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Defilippo v. N.Y. State Unified Court

United States Court of Appeals, Second Circuit
Apr 19, 2007
223 F. App'x 45 (2d Cir. 2007)

Summary

holding that pro se plaintiff could not raise a due process claim for the first time in his opposition to defendants' summary judgment motion

Summary of this case from Walker v. Raja

Opinion

No. 06-1561-cv.

April 19, 2007.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Gary R. DeFilippo, Brooklyn, NY, pro se.

Richard Dealing, Assistant Solicitor General (Eliot Spitzer, Attorney General of the State of New York, on the brief, Michael S. Belohlavek, Senior Counsel, Division of Appeals and Opinions, of counsel), New York State Attorney General's Office, New York, NY, for Appellees.

PRESENT: THOMAS J. MESKILL, JOSE A. CABRANES, PETER W. HALL, Circuit Judges.


SUMMARY ORDER

Plaintiff Gary R. DeFilippo appeals a decision of the District Court denying his motion for summary judgment and granting defendants' motion for summary judgment. DeFilippo's second amended complaint, brought under 42 U.S.C. § 1983, set forth one cause of action alleging violations of his First Amendment rights. The decision under review found that DeFilippo's First Amendment claim was without merit and barred DeFilippo from raising a due process claim for the first time in his response to defendants' motion for summary judgment. We assume the parties' familiarity with the facts, the issues on appeal and the procedural history.

Upon a review of the record, and substantially for the reasons set forth in the decision of the District Court, we conclude that the District Court did not err in denying DeFilippo's motion for summary judgment and granting defendants' motion for summary judgment. DeFilippo's Equal Employment Opportunity ("EEO") complaints were not on a matter of public concern. See, e.g., Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir. 1993) (plaintiffs speech not constitutionally protected where it was "motivated by and dealt with her individual employment situation"). Assuming arguendo that DeFilippo's March 15, 1996 Unusual Occurrence Report was on a matter of public concern, it is nonetheless barred under the rule set forth in Garcetti v. Ceballos, ___ U.S. ___, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), which was decided after the District Court issued its opinion. As DeFilippo conceded in his deposition, the report was prepared pursuant to DeFilippo's official job duties as a court officer. Accordingly, the report was not protected by the First Amendment. See Garcetti 126 S.Ct. at 1960 ("[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."). We also conclude that the District Court did not abuse its discretion in prohibiting DeFilippo from raising a due process claim for the first time in his opposition to defendants' summary judgment motion.

We have considered all of plaintiffs arguments on appeal and find them to be without merit. Accordingly, we hereby AFFIRM the judgment of the District Court.


Summaries of

Defilippo v. N.Y. State Unified Court

United States Court of Appeals, Second Circuit
Apr 19, 2007
223 F. App'x 45 (2d Cir. 2007)

holding that pro se plaintiff could not raise a due process claim for the first time in his opposition to defendants' summary judgment motion

Summary of this case from Walker v. Raja

In DeFilippo, the Second Circuit summarily affirmed an order of Judge Garaufis of this District granting summary judgment in favor of the defendant where the plaintiff conceded in a deposition that the Unusual Occurrence Report underlying the plaintiff's First Amendment retaliation claim was prepared pursuant to his duties as a court officer.

Summary of this case from Weintraub v. Board of Education of City of New York

In DeFilippo, the Second Circuit summarily affirmed an order of Judge Garaufis of this District granting summary judgment in favor of the defendant where the plaintiff conceded in a deposition that the Unusual Occurrence Report underlying the plaintiff's First Amendment retaliation claim was prepared pursuant to his duties as a court officer.

Summary of this case from Weintraub v. Board of Education of City of New York

In DeFilippo v. N.Y. State Unified Court System, 223 Fed.Appx. 45 (2d Cir. 2007), the Second Circuit Court of Appeals affirmed a summary judgment granted in favor of the defendants in a First Amendment retaliation case brought by a court officer against his former state employer.

Summary of this case from Skaats v. State
Case details for

Defilippo v. N.Y. State Unified Court

Case Details

Full title:Gary R. DEFILIPPO, Plaintiff-Appellant, v. NEW YORK STATE UNIFIED COURT…

Court:United States Court of Appeals, Second Circuit

Date published: Apr 19, 2007

Citations

223 F. App'x 45 (2d Cir. 2007)

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