     09-2103-cv
     Prophete v. Officer Cortes


                                  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. W hen 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 for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 6th day of July, two thousand ten.
 4
 5   PRESENT:
 6
 7                      RALPH K. WINTER,
 8                      JOSEPH M. McLAUGHLIN,
 9                      DEBRA ANN LIVINGSTON,
10                                       Circuit Judges.
11
12
13   GERALD PROPHETE,
14                 Plaintiff-Appellant,
15
16                      v.                                                       09-2103-cv
17                                                                               Summary Order
18   NEW YORK POLICE DEPARTMENT,
19                  Defendant-Appellee,
20
21   CITY OF NEW YORK,
22                  Defendant.
23
24
25                                                              Gerald Prophete, pro se, Brooklyn, NY, for
26                                                              Plaintiff-Appellant.
27
28                                                              Alan G. Krams, Law Department, The City of
29                                                              New York, New York, NY, for Defendant-
30                                                              Appellee.
31


32
 1          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED

 2   that the judgment of the district court is AFFIRMED.

 3          Plaintiff-Appellant Gerald Prophete, pro se, appeals from the September 9, 2008 and April

 4   17, 2009 orders and the April 21, 2009 judgment of the United States District Court for the Eastern

 5   District of New York (Gershon, J.), dismissing his 42 U.S.C. § 1983 claims against the City of New

 6   York, and sua sponte dismissing his § 1983 claims against Officer Cortes for failure to prosecute.

 7   We assume the parties’ familiarity with the underlying facts and procedural history of the case.

 8          We review de novo a district court’s decision to dismiss a complaint for failure to state a

 9   claim, taking all factual allegations in the complaint as true and drawing all reasonable inferences

10   in favor of the plaintiff. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). Here, Prophete does not

11   challenge the district court’s dismissal of his claims against the City of New York, and those claims

12   are therefore waived. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (“[W]e

13   need not manufacture claims of error for an appellant proceeding pro se, especially when he has

14   raised an issue below and elected not to pursue it on appeal.”).

15          Insofar as the district court dismissed Prophete’s claim against Officer Cortes for failure to

16   prosecute, we construe the district court’s order as a dismissal for failure to serve. We review such

17   dismissals for abuse of discretion. See Zapata v. City of New York, 502 F.3d 192, 195 (2d Cir.

18   2007). A district court abuses its discretion if it bases its ruling on an erroneous view of the law or

19   clearly erroneous findings of fact, or if its decision “cannot be located within the range of

20   permissible decisions.” Lynch v. City of New York, 589 F.3d 94, 99 (2d Cir. 2009) (internal

21   quotation marks omitted). Federal Rule of Civil Procedure 4(m) provides that “[i]f a defendant is

22   not served within 120 days after the complaint is filed, the court — on motion or on its own after


                                                       2
 1   notice to the plaintiff — must dismiss the action without prejudice against that defendant or order

 2   that service be made within a specified time. But if the plaintiff shows good cause for the failure,

 3   the court must extend the time for service for an appropriate period.” We will not overrule a district

 4   court’s dismissal for lack of service unless the appellant “advance[s] some colorable excuse for

 5   neglect.” Zapata, 502 F.3d at 198 (affirming district court’s dismissal under previous version of

 6   Rule 4(m), where record showed that plaintiff had made no effort to effect service and had not

 7   moved for an extension within a reasonable time); see also Fed R. Civ. P. 4(m) advisory

 8   committee’s note (noting that changes to Rule 4 under 2007 Amendment were intended to be

 9   stylistic only).

10           We find that the district court did not abuse its discretion when it dismissed Prophete’s

11   complaint sua sponte for failure to effect service upon Officer Cortes. The record indicates that after

12   granting Prophete leave to add Officer Cortes as a defendant and excusing Prophete’s failure to

13   amend his complaint within the time permitted by its order, the district court gave Prophete 120 days

14   in which to serve Officer Cortes, and provided him notice that failure to effect service, or to show

15   good cause why service could not be effected, could result in a dismissal of his complaint. We find

16   nothing in the record to suggest that Prophete made any effort to effect service, moved for an

17   extension of time to serve Officer Cortes, or demonstrated good cause for failure to effect service.

18   In his brief, Prophete neither explains any effort he made to effect service, nor does he “advance

19   some colorable excuse for neglect.” Zapata, 502 F.3d at 198.

20           We have considered all of Prophete’s other arguments and find them to be without merit.

21   For the reasons stated above, the judgment of the district court is AFFIRMED.

22
23                                                          FOR THE COURT:
24                                                          Catherine O’Hagan Wolfe, Clerk
25
26




                                                       3
