Levy v. Cohen

Second Circuit

Levy v. Cohen

439 F. App'x 30

CourtCourt of Appeals for the Second Circuit

DecidedSeptember 1, 2011

Docket10-4167-cv

StatusUnpublished

Cited by2 cases

This text of 439 F. App'x 30 (Levy v. Cohen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Levy v. Cohen, 439 F. App'x 30 (2d Cir. 2011).

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Opinion

SUMMARY ORDER

Plaintiff-Appellant Edward Levy appeals pro se from the district court’s judgment granting the Defendants-Appellees’ motion to dismiss his 42 U.S.C. § 1983 complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). We review the dismissal of a complaint under either subsection of Rule 12 de novo, construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002); See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). We assume the parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal.

Levy alleges that the Defendants-Appellees violated his civil rights under § 1983 through various actions related to the revocation of his license to practice dentistry in 2007. In his appellate brief, he argues, inter alia, that the pre-deprivation proceeding conducted by the New York State Board of Regents, which is entrusted with the statutory authority to revoke a dentist’s license under certain circumstances, see New York State Education Law § 6510, was inadequate for a number of alleged reasons, including that it arose out of a conspiracy to cover-up the conversion of Medicaid payments he was owed for his work as a dentist and subsequent payment of those funds into then-Attorney General Eliot Spitzer’s gubernatorial campaign fund. Levy also argues that he was not required to exhaust his remedies available under state law before he was able to bring a civil rights claim for violation of his due process rights. In this regard, Levy misses the point. The predeprivation proceedings available to him— which included notice and an administrative hearing at which Levy was represented by an attorney, presented evidence, and called witnesses — combined with the availability of an adequate post-deprivation remedy through New York’s Article 78 proceeding, constituted sufficient process *32 to satisfy the Due Process Clause of the Fourteenth Amendment. See Harris v. Mills, 572 F.3d 66, 76 (2d Cir.2009) (denial by state agency of physician’s petition to reinstate his revoked medical license did not deprive physician of due process, where physician was given adequate notice and opportunity to be heard before his petition for reinstatement was denied, and an adequate post-deprivation remedy was available through Article 78 proceedings); Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458, 466 (2d Cir.2006) (holding that pre-deprivation process was constitutionally adequate where the plaintiff received notice and was represented at a pre-deprivation hearing by an attorney).

In addition, the district court properly dismissed Levy’s damages claims against the New York State Attorney General’s Office, because, contrary to Levy’s contention on appeal, the Eleventh Amendment provides a state and its agencies with immunity from claims for damages in federal court where, as here, the State has not given consent to be sued. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

We have reviewed Levy’s remaining arguments on appeal and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.

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SUMMARY ORDER

Plaintiff-Appellant Edward Levy appeals pro se from the district court’s judgment granting the Defendants-Appellees’ motion to dismiss his 42 U.S.C. § 1983 complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). We review the dismissal of a complaint under either subsection of Rule 12 de novo, construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002); See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). We assume the parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal.

Levy alleges that the Defendants-Appellees violated his civil rights under § 1983 through various actions related to the revocation of his license to practice dentistry in 2007. In his appellate brief, he argues, inter alia, that the pre-deprivation proceeding conducted by the New York State Board of Regents, which is entrusted with the statutory authority to revoke a dentist’s license under certain circumstances, see New York State Education Law § 6510, was inadequate for a number of alleged reasons, including that it arose out of a conspiracy to cover-up the conversion of Medicaid payments he was owed for his work as a dentist and subsequent payment of those funds into then-Attorney General Eliot Spitzer’s gubernatorial campaign fund. Levy also argues that he was not required to exhaust his remedies available under state law before he was able to bring a civil rights claim for violation of his due process rights. In this regard, Levy misses the point. The predeprivation proceedings available to him— which included notice and an administrative hearing at which Levy was represented by an attorney, presented evidence, and called witnesses — combined with the availability of an adequate post-deprivation remedy through New York’s Article 78 proceeding, constituted sufficient process *32 to satisfy the Due Process Clause of the Fourteenth Amendment. See Harris v. Mills, 572 F.3d 66, 76 (2d Cir.2009) (denial by state agency of physician’s petition to reinstate his revoked medical license did not deprive physician of due process, where physician was given adequate notice and opportunity to be heard before his petition for reinstatement was denied, and an adequate post-deprivation remedy was available through Article 78 proceedings); Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458, 466 (2d Cir.2006) (holding that pre-deprivation process was constitutionally adequate where the plaintiff received notice and was represented at a pre-deprivation hearing by an attorney).

In addition, the district court properly dismissed Levy’s damages claims against the New York State Attorney General’s Office, because, contrary to Levy’s contention on appeal, the Eleventh Amendment provides a state and its agencies with immunity from claims for damages in federal court where, as here, the State has not given consent to be sued. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

We have reviewed Levy’s remaining arguments on appeal and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.

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439 F. App'x 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levy-v-cohen-ca2-2011.

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