Malkan v. Mutua et al
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
No. 1:12-CV-00236 (MAT)
DECISION AND ORDER
This Decision and Order amends the Decision and Order dated
December 16, 2016 and filed on that date.
Presently before the Court for review are two Reports and
(“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
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.
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
Recommendations (“R&R”) containing a recommended disposition of the
Judge Schroeder issued two R&Rs on December 1, 2015. In the
defendant’s motion for summary judgment be granted. In the second
plaintiff’s motion for sanctions be denied.
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)
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.
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
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.
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.
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
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
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.
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
sanctions as stated by Judge Schroeder are accepted and adopted.
This conclusion is amended to clarify the modified adoption of the second
In all other respects, the Decision and Order remains as originally filed.
Defendant’s motion for sanctions (doc. 83) is, therefore, granted
in part and plaintiff’s motion for sanctions (doc. 70) is denied.
objections (doc. 98) are overruled to the extent stated in this
Decision and Order. The Clerk of the Court is directed to close
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
December 18, 2016
Rochester, New York.
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