09-4507-pr
Cotton v. McCarthy



                                    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.

       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 thirtieth day of June, two thousand and ten.


PRESENT:

          ROGER J. MINER ,
          JOSÉ A. CABRANES,
          RICHARD C. WESLEY ,
                               Circuit Judges.
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MAURICE COTTON ,

                               Plaintiff-Appellant,

          v.                                                                               No. 09-4507-pr

ERIN MC CARTHY , THOMAS BEYERS, CHRISTOPHER STERLACE ,
CITY OF BUFFALO ,

                               Defendants-Cross-Claimants-Appellees,

BOYD LEE DUNLOP,

                               Defendant-Cross-Defendant.*

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          *
              The Clerk of Court is directed to amend the official caption to conform to the listing of the parties stated
above.
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FOR PLAINTIFF-APPELLANT:                         Maurice Cotton, pro se, Buffalo, NY.


FOR DEFENDANTS-APPELLEES:                        Carmen J. Gentile, Assistant Corporation Counsel
                                                 (David Rodriguez, Acting Corporation Counsel, of
                                                 counsel), City of Buffalo Department of Law, Buffalo,
                                                 NY.

       Appeal from a judgment of the United States District Court for the Western District of New
York (William M. Skretny, Chief Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Plaintiff-appellant Maurice Cotton (“plaintiff” or “Cotton”), pro se, appeals from a judgment
of the District Court, dismissing his claims brought pursuant to 42 U.S.C. § 1983 and state law
against defendants-appellees Erin McCarthy, Thomas Beyers, Christopher Sterlace, and the City of
Buffalo (“defendants”). We assume the parties’ familiarity with the factual and procedural history of
the case.

         Generally, a district court’s dismissal of some, but not all, defendants is not an appealable
order under 28 U.S.C. § 1291 unless the court certifies an appeal from that order. See Fed. R. Civ. P.
54(b); In re Chateaugay Corp., 928 F.2d 63, 64 (2d Cir. 1991). We have recognized, however, that
when the court has dismissed all of the served defendants, and only unserved defendants “remain,”
there is no reason to preclude the immediate and automatic entry of a final judgment, as there is no
basis for believing that there will be any further adjudications in the action. See Leonhard v. United
States, 633 F.2d 599, 608 (2d Cir. 1980). Here, there was confusion in the record regarding
defendant Boyd Dunlop’s address, and at least one show cause order was returned to the District
Court as undeliverable. Moreover, Dunlop did not appear, which, together with the returned order,
led the District Court to conclude that he may not have been served and to decline to enter a default
judgment against him. Therefore, as “there is no basis for believing there will be any further
adjudications” in this case, we will treat the judgment entered as final and appealable. See id.

         Turning to the merits, we find no error in the District Court’s comprehensive analysis of
plaintiff’s claims, and we agree that the allegations in plaintiff’s complaint were insufficient to state a
claim under 42 U.S.C. § 1983. See Fed. R. Civ. P. 12(b)(6). Accordingly, we affirm the judgment of
the District Court substantially for the reasons stated in its thorough Decision and Order dated
September 28, 2009. See Cotton v. McCarthy, No. 06-CV-477S, 2009 WL 3165606 (W.D.N.Y. Sept.
28, 2009).

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                                        CONCLUSION

       We have considered all of plaintiff’s arguments and find them to be without merit. For the
foregoing reasons, the judgment of the District Court is AFFIRMED.


                                             FOR THE COURT,
                                             Catherine O’Hagan Wolfe, Clerk of Court




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