    15-695
    Chen 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 ASUMMARY ORDER@). A PARTY CITING TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 8th day of December, two thousand fifteen.

    PRESENT:
                BARRINGTON D. PARKER,
                PETER W. HALL,
                SUSAN L. CARNEY,
                      Circuit Judges.
    _____________________________________

    Ed Chen,

                               Plaintiff-Appellant,

                      v.                                                        15-695

    City of New York,

                               Defendant-Appellee.

    _____________________________________


    FOR PLAINTIFF -APPELLANT:                         Ed Chen, pro se, Township of Washington, New
                                                      Jersey.

    FOR DEFENDANT-APPELLEE:                           No appearance.

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

    New York (Preska, C.J.).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Ed Chen, proceeding pro se, appeals the district court’s judgment dismissing

without leave to amend his 42 U.S.C. § 1983 complaint against the City of New York. Chen

alleged that the City retaliated against him for his political activity by causing Columbia

University to take several adverse actions against him. We assume the parties= familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

       We review the district court’s sua sponte dismissal de novo. Giano v. Goord, 250 F.3d

146, 149–50 (2d Cir. 2001). A complaint must plead “enough facts to state a claim to relief that is

plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[] the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). A municipality is liable under § 1983 only if its policy or

custom caused the deprivation of a federal right. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

694 (1978).

       The district court did not err when it dismissed Chen’s complaint because the complaint

did not plausibly allege that a City policy or custom resulted in his dismissal from Columbia. A

district court generally should not dismiss a pro se complaint without first granting leave to amend.

Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009). However, leave was properly

denied here because amendment would be futile. Considering all of the allegations in Chen’s

complaint and his brief, we determine that he has not stated a claim against the City. See Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (reasoning leave to replead would be futile because the




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complaint did not “suggest[] that the plaintiff has a claim that []he has inadequately or inartfully

pleaded”).

       Chen argues that he should be granted leave to amend to name individual Columbia

officials who he alleges acted at the direction of the City. This argument lacks merit. Columbia

employees are not subject to suit under § 1983 because they are not state actors. See Am. Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). And Chen has not plausibly alleged that any

Columbia official conspired with a state actor. To state a § 1983 conspiracy claim, the plaintiff

“must allege (1) an agreement between a state actor and a private party; (2) to act in concert to

inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing

damages.” Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324–25 (2d Cir. 2002). Chen’s

allegations that a professor and dean met with City officials and that the dean later received a

political appointment in City government do not state a plausible conspiracy claim. See Iqbal,

556 U.S. at 679 (reasoning that complaint does not state a claim if “the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct”).

       Finally, Chen’s allegation that the District Attorney failed to prosecute a law firm that

forged Chen’s signature does not state a claim. He does not have a constitutional right to the

prosecution of another. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).

       We have considered all of Chen’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




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