18‐722‐cv
`Patterson v. City of New York et al.
`
`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 ASUMMARY ORDER@).
` A PARTY CITING TO 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 19th day of March, two thousand nineteen.
`
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`PRESENT: RICHARD C. WESLEY,
`
`RAYMOND J. LOHIER, JR.,
`
`RICHARD J. SULLIVAN,
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`
`
`Circuit Judges.
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`TAJ PATTERSON,
`
`Plaintiff‐Appellant,
`
`v.
`
`CITY OF NEW YORK, POLICE OFFICER
`RODRIGO FERNANDEZ, SERGEANT IVAN
`FURDA, SERGEANT JOSEPH ZAIKOWSKI,
`WILLIAMSBURG SAFETY PATROL, INC.,
`SHMIRA VOLUNTEER PATROL CORP.,
`ABRAHAM WINKLER, AHARON
`HOLLENDER, MAYER HERSKOVIC, JOSEPH
`
`No. 18‐722‐cv
`
`
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`Patterson v. City of New York et al.
`
`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 ASUMMARY ORDER@).
` A PARTY CITING TO 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 19th day of March, two thousand nineteen.
`
`
`
`
`
`
`
`
`
`PRESENT: RICHARD C. WESLEY,
`
`RAYMOND J. LOHIER, JR.,
`
`RICHARD J. SULLIVAN,
`
`
`
`Circuit Judges.
`‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
`TAJ PATTERSON,
`
`Plaintiff‐Appellant,
`
`v.
`
`CITY OF NEW YORK, POLICE OFFICER
`RODRIGO FERNANDEZ, SERGEANT IVAN
`FURDA, SERGEANT JOSEPH ZAIKOWSKI,
`WILLIAMSBURG SAFETY PATROL, INC.,
`SHMIRA VOLUNTEER PATROL CORP.,
`ABRAHAM WINKLER, AHARON
`HOLLENDER, MAYER HERSKOVIC, JOSEPH
`
`No. 18‐722‐cv
`
`
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`FRIED, PINCHAS BRAVER, YOELI ITZKOWITZ,
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`
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`Defendants‐Appellees,
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`JOHN DOE, #1‐10,
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`
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`Defendant.
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`FOR PLAINTIFF‐APPELLANT:
`MATTHEW A. WARING, Mayer
`Brown LLP, Washington, DC
`(Michael B. Kimberly, Mayer
`Brown LLP, Washington, DC,
`Andrew B. Stoll, Stoll,
`Glickman & Bellina LLP,
`Brooklyn, NY, on the brief).
`
`DANIEL MATZA‐BROWN
`FOR DEFENDANTS‐APPELLEES
`CITY OF NEW YORK, POLICE OFFICER (Claude S. Platton, on the brief),
`RODRIGO FERNANDEZ, SERGEANT
`Assistant Corporation
`IVAN FURDA, and SERGEANT JOSEPH Counsel, for Zachary W.
`ZAIKOWSKI:
`Carter, Corporation Counsel
`
`of the City of New York, New
`York, NY.
`
`
`EDWARD RODRÍGUEZ, Law
`FOR DEFENDANTS‐APPELLEES
`PINCHAS BRAVER and JOSEPH FRIED: Office of Edward Rodríguez,
`PLLC, New York, NY.
`
`
`
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`Appeal from a judgment of the United States District Court for the Eastern
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`District of New York (Nicholas G. Garaufis, Judge).
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`UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
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`AND DECREED that the judgment of the District Court is AFFIRMED.
`
`
`
`Taj Patterson appeals from a judgment of the District Court (Garaufis, J.)
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`dismissing Patterson’s complaint for failure to state a claim against the City of
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`New York (the City), New York City Police Department (NYPD) Officer Rodrigo
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`Fernandez, Sergeant Ivan Furda, and Sergeant Joseph Zaikowski, as well as
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`against defendants Pinchas Braver and Mayer Herskovic, both of whom were
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`associated with Williamsburg Safety Patrol, Inc. (WSP) and Shmira Volunteer
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`Patrol Corp. He also appeals the District Court’s dismissal with prejudice of the
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`claims against the WSP, Abraham Winkler, Aharon Hollender, Joseph Fried, and
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`Yoeli Itzkowitz (together with Pinchas Braver and Mayer Herskovic, the WSP
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`Defendants), all of whom failed to appear and as to whom Patterson moved for a
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`default judgment. We assume the parties’ familiarity with the facts and record
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`of prior proceedings, to which we refer only as necessary to explain our decision
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`to affirm.
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`Patterson argues that the WSP Defendants qualify as state actors under
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`both the “public function” test and under two different formulations of the “joint
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`action” test: the symbiotic relationship test and the entwinement test. See
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`Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 294–303
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`(2001); McGugan v. Aldana‐Bernier, 752 F.3d 224, 229 (2d Cir. 2014). Patterson
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`also argues that he plausibly alleged a claim that the City, through the NYPD,
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`violated the Due Process Clause of the Fourteenth Amendment by giving
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`preferential treatment to the Orthodox Jewish community and thereby creating
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`the conditions that resulted in his assault.1 Okin v. Vill. of Cornwall‐on‐Hudson
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`Police Dep’t, 577 F.3d 415, 427–29 (2d Cir. 2009). Finally, although he never
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`sought leave before the District Court to file a second amended complaint and
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`has identified no particular additional facts that would cure the Amended
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`Complaint’s shortcomings, Patterson argues that the District Court abused its
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`discretion in dismissing his claims with prejudice. See Gallop v. Cheney, 642
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`F.3d 364, 369 (2d Cir. 2011).
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`1 In addition, Patterson argues in his reply brief that he plausibly alleged that the City
`violated the Fourth Amendment by deliberately failing to train the WSP Defendants.
`Because Patterson did not raise this argument in his opening brief, it is abandoned.
`See JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428
`(2d Cir. 2005).
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`Upon review of the record on appeal, we reject these arguments and affirm
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`the judgment substantially for reasons stated by the District Court in its
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`memoranda and orders of August 9, 2017 and February 14, 2018.
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`We have considered Patterson’s remaining arguments and conclude that
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`they are without merit. For the foregoing reasons, the judgment of the District
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`Court is AFFIRMED.
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`FOR THE COURT:
`Catherine O=Hagan Wolfe, Clerk of Court
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