Picinich v. New York Department of Education et al
ORDER ADOPTING 32 REPORT AND RECOMMENDATIONS of Magistrate Judge Bloom. Accordingly, defendants' motion to dismiss in granted. Picinich's federal claims are dismissed with prejudice, save for his equal protection claim premised on a selective enforcement theory, which Picinich may replead within thirty days of this Order. Having dismissed all of the federal claims over which this Court has original jurisdiction and there being no basis for jurisdiction pursuan t to 28 U.S.C. § 1332, the Court declines to exercise supplemental jurisdiction over Picinich's additional state and city law claims, which are dismissed without prejudice. The Clerk of Court is directed to enter judgment accordingly. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States. 368 U.S. 438,444-45 (1962). So Ordered by Judge Carol Bagley Amon on 3/21/2017. (c/m) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-againstNEW YORK DEPARTMENT OF EDUCATION;
NOT FOR PUBLICATION
GABRIELLA ANTIOCHO,ESQ., OFFICE OF
MEMORANDUM & ORDER
LEGAL SERVICES/GENERAL COUNSEL,in
her official and individual capacity; PRINCIPAL
MICHAEL ATHY,in his official and individual
capacity; ASSISTANT PRINCIPAL ELIZABETH
M. GUGLIELMO,in her official and individual
AMON,United States District Judge:
Before the Court is defendant's motion to dismiss pro se plaintiff Gregory Picinich's
September 23, 2015 complaint, which Picinich brought pursuant to 42 U.S.C. § 1983. In his
complaint, Picinich alleges that defendants violated his First, Fourth, and Fourteenth Amendment
rights as well as various New York State and New York City laws, when they brought disciplinary
charges against him and ultimately succeeded in removing him from his tenured teaching position.
(D.E.# 1.) After the case was transferred to this Court,(D.E.# 13), defendants moved to dismiss
the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and
because Picinich is collaterally estopped from relitigating those claims already determined in the
administrative hearing and State court, (D.E. # 26). The Court referred the motion to the
Honorable Lois Bloom, United States Magistrate Judge, for Report and Recommendation. (D.E.
dated June 13, 2016.)
The Court has now received Magistrate Judge Bloom's recommendation that defendants'
motion to dismiss Picinich's federal claims be granted and that those claims be dismissed with
prejudice, save for his equal protection selective enforcement claim, which Picinich should be
afforded thirty days to replead. (D.E. # 32 ("R&R") at 17.) Magistrate Judge Bloom further
recommended—assuming this Court dismisses Picinich's federal claims—^that this Court decline
to exercise supplemental jurisdiction over his state and city law claims. (Id.) Picinich filed a letter
that the Court deems timely, reiterating that he "continue[s] to object to the motion to dismiss my
case for the reasons stated in my previous papers," and asking that the Court allow him to replead
his equal protection claim and that it maintain jurisdiction over his state law claims. (D.E. # 35.)
Defendants neither objected to the R&R nor responded to Picinich's letter.
When deciding whether to adopt an R&R,a district court "may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.
§ 636(b)(1). To accept those portions ofthe R&R to which no timely objection has been made,"a
district court need only satisfy itself that there is no clear error on the face of the record." Jarvis
V. N. Am.Globex Fund. L.P.. 823 F. Supp. 2d 161,163(E.D.N.Y. 2011)(internal quotation marks
and citation omitted). When specific objections are made,"[t]he districtjudge must determine de
novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R.
Civ. P. 72(b)(3). If a party "makes only conclusory or general objections, or simply relitigates his
original arguments, the Court reviews the Report and Recommendation only for clear error."
Barratv. Joie. No. 96-CV-324,2002 WL 335014, at *1 (S.D.N.Y. Mar. 4,2002): see also Ortiz v.
Barklev. 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008)("Reviewing courts should review a report
and recommendation for clear error where objections are merely perfunctory responses, argued in
an attempt to engage the district court in a rehashing ofthe same arguments set forth in the original
petition.")(citations and internal quotation marks omitted). Even where the litigant is pro se. an
"objection to a report and recommendation in its entirety does not constitute a specific written
objection within the meaning of Rule 72(b)." Snvder v. Perry. No. 14-CV-2090(CBA)(RER),
2015 WL 1262591,at *2(E.D.N.Y. Mar. 18,2015)(quoting Williams v. Woodhull Med.& Mental
Health Ctr.. 891 F. Supp. 2d 301, 310 (E.D.N.Y. 2012)). Where parties file general objections,
the Court need only determine whether the R&R's analysis is clearly erroneous. DiPilato v. 7Eleven. Inc.. 662 P. Supp. 2d 333, 340(S.D.N.Y. 2009).
Here, to the extent that his letter was intended as an objection to the R&R,Picinich makes
only general objections to the entire R&R,in which he expressly seeks to relitigate the very issues
he raised in his underlying papers. Accordingly, the Court has reviewed the thorough R&R for
clear error and, finding none, adopts Magistrate Judge Bloom's recommendations. Prior to filing
his complaint in federal court, Picinich had challenged his dismissal over the course of a
fourteen-day administrative hearing and, when the Hearing Officer determined that Picinich's
termination was proper, sought Article 75 review from the New York State Supreme Court. (See
R&R at 3-4.) The State court dismissed the petition, finding that the underlying disciplinary
hearing "was rationally based and was not made arbitrarily and capriciously[.]" (Id at 4.)
Therefore, Picinich's due process claims were addressed by the State court and he is collaterally
estopped from raising them again here. (Id at 9-10.) His First Amendment claim is meritless
because his complaints, which focused on issues related to his teaching position, do not constitute
protected speech under the First Amendment,(id at 12-13). S^ Garcetti v. Ceballos. 547 U.S.
410,418(2006). Nor has Picinich articulated any viable Fourth Amendment claim. (R&R at 14.)
As for his Fourteenth Amendment equal protection claim, Picinich has not sufficiently alleged that
a newly hired female Latin teacher is an appropriate comparator who was similarly situated to him,
or that his termination was motivated by an impermissible consideration,(id at 15-16). See, e.g..
Harlen Assocs. v. Inc. Vill. of Mineola. 273 F.3d 494,499(2d Cir. 2001).
Accordingly, defendants' motion to dismiss in granted. Picinich's federal claims are
dismissed with prejudice, save for his equal protection claim premised on a selective enforcement
theory, which Picinich may replead within thirty days of this Order. Having dismissed all of the
federal claims over which this Court has original jurisdiction and there being no basis for
jurisdiction pursuant to 28 U.S.C. § 1332,the Court declines to exercise supplementaljurisdiction
over Picinich's additional state and city law claims, which are dismissed without prejudice.
28 U.S.C. § 1367(cV31: see also Cave v. E. Meadow Union Free Sch. Dist.. 514 F.3d240,250(2d
Cir. 2008)("We have already found that the district court lacks subject matter jurisdiction over
appellants' federal claims. It would thus be clearly inappropriate for the district court to retain
jurisdiction over the state law claims when there is no basis for supplemental jurisdiction.").
The Clerk of Court is directed to enterjudgment accordingly. The Court certifies pursuant
to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and
therefore in forma oauperis status is denied for the purpose ofan appeal. S^ Coppedge v. United
States. 368 U.S. 438,444-45 (1962).
Brooklyn, New York
s/Carol Bagley Amon
United States District Judge
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