Iwachiw v. Department of Finance

110 F. App'x 201

• Court: Court of Appeals for the Second Circuit
• Decided: October 14, 2004
• Docket: No. 04-0770
• Status: Published

Opinion

SUMMARY ORDER

In August 2002, plaintiff Walter N. Iwachiw, acting pro se, filed a complaint alleging various statutory and constitutional violations in connection with the towing of his vehicle. The District Court dismissed the complaint without prejudice. Iwachiw v. New York City Dep’t of Fin., No. 02-CV-4766 (E.D.N.Y. Oct. 5, 2002). In November 2002, plaintiff filed an amended complaint, which contained several new claims. The District Court dismissed the amended complaint in its entirety with prejudice. Iwachiw v. New York City Dep’t of Fin., No. 02-CV-4766 (E.D.N.Y. Jan. 31, 2004).

Although we agree with the District Court’s reasons for dismissing plaintiffs amended complaint, we conclude that plaintiff should be granted leave to amend those claims that he raised for the first time in his November 2002 amended complaint and that “cannot be termed frivolous on their face.” Salahuddin v. Cuomo, 861 F.2d 40, 43 (2d Cir.1988). We therefore vacate the judgment and remand to the District Court with instructions to enter an order granting plaintiff leave to file an additional amended complaint with respect to claims (1) against a municipal defendant; (2) arising from an alleged due process violation; and (3) raised by plaintiff for the first time in his November 2002 amended complaint. In all other respects, we affirm the District Court’s dismissal of plaintiffs amended complaint with prejudice.

We also note that the filing sanction imposed upon plaintiff by the District Court in Iwachiw v. New York State Dep’t of Motor Vehicles, No. 02-CV-6699 (E.D.N.Y. Feb. 11, 2004), is not a subject of the instant appeal.

The judgment of the District Court is hereby AFFIRMED in part, VACATED in part, and the cause is REMANDED for further proceedings consistent with this order.