20-761-cv Salu v. Miranda
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of October, two thousand twenty.
PRESENT: DENNIS JACOBS, PIERRE N. LEVAL, JOSEPH F. BIANCO, Circuit Judges.
ROTIMI SALU, GERARD M. LYNCH,
Plaintiffs-Appellants,
v. No. 20-761
DENISE MIRANDA, NEW YORK STATE JUSTICE CENTER, ELIZABETH M. DEVANE, DAVID MOLIK, MARY B. ROCCO, LOUIS P. RENZI, WESTCHESTER MEDICAL CENTER HEALTH NETWORK, WESTCHESTER COUNTY HEALTH CARE CORPORATION,
Defendants-Appellees,
DIAMOND HEALTHCARE CORPORATION, DENISE DAVIS,
Defendants. For Plaintiffs-Appellants: MICHAEL D. DIEDERICH, JR., Diederich Law, Stony Point, NY.
For Defendants-Appellees Denise Miranda, MARK S. GRUBE, Assistant Solicitor (Barbara New York State Justice Center, Elizabeth D. Underwood, Solicitor General; Anisha S. M. Devane, David Molik, Mary B. Rocco, Dasgupta, Deputy Solicitor General; on the and Louis P. Renzi: brief), for Letitia James, Attorney General for the State of New York, New York, NY.
For Defendants-Appellees Westchester BRIAN J. CLARK (Allison B. Gotfried, on the Medical Center Health Network and brief),Venable LLP, New York, NY. Westchester County Health Care Corporation:
Appeal from a judgment of the United States District Court for the Southern District of
New York (Karas, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court is AFFIRMED.
Plaintiffs-appellants Rotimi Salu and Gerard Lynch (collectively, “plaintiffs”) appeal from
the February 5, 2020 judgment of the district court, dismissing their claims alleging employment
discrimination based on race and due process and equal protection violations. Plaintiffs filed this
lawsuit against Westchester Medical Center Health Network and Westchester County Health Care
Corporation (collectively, “the WMC defendants”), as well as the New York State Justice Center
for the Protection of People with Special Needs (“the Justice Center”), Denise Miranda, Elizabeth
M. Devane, David Molik, Mary B. Rocco, and Louis P. Renzi (collectively, “the Justice Center
defendants” and together with the WMC defendants, “defendants”), seeking declaratory and
injunctive relief, monetary damages, and punitive damages under 42 U.S.C. §§ 1981, 1983, 1985,
and 1986. Plaintiffs further requested that the district court exercise supplemental jurisdiction over
certain state law claims and related proceedings pursuant to Article 78 of the New York Civil
Practice Law and Rules, N.Y. C.P.L.R. § 7801 et seq. Because plaintiffs have waived many of
2 their originally pled claims on appeal (referenced in the margin below), we consider only: Salu’s
race discrimination claim against the WMC defendants, and Salu and Lynch’s due process and
equal protection claims against the Justice Center defendants. 1
We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6) or
Rule 12(b)(1) of the Federal Rules of Civil Procedure. Smith v. Hogan, 794 F.3d 249, 253 (2d Cir.
2015). In doing so, we accept all factual allegations in the complaint as true and “draw all
reasonable inferences in favor of the plaintiff.” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d
229, 237 (2d Cir. 2007). We review a district court’s decision to exercise supplemental jurisdiction
over state law claims for abuse of discretion. See Valencia ex rel. Franco v. Lee, 316 F.3d 299,
305 (2d Cir. 2003). We assume the parties’ familiarity with the facts and the procedural history,
which we reference only as necessary to explain our decision to affirm. 2
I. Salu’s § 1981 Race Discrimination Claims Against the WMC Defendants
Salu is an African American who worked as a patient care technician in the adolescent
psychiatric department of the WMC. He alleges that he was jointly employed by WMC and
1 Plaintiffs raised a number of claims before the district court, many of which they waived on appeal. See Littlejohn v. City of New York, 795 F.3d 297, 313 n.12 (2d Cir. 2015) (declining to consider an issue addressed by the district court that was not argued on appeal). This includes Lynch’s claims against the WMC defendants for race discrimination, as well as Salu’s due process, equal protection, and conspiracy claims under 42 U.S.C. §§ 1983, 1985, and 1986 against the WMC defendants. See Maraschiello v. City of Buffalo Police Dep’t, 709 F.3d 87, 92 (2d Cir. 2013) (determining that “three sentences of unsupported argument regarding” the plaintiff’s claim is insufficient to trigger our examination). Moreover, plaintiffs concede that they “are no longer pursuing a § 1985 conspiracy claim.” Plaintiffs Reply Br. at 24 n.17. Thus, because “a § 1986 claim must be predicated on a valid § 1985 claim,” Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 2000) (quoting Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993)), plaintiffs’ § 1986 claim is waived as well. 2 As a threshold matter, defendants object to the Court’s consideration of Addenda A and B that were attached to plaintiffs’ brief on appeal. Addendum A is correspondence that Salu’s attorney had with the Justice Center. Addendum B appears to be the attorney’s self-created list of Justice Center decisions between 2016 and 2018. We need not address defendants’ argument because consideration of plaintiffs’ Addenda are immaterial to our conclusion that their amended complaint was properly dismissed by the district court.
3 Diamond Healthcare Corporation, which is a temporary staffing agency. As set forth in the
amended complaint, on or about May 2, 2016, Salu was supervising a patient (“Patient 1”) in the
adolescent psychiatric department when he encountered a second patient (“Patient 2”) with whom
he then became embroiled in a physical altercation, causing him to leave Patient 1 unsupervised.
The WMC defendants viewed Salu’s abandonment of Patient 1 to be a violation of their written
“one-on-one supervision” policy because he negligently failed to keep Patient 1 in full view at all
times. Am. Compl. ¶¶ 50–51. Salu concedes in the amended complaint that he left Patient 1
unsupervised when he was “enticed” into Patient 2’s hospital room, but claims his failure to return
to supervise Patient 1 was a result of being “viciously attacked” when he went into Patient 2’s
room. Am. Compl. ¶ 59. Patient 2 also accused Salu of assault.
New York State law requires staff members at healthcare facilities serving vulnerable
individuals to report any conduct they become aware of that could constitute abuse or neglect of a
patient to the Justice Center. N.Y. Soc. Serv. Law § 491. The Justice Center’s core duties include
maintaining a statewide central register to track and investigate such allegations of abuse and
neglect by individuals who are responsible for the care of vulnerable persons. N.Y. Exec. Law
§ 552(1); N.Y. Soc. Serv. Law § 492. The WMC defendants referred the allegation of neglect of
Patient 1 and abuse with respect to Patient 2 to the Justice Center for investigation pursuant to a
mandatory reporting requirement, and suspended Salu pending the investigation. The Justice
Center determined the report of neglect of Patient 1 to be “substantiated,” and Salu’s employment
at WMC was thereafter terminated. Am. Compl. ¶ 62.
Salu requested that the report be amended to reflect that he did not commit neglect. After
a hearing before an Administrative Law Judge (“ALJ”), the Justice Center issued a final
determination that the allegation of neglect of Patient 1 was substantiated against Salu based upon,
4 among other findings: (1) “[a]t the time of the alleged neglect, [Salu] was assigned 1:1 constant
observation of [Patient 1] due to the risk of self-mutilation and verbalized suicidal ideation,” Joint
App’x at 113; and (2) “[t]he record established, and [Salu] admitted in his police interview and in
his testimony, that while assigned 1:1 constant observation of [Patient 1], [Salu] momentarily left
[Patient 1] unsupervised in the hallway to address [Patient 2],” Joint App’x at 116. 3
After the allegation of neglect of Patient 1 was substantiated, Salu alleges that Denise
Davis, Director of Nursing at the WMC, informed Diamond Healthcare Corporation that she did
not want Salu to continue to work at the WMC, and that Salu was subsequently terminated from
employment by Diamond. Salu asserts that the WMC defendants terminated his assignment at
WMC due to his race, and that the district court erred in concluding that he failed to establish a
plausible claim for race discrimination against the WMC defendants.
As an initial matter, Salu improperly asserts a claim against the WMC defendants under 42
U.S.C. § 1981. “[T]he express cause of action for damages created by § 1983 constitutes the
exclusive federal remedy for violation of the rights guaranteed in § 1981 by state [actors].” Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989). Salu concedes that the WMC defendants are
state actors, yet he has inexplicably abandoned his § 1983 claim by failing to raise it in his appellate
brief. In any event, even assuming arguendo that we construe Salu’s § 1981 claim as a claim
under § 1983, see Duplan v. City of New York, 888 F.3d 612, 621 (2d Cir. 2018), the district court
correctly concluded that the allegations in the amended complaint fail to withstand a motion to
dismiss.
Claims for race discrimination under § 1983 are analyzed under the burden-shifting
framework outlined in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), which –
3 The allegation regarding Patient 2’s assault was determined to be unsubstantiated. 5 at step one – requires a plaintiff prove the following to establish a prima facie case: (1) he is a
member of a protected class; (2) he was qualified for his position; (3) he suffered an adverse
employment action; and (4) his treatment occurred under circumstances giving rise to an inference
of discrimination. See Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015) (explaining
that the McDonnell Douglas framework applies to Title VII, § 1981, and § 1983 claims). At the
first stage under McDonnell Douglas on a motion to dismiss, prior to the employer’s giving of its
reason for its action, the plaintiff’s satisfaction of the prima facie requirements is facilitated by a
temporary presumption in the plaintiff’s favor, so that the plaintiff “need only give plausible
support to a minimal inference of discriminatory motivation.” See Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015) (quoting Littlejohn, 795 F.3d at 311). Nonetheless, in
attempting to satisfy this pleading standard, “[i]t is well settled in this Circuit that a complaint
consisting of nothing more than naked assertions, and setting forth no facts upon which a court
could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6).” Martin
v. N.Y.S. Dep’t of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).
Here, the WMC defendants concede, for purposes of this appeal, that Salu has satisfied the
first three prongs of a prima facie case of race discrimination. Thus, the issue on appeal is whether
the amended complaint contains non-conclusory allegations sufficient to support a plausible
inference of discriminatory motivation by the WMC defendants in Salu’s termination. We agree
with the district court that the amended complaint fails to satisfy the plausibility requirement.
More specifically, Salu’s discrimination claim rests on his belief that Davis, as the Director
of Nursing, harbored racial animus and was responsible for Diamond’s decision to terminate him
after he “was determined to be guilty of statutory neglect by the Justice Center.” Am. Compl.
¶ 99. That critical allegation regarding Davis’s purported decision-making role, however, which
6 is necessary to render his race discrimination claim plausible against her and the WMC defendants,
has no factual basis to support it, but rather is simply stated in a conclusory fashion based upon
“information and belief.” See Am. Compl. ¶¶ 69–70 (“Upon information and belief, the racially
biased decision-maker was the WMC Director of Nursing, Denise Davis, RN. Upon information
and belief, Director Davis, as a WMC policy-maker and decision-maker, informed Diamond that
she did not want Mr. Salu to continue working at WMC. Diamond had no choice but to carry out
Director Davis’ command.” (emphases added)). As the district court correctly held, these
conclusory assertions repeatedly made “upon information and belief” are insufficient to provide a
basis to conclude that the race discrimination claim is plausible. See Citizens United v.
Schneiderman, 882 F.3d 374, 384 (2d Cir. 2018) (“A litigant cannot merely plop ‘upon information
and belief’ in front of a conclusory allegation and thereby render it non-conclusory.”).
Moreover, the implausible nature of Salu’s central claim – namely, that the allegedly biased
Davis was responsible for his termination – is demonstrated by Salu’s own concession in the
amended complaint that he was not terminated until the Justice Center substantiated the report of
neglect against him. See Am. Compl. ¶ 62 (“Mr. Salu was thereafter eventually terminated by his
employer after the Justice Center ‘substantiated’ . . . that he took his eyes off the patient he was
supervising, viewing this as amounting to a neglect under N.Y.S. statute.”); see also Am. Compl.
¶ 107 (“As a result, Mr. Salu was adjudicated by the Justice Center as being guilty of ‘category 3
neglect,’ which adjudication justified his job termination . . . .”). His disagreement with the Justice
Center’s conclusion does not substantiate, even to a minimal degree, his claims of discrimination
against the WMC defendants.
In sum, the allegations fail to create a plausible inference that Salu was terminated based
upon intentional race discrimination by Davis or anyone else at WMC. Accordingly, we conclude
7 that the district court properly dismissed Salu’s race discrimination claims against the WMC
defendants.
II. Plaintiffs’ Claims Against the Justice Center Defendants
Both plaintiffs Salu and Lynch brought claims against the Justice Center defendants based
upon their allegation that the Justice Center conspires with private employers to violate the rights
of non-white healthcare workers. Like Salu, Lynch was terminated from his job at WMC. In
particular, Lynch was found by the Justice Center to have committed sexual misconduct towards
a female patient at WMC. Both plaintiffs assert that the Justice Center’s determination that they
had committed acts constituting neglect and/or abuse of patients entrusted to their care was based
upon racial bias and unconstitutional procedures, and led to the wrongful termination of their
employment at WMC. As set forth below, there are multiple grounds to affirm the district court’s
dismissal of all claims against the Justice Center defendants.
A. Eleventh Amendment Immunity
The district court concluded that the Eleventh Amendment barred plaintiffs from
proceeding in federal court on their claims for damages against the Justice Center and its officers
in their official capacities. See V.A. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 254
(2011) (finding that the Eleventh Amendment bars damages actions asserted against a State
“absent waiver or valid abrogation” of the State’s sovereign immunity). It is well settled that suits
against state agencies and state officers acting in their official capacities are functionally equivalent
to suits against the State. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100–02 (1984).
Here, plaintiffs seek monetary relief from a state agency – the Justice Center, and its
officers in their official capacities. But New York has not waived sovereign immunity in federal
court for damages claims. Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 39–40 (2d
8 Cir. 1977). In addition, Congress did not abrogate state sovereign immunity when enacting the
statutes that form the basis for the federal claims in plaintiffs’ amended complaint. See Quern v.
Jordan, 440 U.S. 332, 338–45 (1979) (§ 1983); Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d
Cir. 1990) (§ 1983); Keitt v. New York City, 882 F. Supp. 2d 412, 424 (S.D.N.Y. 2011) (§§ 1983,
1985, and 1986).
Accordingly, we conclude that the district court correctly determined that the Eleventh
Amendment bars plaintiffs from proceeding in federal court against the Justice Center and its
officers in their official capacities for damages. 4
B. Judicial Immunity
Judges generally receive absolute immunity from “suits for money damages for their
judicial actions,” Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009) and from suits for injunctive
relief under § 1983 with certain exceptions not relevant here, Montero v. Travis, 171 F.3d 757,
761 (2d Cir. 1999).
Judicial immunity applies if (1) “the relevant action is judicial in nature” and (2) the
defendant “had jurisdiction over the subject matter before him.” Huminski v. Corsones, 396 F.3d
4 Plaintiffs also seek to remedy the “systemic and ongoing” violations of the Justice Center, Plaintiffs Br. at 57. Specifically, plaintiffs argue purported future harms to third parties, which would theoretically overcome the Eleventh Amendment hurdle, given that state officers may properly be sued in their official capacities for prospective relief under the doctrine of Ex parte Young, 209 U.S. 123 (1908). However, this argument raises another insurmountable hurdle for plaintiffs in this particular case – namely, the prudential standing requirements, which prohibit “plaintiffs from asserting the rights of third parties.” Montesa v. Schwartz, 836 F.3d 176, 195 (2d Cir. 2016). Here, plaintiffs are unable to establish that the relevant third parties, other African-American healthcare workers, are hindered or cannot assert their own rights. See Keepers, Inc. v. City of Milford, 807 F.3d 24, 39 (2d Cir. 2015) (plaintiff bears the burden of establishing prudential standing). Indeed, when the Justice Center makes a final determination that is unfavorable to a healthcare worker, that healthcare worker can pursue judicial review through an Article 78 proceeding. Thus, plaintiffs have no standing to seek injunctive relief to purportedly prevent future harm to third parties. Plaintiffs also argue that they have standing to seek injunctive relief because there is a “real possibility” that they may once again be accused of neglect or abuse and subjected to the Justice Center’s procedures. Plaintiffs Reply Br. at 19. But plaintiffs allege no probable threat that they will again face complaints of abuse or neglect and be subject to a Justice Center adjudication. See City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). 9 53, 75 (2d Cir. 2005) (quotation marks omitted). Only allegations that a defendant acted “in the
clear absence of all jurisdiction” will overcome the bar of judicial immunity. Stump v. Sparkman,
435 U.S. 349, 356–57 (1978) (quotation marks omitted).
Here, judicial immunity bars plaintiffs’ claims against the ALJ defendants, Elizabeth
Devane, David Molik, Mary Rocco, and Louis Renzi. Plaintiffs’ only interactions with the ALJ
defendants were in their judicial capacities, as set forth by New York law. For instance, New York
law authorizes ALJs to “determine whether the findings of [a Justice Center] report should be
amended on the grounds that [the findings] are inaccurate or inconsistent” with the law. N.Y. Soc.
Serv. Law § 494(1)(a); 14 N.Y.C.R.R. § 700.6(a). ALJs Renzi and Rocco oversaw plaintiffs’
administrative hearings, and thereafter issued reports and recommendations as to whether the
findings against plaintiffs should be amended. ALJs Devane and Molik reviewed those reports
and recommendations and issued final determinations. We conclude that, for purposes of this
appeal, such actions fall squarely within the core duties “normally performed by a judge.” Bliven,
579 F.3d at 209–10 (quotation marks omitted); see also Butz v. Economou, 438 U.S. 478, 513
(1978) (“[T]he role of the modern federal hearing examiner or administrative law judge . . . is
‘functionally comparable’ to that of a judge.”).
Therefore, the ALJ defendants are entitled to judicial immunity as their actions were
judicial in nature, and they had jurisdiction over the subject matter before them pursuant to New
York law. See Stump, 435 U.S. at 356–57 (quotation marks omitted). Plaintiffs’ allegations of
bias or misconduct are not sufficient to strip these defendants of their immunity. See Tucker v.
Outwater, 118 F.3d 930, 932 (2d Cir. 1997) (“The cloak of [judicial] immunity is not pierced by
allegations of bad faith or malice.”). 5
5 As to Denise Miranda, the Justice Center’s Executive Director, the district court held that she had no personal involvement in plaintiffs’ cases, and thus did not reach whether she was entitled to qualified 10 III. Plaintiffs’ State Law Claims
Finally, we conclude that the district court did not abuse its discretion when it exercised
supplemental jurisdiction to dismiss certain state law claims, and declined to exercise its
supplemental jurisdiction over the Article 78 claim.
Section 1367(a) of Title 28 grants federal courts supplemental jurisdiction over state law
claims that are part of the same case or controversy as the asserted federal claims. See 28 U.S.C.
§ 1367(a). We review a district court’s decision to exercise supplemental jurisdiction over state-
law claims for abuse of discretion, see Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122
(2d Cir. 2006), “considering whether judicial economy, convenience, fairness and comity require
a different result,” Finz v. Schlesinger, 957 F.2d 78, 84 (2d Cir. 1992) (citing Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
Plaintiffs’ state law causes of action, such as the New York State Human Rights Law
(“NYSHRL”) claim, are analytically identical to some of Salu’s federal claims (namely his § 1981
claim – which we construe as a § 1983 claim – and his equal protection claim), and feature the
same allegations of discriminatory conduct as those underlying his federal discrimination,
constitutional, and due process claims. See Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010)
(holding that discrimination claims under the NYSHRL are subject to the same framework as the
related federal claims). Thus, the district court did not err by exercising supplemental jurisdiction
and dismissing these claims. 6
immunity. We agree with the district court’s dismissal of plaintiffs’ claims against Miranda based upon a failure to allege any non-conclusory allegations of Miranda’s personal involvement in the final determination of plaintiffs’ cases at the Justice Center, and we therefore also decline to address the qualified immunity issue. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (requiring allegation of direct personal involvement to state a § 1983 claim against a supervisory official). 6 To the extent that plaintiffs raised their claims arising under the New York State Constitution on appeal, we conclude that the district court properly exercised supplemental jurisdiction over those claims as well, 11 Finally, as to the Article 78 claim, the district court did not abuse its discretion by declining
to exercise jurisdiction. See N.Y. C.P.L.R. §§ 7801, 7804(b); see also Libertarian Party of Erie
Cnty. v. Cuomo, 970 F.3d 106, 121 (2d Cir. 2020).
In sum, the district court did not abuse its discretion by dismissing some state law claims
and declining to exercise supplemental jurisdiction over the Article 78 claim.
*** We have considered all of plaintiffs’ remaining 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
and plaintiffs have waived any arguments regarding the merits of those claims that are different from their arguments based on § 1983. See Allen v. Antal, 665 F. App’x 9, 13 (2d Cir. 2016) (“The New York State Constitution provides a private right of action where remedies are otherwise unavailable at common law or under § 1983.”). 12