09-4187-cv
Etere v. C ity of N ew Y ork


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM MARY ORDER M UST 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 United States Courthouse, 500 Pearl Street, in the City of New
York, on the 16 th day of June, two thousand ten.

PRESENT:         REENA RAGGI,
                 GERARD E. LYNCH,
                 J. CLIFFORD WALLACE,*
                                 Circuit Judges.
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EMMANUEL ETERE,
                                 Plaintiff-Appellant,

                       v.                                               No. 09-4187-cv

THE CITY OF NEW YORK, THE NEW YORK
CITY DEPARTMENT OF CORRECTIONS,
MARTIN HORN, CAROLINE THOMAS, ROBERT
SHAW, LIONEL LORQUET, DWP WILLIAM
DIAZ, CAPTAIN DEMETRICE BEST, MICHAEL
O’LEARY, RICHARD VAZQUEZ,
                                 Defendants-Appellees.
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           *
         Circuit Judge J. Clifford Wallace of the United States Court of Appeals for the Ninth
Circuit, sitting by designation.
APPEARING FOR APPELLANT:                    EMMANUEL ETERE, pro se, Bay Shore, New
                                            York.

APPEARING FOR APPELLEES:                    DRAKE COLLEY (Edward F.X. Hart, Leonard
                                            Koerner, of counsel, on the brief), for Michael A.
                                            Cardozo, Corporation Counsel of the City of New
                                            York, New York, New York.

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

of New York (Sidney H. Stein, Judge.)

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Pro se plaintiff Emmanuel Etere, a former provisional employee of the New York City

Department of Corrections (“DOC”), appeals from the district court’s dismissal under Fed.

R. Civ. P. 12(b)(6) of his complaint pursuant to 42 U.S.C. § 1983 alleging that defendants

deprived him of a property interest without due process of law by suspending him and

terminating his employment.1       We review such a dismissal de novo, “construing the

complaint liberally, accepting all factual allegations in the complaint as true, and drawing all

reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d

147, 152 (2d Cir. 2002). In applying this standard, we assume familiarity with the facts and

the record of prior proceedings, which we reference only as necessary to explain our decision


       1
          On appeal, Etere does not pursue his claims that defendants (1) deprived him of a
liberty interest without due process by damaging his prospects of future employment and (2)
negligently caused him to sustain personal injury. Accordingly, we deem those claims
abandoned. See Hobbs v. County of Westchester, 397 F.3d 133, 147 (2d Cir. 2005);
LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995).

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to affirm.

       A plaintiff asserting a procedural due process claim under § 1983 must show that “a

government entity deprived [him] of a right secured by law.” Finley v. Giacobbe, 79 F.3d

1285, 1296 (2d Cir. 1996). A property interest in employment may be the subject of a due

process claim only if the plaintiff has “a legitimate claim of entitlement to it.” Board of

Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Such an interest is established not

by the Constitution but by “existing rules or understandings that stem from an independent

source such as state law-rules . . . .” Id.

       Under New York law, a provisional employee “has no property rights in his position

and may be lawfully discharged without a hearing and without any stated specific reason.”

Finley v. Giacobbe, 79 F.3d at 1297 (internal quotation marks omitted); accord Brennan v.

N.Y. City Bd. of Educ., 260 F.3d 123, 130 (2d Cir. 2001). Further, because a provisional

employee has “no property interest in the employment, there can be no property interest in

the procedures that follow from the employment.” Jannsen v. Condo, 101 F.3d 14, 16 (2d

Cir. 1996).

       Etere concedes that he was a provisional employee. As such, he lacked a property

interest either in his employment or in any related procedural protections, such as notice of

the reasons for his suspension or a pre-termination hearing. Thus, Etere cannot state a claim

for the deprivation of property without due process based on defendants’ failure to afford him

such protections. Nor can Etere state a due process claim for retaliation based on his




                                              3
assertion of procedural rights that he did not possess.2 Accordingly, his complaint was

properly dismissed.

       We have considered Etere’s other arguments on appeal, and we conclude that they are

without merit. The judgment of the district court is AFFIRMED.

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




       2
         Because Etere’s provisional employment did not entitle him to any procedural
protections, we need not consider his contention that the district court erred by declining to
take judicial notice of DOC regulations allegedly describing such protections.

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