Malkan v. Mutua et al
Filing
114
DECISION AND ORDER amending Decision and Order dated December 16, 2016.. Signed by Hon. Michael A. Telesca on 12/18/16. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JEFFREY MALKAN,
Plaintiff,
AMENDED
No. 1:12-CV-00236 (MAT)
DECISION AND ORDER
-vsMAKAU MUTUA,
Defendants.
This Decision and Order amends the Decision and Order dated
December 16, 2016 and filed on that date.
I.
Introduction
Presently before the Court for review are two Reports and
Recommendations
(“R&Rs”)
Schroeder,
and
Jr.
prepared by
filed
December
Magistrate
1,
2015.1
Judge Kenneth
Jeffrey
Malkan
(“plaintiff”), proceeding pro se,2 brings this action pursuant to
42 U.S.C. § 1983, alleging a single due process claim pursuant to
the Fourteenth Amendment. Defendant Makau Mutua (“defendant”) has
moved 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
1
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 16, 2016.
2
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 se.
Judge Kenneth Schroeder, Jr., for consideration of the factual and
legal issues
presented,
and
to
prepare
and file
Reports
and
Recommendations (“R&R”) containing a recommended disposition of the
issues raised.
Judge Schroeder issued two R&Rs on December 1, 2015. In the
first
(“the
first
R&R”),
Judge
Schroeder
recommended
that
defendant’s motion for summary judgment be granted. In the second
R&R
(“the
defendant’s
second
motion
R&R”),
for
Judge
sanctions
Schroeder
be
recommended
granted
in
part,
that
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 the Fourteenth Amendment when he declined to
renew 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 his three-year term contract,
from his position as clinical professor. The first R&R (doc. 12)
2
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 recommend sanctioning plaintiff himself due to his “current
[financial] circumstances.” Doc. 97 at 37. 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.
III. Discussion
When
a
“specific”
objection
is
made
to
a
portion
of
a
magistrate judge’s report and recommendation, the 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
3
judge’s
report
and
recommendation,
or
the
objection
merely
reiterates the same arguments made by the objecting party in its
original papers, the district judge subjects that portion of the
report and recommendation to only a clear error review. Fed. R.
Civ. P. 72(b)(2), (3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition. The objections made by plaintiff and his
former counsel merely reiterate arguments which were fully briefed
in the original motion argument. Therefore, the Court reviews the
R&Rs for clear error.
A.
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 “legal right, interest,
or expectancy” in a renewed 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 entirety and grants defendant’s motion for summary judgment.
B.
The Second R&R
The second R&R discussed cross-motions for sanctions made by
the parties pursuant to Rule 11 of the Federal Rules of Civil
4
Procedure. The R&R recommended that defendant’s motion be granted
to the extent that 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. Accordingly, for equitable concerns
and weighing the combined behavior of both the plaintiff and his
counsel, the Court declines to adopt the recommendation of a
monetary sanction in the amount of $10,000.00 against plaintiff’s
former counsel. In declining to adopt the monetary sanction as
provided in the R&R, the Court emphasizes that the reasons Judge
Schroeder gave for imposing such a monetary sanction are wellsupported 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.
IV. Conclusion3
For
the
foregoing
reasons,
the
first
R&R
addressing
defendant’s summary judgment motion (doc. 96) is adopted in its
entirety and defendant’s motion for summary judgment (doc. 55) is
hereby granted. The Court modifies the second R&R (doc. 97) to the
extent that monetary sanctions will not be imposed by the Court
against
plaintiff’s
counsel,
but
in
all
other
respects
the
sanctions as stated by Judge Schroeder are accepted and adopted.
R&R.
3
This conclusion is amended to clarify the modified adoption of the second
In all other respects, the Decision and Order remains as originally filed.
5
Defendant’s motion for sanctions (doc. 83) is, therefore, granted
in part and plaintiff’s motion for sanctions (doc. 70) is 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 case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
December 18, 2016
Rochester, New York.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?