     12-5040-cv
     Cobbs v. City of Newburgh

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of November, two thousand thirteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                CHESTER J. STRAUB,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       ROBIN COBBS,
13
14                    Plaintiff-Appellant,
15
16                    -v.-                                              No. 12-5040-cv
17
18       THE CITY OF NEWBURGH - CITY COUNCIL,
19       THE NEWBURGH CITY POLICE DEPARTMENT,
20       NEWBURGH CITY POLICE OFFICER PAUL N.
21       WEBER, in his official and individual
22       capacities, NEWBURGH CITY POLICE
23       OFFICER JOHN J. BUCKLEY, in his
24       official and individual capacities,
25
26                Defendants-Appellees.*
27       - - - - - - - - - - - - - - - - - - - -X

                *
               The Clerk of Court is respectfully directed to amend
         the official caption in this case to conform with the
         caption above.
                                                  1
 1   FOR PLAINTIFF-APPELLANT:    DOUGLAS R. DOLLINGER, Goshen,
 2                               NY.
 3
 4   FOR DEFENDANTS-APPELLEES:   HOLLY L. REINHARDT, Tarshis,
 5                               Catania, Liberth, Mahon &
 6                               Milligram, PLLC, Newburgh, NY.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Southern District of New York (Smith, Mag.
10   J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16       Robin Cobbs appeals from the judgment dismissing her

17   complaint against the City of Newburgh (“Newburgh”) and

18   Police Officers John J. Buckley and Paul N. Weber.    We

19   assume the parties’ familiarity with the underlying facts,

20   the procedural history, and the issues on appeal.

21       We review de novo a grant of summary judgment, drawing

22   all reasonable inferences in the non-moving party’s favor.

23   See Wrobel v. Cnty. of Erie, 692 F.3d 22, 27 (2d Cir. 2012).

24   Summary judgment is appropriate if the record shows that

25   “there is no genuine dispute as to any material fact and the

26   movant is entitled to judgment as a matter of law.”    Fed. R.

27   Civ. P. 56(a).   A genuine dispute of material fact exists

28   only “where the evidence is such that a reasonable jury

29   could decide in the non-movant’s favor.”    Beyer v. Cnty. of

30   Nassau, 524 F.3d 160, 163 (2d Cir. 2008).

                                   2
1        1.   § 1983 Claims Against Buckley and Weber.     Cobbs’s

2    § 1983 claims against Buckley and Weber fail because there

3    is no genuine dispute as to whether they were “acting under

4    color of state law.”   Sykes v. Bank of Am., 723 F.3d 399,

5    406 (2d Cir. 2013).

6        “Mere employment by a state or municipality does not

7    automatically mean that a defendant’s actions are taken

8    under the color of state law.”    Kern v. City of Rochester,

9    93 F.3d 38, 43 (2d Cir. 1996).    Actions taken by municipal

10   employees solely in their capacity as union leaders or

11   members are not cognizable under § 1983.    See id.

12       Cobbs contends that Weber was acting as a police

13   officer, rather than in his capacity as union president.

14   However, Weber testified that: he was acting purely as a

15   union leader; he was contacted by Buckley in that capacity;

16   and his duties as a police officer at that time were not at

17   City Hall.   Cobbs produced no evidence to contradict this

18   evidence and has therefore failed to present a genuine

19   dispute as to whether Weber was acting under color of law.

20       Though Buckley was on-duty, Cobbs provides no evidence

21   that Buckley (1) abandoned his post in order to allow the

22   removal of Cobbs’s mixed-media collage (the “picture”); or



                                   3
1    (2) contacted Weber in any capacity other than as a union

2    member.   Nor is there evidence that Buckley actually did

3    anything to deprive Cobbs of her constitutional rights.

4    Cobbs adduces no evidence to refute Buckley’s testimony that

5    he never requested the immediate removal of Cobbs’s picture.

6        2.    § 1985 Claims.    Cobbs has not established a

7    genuine dispute regarding her § 1985(3) claims against

8    Buckley and Weber.   She provides no evidence of “racial, or

9    . . . otherwise class-based, invidiously discriminatory

10   animus” motivating the officers, a required “element of the

11   cause of action.”    Griffin v. Breckenridge, 403 U.S. 88, 102

12   (1971); see also LeBlanc-Sternberg v. Fletcher, 67 F.3d 412,

13   426-27 (2d Cir. 1995).     The mere fact that a person objects

14   to a given statement, act, or depiction as “racist” does not

15   mean that the objection is itself “racist.”

16       3.    Municipal Liability.       Cobbs also fails to adduce

17   evidence sufficient to raise a genuine dispute of material

18   fact with respect to her municipal liability claims.

19   Newburgh cannot be held vicariously liable under § 1983 for

20   torts committed by an employee and Cobbs therefore cannot

21   rely on respondeat superior.     See Monell v. Dep’t of Soc.

22   Servs., 436 U.S. 658, 691 (1978).       Conclusory allegations in



                                      4
1    Cobbs’s complaint do not show any custom or pattern of

2    invidious treatment of African Americans.

3        Cobbs also fails to produce evidence that Buckley or

4    Weber (or the executive assistant who removed the picture)

5    were policymakers with “‘final authority to establish

6    municipal policy with respect to the action ordered.’”

7    Vives v. City of N.Y., 524 F.3d 346, 350 (2d Cir. 2008)

8    (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481

9    (1986)).     Nor has Cobbs adduced evidence that final

10   policymakers approved or otherwise acquiesced in the

11   decision to remove Cobbs’s picture.     See City of St. Louis

12   v. Praprotnik, 485 U.S. 112, 127 (1988); Amnesty Am. v. Town

13   of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004).        In fact,

14   the uncontroverted evidence suggests that the city manager

15   disapproved of the decision and offered to re-hang the

16   picture.

17       To the extent Cobbs bases her municipal liability claim

18   on a failure to train, Cobbs has failed to show a resulting

19   constitutional injury.     Since the officers were not acting

20   under color of state law, there was no “constitutional

21   violation” that can be linked to an alleged failure to

22   train.     See Segal v. City of N.Y., 459 F.3d 207, 219 (2d



                                     5
1    Cir. 2006) (“Because the district court properly found no

2    underlying constitutional violation, its decision not to

3    address the municipal defendants’ liability under Monell

4    [for failure to properly train employees] was entirely

5    correct.”).

6        4.      Breach of Contract.   Cobbs presents no evidence of

7    any enforceable contract and corresponding breach by

8    Newburgh.     The signed “Waiver and Release” says nothing

9    about how long Cobbs’s pictures would be displayed or

10   Newburgh’s right to remove them, and includes an integration

11   clause that supersedes any prior oral agreement.

12   Regardless, the assertion of an additional oral agreement is

13   entirely conclusory and unsupported in the record.     See

14   Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir.

15   1996) (“[M]ere conclusory allegations, speculation or

16   conjecture will not avail a party resisting summary

17   judgment.”).




                                       6
1        We have considered all of Cobbs’s remaining arguments

2    and conclude that they are without merit.1   The judgment of

3    the district court is hereby affirmed.

 4
 5                              FOR THE COURT:
 6                              CATHERINE O’HAGAN WOLFE, CLERK
 7
 8
 9
10




         1
           Magistrate Judge Smith concluded that the Title VII
     and § 1985(1) claims, and any claims against defendant
     Newburgh City Police Department, were abandoned and
     meritless. Cobbs does not attempt to resuscitate them on
     appeal. We also need not reach Newburgh’s alternative
     arguments concerning qualified immunity and the scope of the
     “Waiver and Release,” because summary judgment is
     appropriate on the grounds discussed above.
                                  7
