Thomas V. SCHULTZ, Plaintiff-Appellant, v. The INCORPORATED VILLAGE OF BELLPORT, Robert A. Green, Roger A. Terrel, Scott Augustine, Donald Mullins, Hugh Montgomery, Paul Bondachuck, Scott Rascelles, Officer Stewart # 13, Defendants-Appellees, Frank C. Trotta, Robert Lyons, III, John N. Orlando, J. Lee Snead, Adam R. Friedlander, Jane Doe Montgomery, wife of Hugh Montgomery, Defendants.
No. 10-4375-cv.
United States Court of Appeals, Second Circuit.
May 1, 2012.
PRESENT: RALPH K. WINTER, JOSEPH M. McLAUGHLIN and JOSE A. CABRANES, Circuit Judges.
SUMMARY ORDER
Plaintiff-Appellant Thomas V. Schultz appeals from a judgment of the District Court granting the defendants’ motion for summary judgment and dismissing his claims under
I.
Schultz first argues that the District Court should have construed his Amended Complaint as advancing § 1983 claims for false arrest and malicious prosecution in violation of the Fourth Amendment. Schultz, who was represented by counsel, raised state-law claims of false arrest and malicious prosecution in his Amended Complaint, but pursuant to a stipulation between the parties, the District Court ordered these and other state-law claims dismissed with prejudice. Therefore, as Schultz‘s attorney expressly conceded at oral argument on defendants’ motion for summary judgment, the only claims before the District Court were “a substantive due process claim based upon an alleged deprivation of liberty interest ... and a conspiracy claim.”
It is well established that, as a general rule, “a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). Schultz urges us to exercise our discretion to consider his false-arrest and malicious-prosecution claims for the first time on appeal because they “raise serious constitutional issues involving a group of high-ranking local government officials’ acts to prevent a competitor from succeeding in an election against them,” and would require no further factual development. We decline to do so. Though the matter is undoubtedly of exceptional importance to Schultz, we respectfully doubt that our intervention is required to correct a grave injustice. Furthermore, as Schultz himself concedes, he conducted little or no discovery; we are therefore skeptical that we could adequately address these new claims on the current record. Accordingly, we decline to review Schultz‘s newly advanced § 1983 claims for false arrest and malicious prosecution.
II.
Schultz also argues that the District Court erred in dismissing the claims that were before it—namely, his substantive due process claim and conspiracy claim, both brought pursuant to
We review orders granting summary judgment de novo and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir.2003). In determining whether there are genuine issues of mate
Following a de novo review of the record, we affirm for substantially the same reasons stated by the District Court in its careful Memorandum and Order of September 30, 2010. See Schultz v. Inc. Vill. of Bellport, No. 08-cv-930, 2010 WL 3924751 (E.D.N.Y. Sept. 30, 2010).
Schultz‘s substantive due process claim was based on the defendants’ alleged infringement of his right to choose his own field of private employment. He alleged that, as a result of the defendants’ conduct, “he had to close his business due to extraordinary decline in patronage.” However, as the District Court observed, this type of due process claim requires a showing that the plaintiff has been prevented from exercising his right to choose his own employment. See, e.g., Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) (recognizing that cases in this area “all deal with a complete prohibition of the right“). Here, even if it could be inferred that the defendants’ actions damaged Schultz‘s business, there is no evidence from which a rational jury could conclude that they directly blocked him from participating in his chosen line of work.
Because Schultz was unable to establish an underlying violation of his constitutional rights (and because we have declined his invitation to exercise our discretion to consider his newly raised claims for false arrest and malicious prosecution), his conspiracy claim and newly advanced Monell2 claim necessarily fail as well. See Droz v. McCadden, 580 F.3d 106, 109 (2d Cir.2009) (“Because neither of the underlying section 1983 causes of action can be established, the claim for conspiracy also fails.“); Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006) (“Because the district court properly found no underlying constitutional violation, its decision not to address the municipal defendants’ liability under Monell was entirely correct.“).
CONCLUSION
We have considered all of Schultz‘s arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the District Court.