10-4375-cv
Schultz v. The Incorporated Village of Bellport, et al.


                                     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
Richard C. Lee United States Courthouse, 141 Church Street, in the City of New Haven, Connecticut,
on the 1st day of May, two thousand twelve.

PRESENT:

          RALPH K. WINTER,
          JOSEPH M. MCLAUGHLIN,
          JOSÉ A. CABRANES,

                  Circuit Judges
_____________________________________

Thomas V. Schultz,

                                Plaintiff-Appellant,

                     v.                                                10-4375-cv

The Incorporated Village of Bellport, Robert A.
Green, Roger A. Terrel, Scott Augustine, Donald
Mullins, Hugh Montgomery, Paul Bondachuck, Scott
Rascelles, Officer Stewart #13,

                                Defendants-Appellees,

Frank C. Trotta, Robert Lyons, III, John N. Orlando,
J. Lee Snead, Adam R. Friedlander, Jane Doe Montgomery,
wife of Hugh Montgomery,

                                Defendants.
FOR PLAINTIFF-APPELLANT:                        Michael P. Mangan, New York, NY.

FOR DEFENDANT-APPELLEE:                         Kelly C. Spina, Miranda Sambursky Slone Sklarin
                                                Verveniotis LLP, Mineola, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Joseph F. Bianco, Judge).

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

        Plaintiff-Appellant Thomas V. Schultz appeals from a judgment of the District Court
granting the defendants’ motion for summary judgment and dismissing his claims under 42 U.S.C. §
1983 for violation of his Fourteenth Amendment right to substantive due process and for
conspiracy to deprive him of this right.1 We assume the parties’ familiarity with the underlying facts,
the procedural history of the case, and the issues on appeal.

                                                   I.

        Schultz first argues that the District Court should have construed his Amended Complaint as
advancing § 1983 claims for false arrest and malicious prosecution in violation of the Fourth
Amendment. Schultz, who was represented by counsel, raised state-law claims of false arrest and
malicious prosecution in his Amended Complaint, but pursuant to a stipulation between the parties,
the District Court ordered these and other state-law claims dismissed with prejudice. Therefore, as
Schultz’s attorney expressly conceded at oral argument on defendants’ motion for summary
judgment, the only claims before the District Court were “a substantive due process claim based
upon an alleged deprivation of liberty interest . . . and a conspiracy claim.”

        It is well established that, as a general rule, “a federal appellate court does not consider an
issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976). Schultz urges us to
exercise our discretion to consider his false-arrest and malicious-prosecution claims for the first time
on appeal because they “raise serious constitutional issues involving a group of high-ranking local
government officials’ acts to prevent a competitor from succeeding in an election against them,” and


        1
          Out of “an abundance of caution,” the District Court also considered whether Schultz
could survive summary judgment on a procedural due process claim, notwithstanding the absence of
such a claim in the Amended Complaint. The District Court concluded that, even if Schultz had
advanced a claim for violation of his procedural due process rights, there was no support for such a
claim and it was therefore dismissed. Schultz does not appeal this aspect of the District Court’s
judgment.

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would require no further factual development. We decline to do so. Though the matter is
undoubtedly of exceptional importance to Schultz, we respectfully doubt that our intervention is
required to correct a grave injustice. Furthermore, as Schultz himself concedes, he conducted little
or no discovery; we are therefore skeptical that we could adequately address these new claims on the
current record. Accordingly, we decline to review Schultz’s newly advanced § 1983 claims for false
arrest and malicious prosecution.

                                                  II.

      Schultz also argues that the District Court erred in dismissing the claims that were before
it—namely, his substantive due process claim and conspiracy claim, both brought pursuant to §
1983.

         We review orders granting summary judgment de novo and focus on whether the district court
properly concluded that there was no genuine issue as to any material fact and the moving party was
entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d
Cir. 2003). In determining whether there are genuine issues of material fact, we are “‘required to
resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom
summary judgment is sought.’” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (quoting Stern v.
Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997)). Summary judgment is appropriate “[w]here
the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         Following a de novo review of the record, we affirm for substantially the same reasons stated
by the District Court in its careful Memorandum and Order of September 30, 2010. See Schultz v. Inc.
Vill. of Bellport, No. 08-cv-930, 2010 WL 3924751 (E.D.N.Y. Sept. 30, 2010).

         Schultz’s substantive due process claim was based on the defendants’ alleged infringement of
his right to choose his own field of private employment. He alleged that, as a result of the
defendants’ conduct, “he had to close his business due to extraordinary decline in patronage.”
However, as the District Court observed, this type of due process claim requires a showing that the
plaintiff has been prevented from exercising his right to choose his own employment. See, e.g., Conn v.
Gabbert, 526 U.S. 286, 291–92 (1999) (recognizing that cases in this area “all deal with a complete
prohibition of the right”). Here, even if it could be inferred that the defendants’ actions damaged
Schultz’s business, there is no evidence from which a rational jury could conclude that they directly
blocked him from participating in his chosen line of work.




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         Because Schultz was unable to establish an underlying violation of his constitutional rights
(and because we have declined his invitation to exercise our discretion to consider his newly raised
claims for false arrest and malicious prosecution), his conspiracy claim and newly advanced Monell2
claim necessarily fail as well. See Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009) (“Because
neither of the underlying section 1983 causes of action can be established, the claim for conspiracy
also fails.”); Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (“Because the district court
properly found no underlying constitutional violation, its decision not to address the municipal
defendants’ liability under Monell was entirely correct.”).

                                               CONCLUSION

       We have considered all of Schultz’s arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the District Court.

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




        2
            Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

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