv

ANDREW CUOMO, Attorney General of the State of
New York, on behalf of the People of the State of New
York and the Ultimate Charitable Beneficiaries of the
Thomas and Agnes Carvel Foundation,
                                 Defendant-Appellee.
-----------------------------------------------------------------------------------



          *
         District Judge Jed S. Rakoff of the United States District Court for the Southern
District of New York, sitting by designation.
APPEARING FOR APPELLANT:                  PAMELA CARVEL, pro se, London, England.

APPEARING FOR APPELLEE:                   RAJIT S. DOSANJH, Assistant Solicitor General
                                          (Barbara D. Underwood, Solicitor General,
                                          Andrea Oser, Deputy Solicitor General, on the
                                          brief), for Andrew M. Cuomo, Attorney General
                                          of the State of New York, Albany, New York.

       Appeal from the United States District Court for the Northern District of New York

(Lawrence E. Kahn, Judge).

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

DECREED that the judgment entered on June 26, 2008, is AFFIRMED.

       Pro se plaintiff Pamela Carvel, the niece of the ice cream franchiser, sued defendant

Andrew Cuomo, the Attorney General of the State of New York (the “Attorney General”),

to compel him to bring an action to dissolve the Thomas and Agnes Carvel Foundation (the

“Foundation”). She now appeals from the dismissal of her complaint pursuant to Federal

Rule of Civil Procedure 12(b)(1) and 12(b)(6) and from the denial of leave to amend. We

review the dismissal of a complaint under either subsection de novo. See Chambers v. Time

Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); Makarova v. United States, 201 F.3d 110,

113 (2d Cir. 2000). In doing so, we assume the parties’ familiarity with the facts and record

of prior proceedings, which we reference only as necessary to explain our decision to affirm.

       Plaintiff’s claims against the Attorney General reduce to his alleged failure (1) to

bring an action to dissolve the Foundation under N.Y. Not-for-Profit Corp. Law § 1101 or

(2) “to enforce the rights of [charitable] beneficiaries by appropriate proceedings in the


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courts” under N.Y. Est. Powers & Trusts Law § 8-1.1(f). It is well-established that “[t]he

Eleventh Amendment bars federal suits against state officials on the basis of state law.”

Allen v. Cuomo, 100 F.3d 253, 260 (2d Cir. 1996); see Pennhurst State School & Hosp. v.

Halderman, 465 U.S. 89, 106 (1984) (“[I]t is difficult to think of a greater intrusion on state

sovereignty than when a federal court instructs state officials on how to conform their

conduct to state law.”); Davis v. Lansing, 851 F.2d 72, 74 (2d Cir. 1988) (“The federal courts

have no general power to compel action by state officials.”). Accordingly, we conclude that

the district court correctly dismissed plaintiff’s complaint for lack of jurisdiction.

       While plaintiff’s complaint recites violations of the federal Constitution and federal

statutes, including the Internal Revenue Code and the Racketeer Influenced and Corrupt

Organizations Act, 18 U.S.C. § 1961 et seq., plaintiff has not alleged that the Attorney

General himself violated any federal law or that he had any “personal involvement” in the

alleged deprivation of her constitutional rights. Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.

2006) (internal quotation marks omitted). Thus, construing the pro se complaint liberally,

as we must, see Boykin v. KeyCorp., 521 F.3d 202, 214 (2d Cir. 2008), we also conclude

that, to the extent we have jurisdiction, plaintiff has failed to “state a claim to relief that is

plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and that the

district court did not abuse its discretion in denying plaintiff leave to amend, see McCarthy

v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (reviewing denial of leave to

amend for abuse of discretion); Van Buskirk v. N.Y. Times Co., 325 F.3d 87, 91 (2d Cir.

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2003) (noting that leave to amend is appropriate “when a liberal reading of the complaint

gives any indication that a valid claim might be stated” (internal quotation marks omitted)).

       We have considered plaintiff’s other arguments on appeal and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                            FOR THE COURT:
                            CATHERINE O’HAGAN WOLFE, Clerk of Court


                            By:    ___________________________________




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