         13-4884
         Ortiz v. City of New York


                                 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.

 1              At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       24th day of December, two thousand fourteen.
 4
 5       PRESENT:
 6                   DENNIS JACOBS,
 7                   DEBRA ANN LIVINGSTON,
 8                   RAYMOND J. LOHIER, JR.,
 9                         Circuit Judges.
10       _____________________________________
11
12       Anibal Ortiz,
13
14                                   Plaintiff-Appellant,
15
16                                                                   13-4884-cv
17
18                         v.
19
20       The City of New York, et al.,
21
22                                   Defendants-Appellees.
23
24       _____________________________________
25
26       FOR PLAINTIFF-APPELLANT:                            Anibal Ortiz, pro se, New York, NY
27
28       FOR DEFENDANTS-APPELLEES:                           Larry Sonnenshein, Assistant Corporation
29                                                           Counsel, Christina S. Chung, Special
30                                                           Assistant Corporation Counsel, New York
31                                                           City Law Department, New York, NY
 1          Appeal from a judgment of the United States District Court for the Southern District of

 2   New York (Furman, J.).

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

 4   DECREED that the partial summary judgment of the district court is AFFIRMED and that the

 5   remainder of the appeal is DISMISSED without prejudice to reinstatement.

 6          Appellant Anibal Ortiz, pro se, appeals the district court’s grant of partial summary

 7   judgment in favor of the defendants on his 42 U.S.C. § 1983 claims for municipal liability, and

 8   its dismissal of his remaining claims for malicious prosecution, false arrest, and excessive force

 9   following a jury verdict. We assume the parties’ familiarity with the underlying facts, the

10   procedural history of the case, and the issues on appeal.

11          A grant of summary judgment is reviewed de novo, on the principle that “[s]ummary

12   judgment is appropriate only if the moving party shows that there are no genuine issues of

13   material fact and that the moving party is entitled to judgment as a matter of law.” Miller v.

14   Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). We are required to resolve all

15   ambiguities and draw all inferences in favor of the non-movant. Nationwide Life Ins. Co. v.

16   Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir. 1999). Summary judgment is appropriate

17   “[w]here the record taken as a whole could not lead a rational trier of fact to find for the

18   non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

19   (1986) (internal quotation marks omitted).

20          To establish municipal liability for unconstitutional acts by municipal employees, a

21   plaintiff must show that the violation of his constitutional rights was actually caused by a

22   municipal policy, custom, or practice. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91


                                                       2
 1   (1978). A plaintiff must thus plead and prove “(1) an official policy or custom that (2) causes

 2   the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v. City of New York,

 3   490 F.3d 189, 195 (2d Cir. 2007) (internal quotation marks omitted).

 4          Here, Ortiz has neither pleaded nor demonstrated any causal connection between any

 5   municipal policy, custom, or practice and his arrest, even assuming such a connection would

 6   assist his case. Summary judgment was therefore appropriate on the issue of municipal liability.

 7   As to the other claims on which the district court granted summary judgment to defendants, Ortiz

 8   raises no arguments concerning them in his appellate brief and they are therefore waived. See

 9   LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995) (issues not raised in appellate brief

10   are considered abandoned). Accordingly, the district court’s grant of partial summary judgment

11   is affirmed.

12          Ortiz challenges the personal jurisdiction of the district court, but it was Ortiz who

13   initiated this suit as plaintiff, and thereby invoked the court’s jurisdiction. See Adam v. Saenger,

14   303 U.S. 59, 67-68 (1938).

15          Finally, Ortiz appears to challenge the jury verdict dismissing his malicious prosecution,

16   false arrest, and excessive force claims by asserting that the initial criminal complaint against

17   him was invalid. The precise nature of this challenge is unclear from his brief. Moreover,

18   because Ortiz has provided no transcripts relevant to his appeal, we lack the ability to conduct

19   meaningful appellate review. Under Federal Rule of Appellate Procedure 10(b), it is the

20   appellant’s duty to order the transcripts he considers necessary for his appeal and, “[i]f the

21   appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or

22   is contrary to the evidence, [he] must include in the record a transcript of all evidence relevant to


                                                       3
1    that finding . . . .” Fed. R. App. P. 10(b)(1)-(2) (emphasis added). While dismissal of the appeal

2    is not “mandatory” when the appellant fails to provide transcripts as required by Rule 10, see

3    Savard v. Marine Contracting Inc., 471 F.2d 536, 543 (2d Cir. 1972), it is our practice to do so if

4    the failure to provide the relevant transcripts “deprives this Court of the ability to conduct

 5   meaningful appellate review,” Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per

 6   curiam) (citing Fed. R. App. P. 3(a)(2)).

 7            When a pro se appellant has failed to provide the necessary transcripts and there is no

 8   indication that he was informed of his Rule 10 obligations, it is our practice to dismiss without

 9   prejudice to reinstatement. See Gayle v. Walker, 148 F.3d 214, 214 (2d Cir. 1998).

10   Accordingly, the portion of Ortiz’s appeal that concerns the trial proceedings is dismissed

11   without prejudice to reinstatement provided that, within 30 days of this order, Ortiz provides this

12   Court with: (1) the relevant transcripts; (2) proof that he has ordered the transcripts; or (3) proof

13   that he has moved in the district court for free transcripts. See Gayle, 148 F.3d at 214.

14   Furthermore, should Ortiz seek reinstatement of this appeal, he must submit a letter brief

15   explaining the exact nature of his challenge to the trial proceedings below, in addition to the

16   relevant transcripts. Upon timely filing of the letter brief and the relevant transcripts, the appeal

17   will be reinstated. Failure timely and properly to re-file this action may result in its dismissal

18   with prejudice.

19            We have considered all of Ortiz’s remaining arguments and find them to be without

20   merit.




                                                       4
1          Accordingly, we AFFIRM the judgment of the district court to the extent of its grant of

2   partial summary judgment, and we DISMISS the remainder of the appeal without prejudice to

3   reinstatement.

4                                               FOR THE COURT:
5                                               Catherine O’Hagan Wolfe, Clerk
6
7




                                                   5
