Skip to main content


Reset A A Font size: Print

United States Court of Appeals, Second Circuit.

Mohamed A. HAFEZ, Plaintiff-Appellant, v. CITY OF SCHENECTADY, Gary R. McCarthy, Domenic Viscariello, Defendants-Appellees.

No. 18-1216

Decided: March 20, 2019

PRESENT: PIERRE N. LEVAL, RICHARD C. WESLEY, RAYMOND J. LOHIER, JR., Circuit Judges. FOR APPELLANT: Mohamed A. Hafez, pro se, Schenectady, NY. FOR APPELLEES: Gregg T. Johnson, Johnson & Laws, LLC, Clifton Park, NY.


Mohamed A. Hafez, pro se, appeals from a judgment of the District Court (Suddaby, C.J.), granting the defendants’ motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Hafez sued the City of Schenectady and some of its officials under 42 U.S.C. § 1983, alleging violations of his First, Fourth, and Fourteenth Amendment rights, as well as state law violations, in connection with the defendants’ refusal to issue rental certificates on Hafez’s properties. The District Court dismissed the action principally because Hafez’s federal claims were barred by res judicata, and it also denied Hafez’s request for leave to amend the complaint.1 We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to affirm.

Substantially for reasons set forth in its decision and order dated March 27, 2018, we conclude that the District Court properly dismissed Hafez’s federal claims as barred by the doctrine of res judicata, which “bars re-litigation if (1) the previous action involved an adjudication on the merits; (2) the previous action involved the [same parties] or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.” Soules v. Connecticut, Dep’t of Emergency Servs. & Pub. Prot., 882 F.3d 52, 55 (2d Cir. 2018) (quotation marks omitted).

As to the first element, the District Court correctly held that Hafez v. City of Schenectady (“Hafez I”), 894 F.Supp.2d 207 (N.D.N.Y. 2012), aff’d, 524 F. App'x 742 (2d Cir. 2013), was an adjudication on the merits because the court granted summary judgment for the defendants. Id. at 230; see Weston Funding Corp. v. Lafayette Towers, Inc., 550 F.2d 710, 713 (2d Cir. 1977). In that case, Hafez brought a § 1983 federal action in 2010 against the City of Schenectady and city officials, alleging that the city’s Rental Certificate Ordinance (“RCO”) violated his rights under the First, Fourth, and Fourteenth Amendments and under state law. Hafez I, 894 F.Supp.2d at 209, 213–30.

The second requirement was also met, where the parties in the instant action were either parties to the 2010 action or were in privity with the parties in that action. As most relevant here, because Hafez challenges only the official actions of both mayors, we conclude that both suits are, in substance, suits against the city. See Reynolds v. Giuliani, 506 F.3d 183, 191 (2d Cir. 2007) (“An official capacity suit against a public servant is treated as one against the governmental entity itself.”). Thus, the District Court properly determined that this requirement was satisfied.

The Hafez I claims were also sufficiently related to the current claims to satisfy the third requirement. In analyzing this requirement, the District Court properly recognized that Hafez’s second action attempts merely to litigate new incidents that arose from enforcement of the same ordinance—including the inspection requirement and the defendants’ denial of rental certificates for his properties—previously analyzed in Hafez I, and that Hafez’s constitutional challenge to the registration requirements of the RCO could have been brought in his previous action.

We next turn to the District Court’s denial of leave to amend based on futility, which we review de novo. Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 490 (2d Cir. 2011). We agree with the District Court that Hafez’s proposed amendments do not raise any claims as to the existing defendants that would not also be barred by res judicata. The District Court also properly denied as futile Hafez’s request to add Jeffrey Briere and Krystine Smith as defendants on the theory that they retaliated against him for exercising his First Amendment rights by charging him with violating the RCO.2 The record before us clearly shows that Briere and Smith had legitimate, nonretaliatory reasons for their charges, and Hafez does not claim that these reasons were pretextual. Accordingly, the District Court properly denied leave to amend.

We have considered all of Hafez’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.


1.   Hafez does not challenge the District Court’s decision to decline to exercise supplemental jurisdiction over his state law claims.

2.   For the first time on appeal, with respect to his proposed claims against Briere and Smith, Hafez also argues that the protected activity was his opposition to the current mayor’s reelection. Although Hafez alleged before the District Court that his opposition to the current mayor’s reelection was the impetus for retaliation by the mayor and Defendant Viscariello, he did not claim that his opposition was also the reason for the alleged retaliation by Briere and Smith. This argument is therefore forfeited.

Copied to clipboard