COTTON v. McCARTHY

Citation Codes

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Docket Number

No. 09-4507-pr.

Attorney(S)

Maurice Cotton, pro se, Buffalo, NY. Carmen J. Gentile, Assistant Corporation Counsel (David Rodriguez, Acting Corporation Counsel, of counsel), City of Buffalo Department of Law, Buffalo, NY, for Defendants-Appellees.

Judges

Roger Jeffrey Miner
Jose Alberto Cabranes
Richard C. Wesley

Acts

Judiciary And Judicial Procedure — Courts Of Appeals — Jurisdiction And Venue — Final Decisions Of District Courts
The Public Health And Welfare — Civil Rights — Generally — Civil Action For Deprivation Of Rights

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Maurice COTTON, Plaintiff-Appellant, v. Erin McCARTHY, Thomas Beyers, Christopher Sterlace, City of Buffalo, Defendants-Cross-Claimants-Appellees, Boyd Lee Dunlop, Defendant-Cross-Defendant. The Clerk of Court is directed to amend the official caption to conform to the listing of the parties stated abo

SUMMARY ORDER

Plaintiff-appellant Maurice Cotton ("plaintiff or "Cotton"), pro se, appeals from a judgment of the District Court, dismissing his claims brought pursuant to 42 U.S.C., § 1983 and state law against defendants-appellees Erin McCarthy, Thomas Beyers, Christopher Sterlace, and the City of Buffalo ("defendants"). We assume the parties' familiarity with the factual and procedural history of the case.

Generally, a district court's dismissal of some, but not all, defendants is not an appealable order under 28 U.S.C. § 1291 unless the court certifies an appeal from that order. See Fed.R.Civ.P. 54(b); In re Chateaugay Corp., 928 F.2d 63, 64 (2d Cir. 1991). We have recognized, however, that when the court has dismissed all of the served defendants, and only unserved defendants "remain," there is no reason to preclude the immediate and automatic entry of a final judgment, as there is no basis for believing that there will be any further adjudications in the action. See Leonhard v. United States, 633 F.2d 599, 608 (2d Cir. 1980). Here, there was confusion in the record regarding defendant Boyd Dunlop's address, and at least one show cause order was returned to the District Court as undeliverable. Moreover, Dunlop did not appear, which, together with the returned order, led the District Court to conclude that he may not have been served and to decline to enter a default judgment against him. Therefore, as "there is no basis for believing there will be any further adjudications" in this case, we will treat the judgment entered as final and appealable. See id.

Turning to the merits, we find no error in the District Court's comprehensive analysis of plaintiffs claims, and we agree that the allegations in plaintiffs complaint were insufficient to state a claim under 42 U.S.C. § 1983. See Fed.R.Civ.P. 12(b)(6). Accordingly, we affirm the judgment of the District Court substantially for the reasons stated in its thorough Decision and Order dated September 28, 2009. See Cotton v. McCarthy, No. 06-CV-477S, 2009 WL 3165606 (W.D.N.Y. Sept. 28, 2009).

CONCLUSION

We have considered all of plaintiffs arguments and find them to be without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.

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