     19‐327‐cv
     Castro v. Simon

                               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.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 1st day of October, two thousand nineteen.
 4
 5          PRESENT: GUIDO CALABRESI,
 6                           RAYMOND J. LOHIER, JR.,
 7                           MICHAEL H. PARK,
 8                                   Circuit Judges.
 9          ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
10          IVON CASTRO,
11
12                          Plaintiff‐Appellant,
13
14                     v.                                                        No. 19‐327‐cv
15
16          DINA SIMON, INDIVIDUALLY AND AS
17          DEPUTY COMMISSIONER, NEW YORK CITY
18          DEPARTMENT OF CORRECTION, ELIZABETH
19          CASTRO, CORRECTION OFFICERS’
20          BENEVOLENT ASSOCIATION, INC., STEVEN
21          ISAACS, MERCEDES MALDONADO,
22          KOEHLER & ISAACS LLP, CITY OF NEW
 1            YORK,
 2
 3                             Defendants‐Appellees.
 4            ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
 5            FOR APPELLANT:                            Ivon Castro, pro se, Bronx, NY.
 6
 7            FOR APPELLEES:                       Fay Sue Ng, Barbara Jeane Graves‐Poller,
 8                                                 Of Counsel, for Zachary W. Carter,
 9                                                 Corporation Counsel of the City of New
10                                                 York, New York, NY, for Dina Simon and
11                                                 City of New York
12
13                                                 Howard Wien, Koehler & Isaacs LLP, New
14                                                 York, NY, for Correction Officers’
15                                                 Benevolent Association, Inc., Elizabeth
16                                                 Castro, Koehler & Isaacs LLP, Steven
17                                                 Isaacs, and Mercedes Maldonado

18            Appeal from a judgment of the United States District Court for the Eastern

19   District of New York (Ann M. Donnelly, Judge).

20            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

21   AND DECREED that the judgment of the District Court is AFFIRMED.

22            Ivon Castro, proceeding pro se, appeals from a judgment of the District

23   Court (Donnelly, J.) dismissing her amended complaint. On appeal, Castro

24   challenges only the District Court’s dismissal of her claims against Dina Simon



     
         The Clerk of Court is directed to amend the official caption as shown above.

                                                      2
 1   and the City of New York for violating 42 U.S.C. § 1983 and New York Civil

 2   Service Law § 75. Those claims arose from her termination, allegedly without a

 3   hearing, as a Correction Officer with the New York City Department of

 4   Correction.1 We assume the parties’ familiarity with the underlying facts and

 5   prior record of proceedings, to which we refer only as necessary to explain our

 6   decision to affirm.

 7          We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6),

 8   accepting the factual allegations of the complaint as true. See Forest Park

 9   Pictures v. Universal Television Network, Inc., 683 F.3d 424, 429 (2d Cir. 2012).

10   A pro se complaint must be “liberally construe[d] . . . to raise the strongest

11   arguments it suggests.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).

12          The District Court dismissed Castro’s due process and New York Civil

13   Service Law claims on the ground that, as a probationary employee at the time of



     1 In her appellate brief, Castro abandons any claims against Defendants‐appellants
     Castro, Correction Officers’ Benevolent Association, Inc., Koehler & Isaacs LLP, Isaacs,
     and Maldonado. Her brief does not address the District Court’s dismissal of her § 1983
     liberty interest claim, the dismissal of any equal protection claims, or the decision not to
     exercise supplemental jurisdiction over state law claims. We therefore deem any
     challenges on these grounds to be abandoned also. See LoSacco v. City of
     Middletown, 71 F.3d 88, 93 (2d Cir. 1995).

                                                  3
 1   her termination, Castro lacked a property interest in her continued employment

 2   and section 75 did not apply to her. In determining that Castro was a

 3   probationary employee, the District Court relied in part on documents attached

 4   to the defendants’ motion to dismiss, which indicated that Castro’s initial

 5   probationary period had been extended through the day after her termination.

 6   These documents were not “integral” to Castro’s complaint or subject to any

 7   other exception that would have permitted the District Court to consider them

 8   on a motion to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153

 9   (2d Cir. 2002). The better course would have been to convert the motion to one

10   for summary judgment, see Fed. R. Civ. P. 12(d), or to exclude the documents

11   from consideration, see Palin v. N.Y. Times Co., 933 F.3d 160, 167 (2d Cir. 2019).

12   Nonetheless, even without the defendants’ exhibits, documents incorporated into

13   and attached to Castro’s amended complaint show that she was a probationary

14   employee at the time of termination. Although Castro disputes whether the 24‐

15   month probationary period was applicable to her as a matter of the City

16   personnel rules, she has not argued—either before the District Court or on

17   appeal—that the 24‐month probationary period and relevant extension had in


                                              4
 1   fact expired prior to her termination. We therefore affirm, on this alternative

 2   ground, the District Court’s decision to dismiss Castro’s due process and section

 3   75 claims.2 With respect to Castro’s arguments under Rule 5.2.7(c) of the

 4   Personnel Rules of the City of New York, we affirm substantially for the reasons

 5   stated by the District Court.

 6         Castro further argues that, even if she had been on probation, she was

 7   entitled to a hearing under In re Perry, 374 N.Y.S.2d 850 (4th Dep’t 1975), because

 8   the allegations of misconduct leading to her termination affected her reputation.

 9   But Perry involved a termination “predicated upon considerations reaching

10   beyond the scope of [the probationary employee’s] job performance,” and the

11   hearing in that case was required on that ground. Id. at 855. Castro’s

12   termination was based entirely on allegations of job‐related misconduct.

13         Castro’s argument that her termination was void because the termination

14   letter was not issued directly by the Commissioner of Correction has previously




     2 Because we affirm on this ground, we need not consider the District Court’s
     alternative holding that, even if Castro had a protected property interest in continued
     employment, the availability of a post‐deprivation hearing through Article 78
     proceedings satisfied due process.

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1   been considered and rejected by New York State courts. See, e.g., In re

2   Gagedeen, 96 N.Y.S.3d 349, 351–52 (2d Dep’t 2019); In re Meighan, 77 N.Y.S.3d

3   871, 872 (2d Dep’t 2018).

4         We have considered Castro’s remaining arguments and conclude that they

5   are without merit. For the foregoing reasons, the judgment of the District Court

6   is AFFIRMED.


7                                        FOR THE COURT:
8                                        Catherine O=Hagan Wolfe, Clerk of Court




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