No. 09-1961-cv.United States Court of Appeals, Second Circuit.
February 8, 2010.
Appeal from a judgment of the United States District Court for the Southern District of New York (Castel, J.), filed April 7, 2009, which, in accordance with the court’s memorandum and order dated April 6, 2009, granted defendants-appellees’ motion for summary judgment and dismissed the complaint. UPON DUE CONSIDERATION, IT IS HEREBYORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Rocco G. Avallone, Cronin Byczek, LLP, Lake Success, NY, for appellant.
Phyllis Calistro, counsel (Elizabeth S. Natrella, Pamela Seider Dolgow, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for appellees.
PRESENT: PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges, DENNY CHIN,[*] District Judge.
Plaintiff-appellant Edgardo Rodriguez appeals from a judgment of the United States District Court for the Southern District of New York (Castel, J.) granting defendants-appellees’ motion for summary judgment and dismissing the claim. Appellant claims that the district court erred in granting summary judgment for appellees on appellant’s claim for unlawful termination in violation of the Fifth Amendment to the U.S. Constitution and 42 U.S.C. § 1983. We review a district court’s grant of summary judgment de novo, drawing all inferences in favor of the nonmoving party. See SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009). We assume the parties’ familiarity with the factual and procedural history of the case, as well as the issues on appeal, which we reference only to the extent necessary to explain our decision to affirm.
We affirm for substantially the reasons stated in the district court’s thorough and well-reasoned opinion. Rodriguez v. Kelly, No. 05-civ-10682, 2009 WL 911085 (S.D.N.Y. Apr.6, 2009).
The Fifth Amendment to the U.S. Constitution states, in relevant part, that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . .” U.S. Const., Amend. V. In order to bring a successful section 1983 claim based on this privilege against self-incrimination, a plaintiff must establish a violation of the underlying privilege. See Chavez v. Martinez, 538 U.S. 760, 772-73, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (plurality opinion) (holding that sergeant’s failure to rea Miranda warnings to suspect before questioning him did not violate suspect’s constitutional rights, and thus could not be grounds for section 1983 action against sergeant). The privilege is not limited to compelled testimony in criminal cases and may be asserted “in proceedings in which answers might be used to incriminate [witnesses] in a subsequent criminal case.” United States v. Patane, 542 U.S. 630, 638, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004). Even when an individual has legitimate reasons to fear that statements may be used against him, however, the Supreme Court has “long permitted the compulsion of incriminating testimony so long as those statements (or evidence derived from those statements) cannot be used against
the speaker in any criminal case.” Chavez, 538 U.S. at 768, 123 S.Ct. 1994; see also Weaver v. Brenner, 40 F.3d 527, 535 (2d Cir. 1994) (Constitution permits testimony to be compelled if neither it nor its fruits are available for such use). If a plaintiff is coerced into waiving his Fifth Amendment
rights and utters self-incriminating or inculpatory statements later used against him in a criminal proceeding, he may have a potentially successful section 1983 claim. See, e.g., Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998).
The district court held that Rodriguez:
set forth neither facts nor legal authority to support a claim that his Fifth Amendment rights were violated. The plaintiff explicitly denies that he refused to answer any questions that [his interrogator] posed. (Pl. 56.1 Resp. ¶¶ 4-5) He does not contend that any statements uttered by him during the interview were used against him at a criminal proceeding. Nowhere in plaintiff’s affidavit, opposition memo or Local Rule 56.1 response does the plaintiff maintain that he exercised his Fifth Amendment privilege against self-incrimination, and the interview transcript does not reflect any assertion of Fifth Amendment protections.
Rodriguez, 2009 WL 911085, at *3.
We agree with the district court that Rodriguez failed to establish a violation of the Fifth Amendment. It follows that Rodriguez’s claim for unlawful termination under section 1983 fails because he did not establish that his Fifth Amendment
rights were violated. See Chavez, 538 U.S. at 772-73, 123 S.Ct. 1994.
We have considered Rodriguez’s remaining claims and find them to be without merit.
For the reasons stated above, the judgment of the district court is AFFIRMED.