    15-1062
    Kelly v. New York State Civil Service Commission


                           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 ASUMMARY 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 25th day of January, two thousand sixteen.

    PRESENT:
                ROSEMARY S. POOLER,
                PETER W. HALL,
                SUSAN L. CARNEY,
                      Circuit Judges.
    _____________________________________

    James F. Kelly,

                               Plaintiff-Appellant,

                      v.                                                            15-1062

    New York State Civil Service Commission, Jerry Boone, in His Official Capacity as
    President of the New York State Civil Service Commission, Patricia A. Hite, in Her Official
    Capacity as Past Acting President of the New York State Civil Service Commission,
    Caroline W. Ahl, in Her Official Capacity as Commissioner of the New York State Civil
    Service Commission, Dennis J. Hanrahan, in His Official Capacity as Commissioner of the
    New York State Civil Service Commission,

                      Defendants-Appellees.
    _____________________________________

    FOR PLAINTIFF-APPELLANT:                           James F. Kelly, pro se, Hyde Park, NY.

    FOR DEFENDANTS-APPELLEES:                          Eric T. Schneiderman, Attorney General of the State
                                                       of New York; Barbara D. Underwood, Solicitor
                                                       General; Anisha S. Dasgupta, Deputy Solicitor
                                              General; Philip V. Tisne, Assistant Solicitor
                                              General, New York, NY.

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

District of New York (Briccetti, J.).


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

DECREED that the judgment and order of the district court are AFFIRMED.

       Appellant James F. Kelly, proceeding pro se, appeals from the district court’s judgment

dismissing his claims that the defendants violated 42 U.S.C. § 1983, the Age Discrimination in

Employment Act of 1967 (“ADEA”), and state law by enforcing New York Civil Service Law

§ 58(1)(a), and its order denying reconsideration of that decision. Although Kelly’s notice of

appeal explicitly identifies only the district court’s order denying reconsideration, his intent to

appeal both the dismissal and reconsideration orders is clear from the face of his notice of appeal.

New Phone Co. v. City of N.Y., 498 F.3d 127, 131 (2d Cir. 2007). Accordingly, we consider his

challenge to both orders. 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 grant of a motion to dismiss for lack of subject matter jurisdiction

or for failure to state a claim. Fink v. Time Warner Cable, 714 F.3d 739, 740-41 (2d Cir. 2013);

Moser v. Pollin, 294 F.3d 335, 339 (2d Cir. 2002). Denials of motions for reconsideration are

reviewed for abuse of discretion. Schwartz v. Liberty Mut. Ins. Co., 539 F.3d 135, 150 (2d Cir.

2008). We liberally construe Kelly’s pro se submissions as raising the strongest arguments they

suggest. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).

       Upon review, we conclude that the district court correctly determined that the Eleventh

Amendment shields the defendants from Kelly’s Section 1983 and ADEA claims. The Eleventh

Amendment precludes suits against states and state agencies unless the state expressly waives its
immunity or Congress abrogates that immunity. CSX Transp., Inc. v. N.Y. State Office of Real

Prop. Servs., 306 F.3d 87, 94-95 (2d Cir. 2002). “The reach of the Eleventh Amendment has . . .

been interpreted to extend beyond the terms of its text to bar suits in federal courts against states,

by their own citizens or by foreign sovereigns.” State Emps. Bargaining Agent Coal. v. Rowland,

494 F.3d 71, 95 (2d Cir. 2007) (internal quotation marks omitted). The Commission is an

instrumentality of New York State. See Leitner v. Westchester Cmty. Coll., 779 F.3d 130, 134 (2d

Cir. 2015). Although suits against state officers acting in their official capacities that seek

prospective injunctive relief to prevent a continuing violation of federal law are authorized under

Ex Parte Young, 209 U.S. 123 (1908), the district court correctly concluded that Young does not

apply here. The state officer against whom prospective relief is sought “must have some

connection with the enforcement of the act” that violates federal law. Id. at 154; see also In re

Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 372-73 (2d Cir. 2005). That requirement is

not satisfied here. In addition, Young does not allow a federal court to issue an injunction for a

violation of state law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984).

         We have considered all of Kelly’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment and order of the district court. Each side to bear its own

costs.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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