Malkan v. Mutua et al
DECISION AND ORDER granting 55 Motion for Summary Judgment; denying 70 Motion for Sanctions; denying 83 Motion for Sanctions; adopting Report and Recommendations re 96 Report and Recommendations.; denying 97 Report and Recommendations. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/16/16. Copy of Decision and Order sent by first class mail to Plaintiff. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
Presently before the Court for review are two Reports
and Recommendations (“R&Rs”) prepared by Magistrate Judge
Jeffrey Malkan (“plaintiff”), proceeding pro se,2 brings
this action pursuant to 42 U.S.C. § 1983, alleging a
Amendment. Defendant Makau Mutua (“defendant”) has moved
This case was originally assigned to Judge Richard Arcara,
who referred it to Magistrate Judge Schroeder for two Reports and
Recommendations, which were completed and filed on December 1,
2015. The case was referred to this Court by order dated November
On the underlying motions for summary judgment and
sanctions, plaintiff was represented by Frederic D. Ostrove, Esq.,
of Leeds Brown Law, P.C. Plaintiff’s counsel was terminated by
plaintiff on July 16, 2015, however, and plaintiff now proceeds pro
for summary judgment (doc. 55) pursuant to Fed. R. Civ.
P. 56 and both parties have cross-moved for sanctions
pursuant to Rule 11. Docs. 70, 83. The parties’ motions
were referred to Magistrate Judge Kenneth Schroeder, Jr.,
disposition of the issues raised.
Judge Schroeder issued two R&Rs on December 1, 2015.
recommended that defendant’s motion for summary judgment
be granted. In the second R&R (“the second R&R”), Judge
sanctions be granted in part, and plaintiff’s motion for
sanctions be denied.
II. Factual Background and Procedural History
Plaintiff commenced this civil rights action pursuant
to 42 U.S.C. § 1983 on March 23, 2012, alleging that
defendant Makau W. Mutua (“defendant”), then Dean of the
State University of New York (“SUNY”) Buffalo Law School
(“the law school”), violated his due process rights under
plaintiff’s three-year contract as a clinical professor
at the law school. The Court hereby incorporates the
thorough factual summaries included in Judge Schroeder’s
R&Rs. Doc. 96 at 1-6; doc. 97 at 1-20.
At issue for purposes of defendant’s summary judgment
motion is whether plaintiff was afforded the requisite
due process when he was terminated, via non-renewal of
clinical professor. The first R&R (doc. 12) found that,
as a threshold issue, plaintiff had no property interest
in his position. The R&R therefore recommended that the
Court grant defendant’s motion for summary judgment on
that basis. Plaintiff, proceeding pro se, has submitted
objections to the first R&R. See docs. 99, 100.
The second R&R recommended that the Court grant
defendant’s motion for sanctions in part, by sanctioning
plaintiff’s former counsel, Frederic D. Ostrove, Esq.,
and his firm, Leeds Brown Law, P.C., in the amount of
$10,000.00, payable to the Clerk of the Court for the
Western District of New York. The second R&R declined to
Plaintiff and his former counsel have filed objections to
the second R&R. See docs. 98 (Mr. Ostrove’s objections);
99-101 (plaintiff’s objections). For the reasons stated
below, the Court adopts the first R&R in its entirety and
adopts the second R&R to the extent stated in this
Decision and Order.
When a “specific” objection is made to a portion of
district judge subjects that portion of the report and
recommendation to a de novo review. Fed. R. Civ. P.
72(b)(2); 28 U.S.C. § 636(b) (1)(C); Mario v. P & C Food
Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002). When
only a general objection is made to a portion of a
magistrate judge’s report and recommendation, or the
objection merely reiterates the same arguments made by
the objecting party in its original papers, the district
recommendation to only a clear error review. Fed. R. Civ.
Committee Notes: 1983 Addition. The objections made by
arguments which were fully briefed in the original motion
argument. Therefore, the Court reviews the R&Rs for clear
The First R&R
The Court has reviewed the record in this case as
well as the parties’ arguments on summary judgment. Upon
due consideration of the first R&R, the Court finds no
clear error. The Court agrees with Judge Schroeder’s
conclusion that plaintiff had no property interest in his
position as clinical professor at the law school, because
the rules governing term appointments in SUNY schools
provide that a term appointment can last no longer than
three years and that an individual so appointed has no
appointment. 8 N.Y.C.R.R. § 338.2; see 8 N.Y.C.R.R. §
335.10. The Court therefore adopts the first R&R in its
The Second R&R
The second R&R discussed cross-motions for sanctions
made by the parties pursuant to Rule 11 of the Federal
sanctions in the amount of $10,000.00 be awarded against
plaintiff’s counsel. The R&R recommended no monetary
sanctions against plaintiff himself due to his “current
[financial] circumstances.” Doc. 97 at 37. The Court
sanction in the amount of $10,000.00 against plaintiff’s
sanction as provided in the R&R, the Court emphasizes
that the reasons Judge Schroeder gave for imposing such
a monetary sanction are well-supported by this record.
Counsel’s actions and unduly contentious behavior, as
described in extensive detail in the second R&R, are
worthy of verbal sanctions as stated by Judge Schroeder.
For the foregoing reasons, the first R&R addressing
defendant’s summary judgment motion (doc. 96) is adopted
judgment (doc. 55) is hereby granted. The Court declines
to adopt the second R&R addressing sanctions (doc. 97)
and the parties’ cross-motions for sanctions (docs. 70,
83) are therefore denied. Plaintiff’s objections (docs.
99, 100) and former counsel’s objections (doc. 98) are
overruled to the extent stated in this Decision and
Order. The Clerk of the Court is directed to close this
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
December 16, 2016
Rochester, New York.
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