Malkan v. Mutua et al

Filing 20

DECISION AND ORDER denying 5 Motion to Dismiss for Failure to State a Claim. Signed by Hon. Richard J. Arcara on 10/3/2012. (JMB)

UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN,
Plaintiff,
v.

DECISION AND ORDER
12-CV-236-A

MAKAU W . MUTUA and
CHARLES P. EW ING,
Defendants.

Plaintiff Jeffrey Malkan brings this action pursuant to 42 U.S.C. § 1983
alleging that defendants Makau W . Mutua and Charles P. Ewing deprived him of
property without due process of law in violation of the Fourteenth Amendment to
the United States Constitution. U.S. Const. XIV. Plaintiff Malkan was a Clinical
Professor at the State University of New York at Buffalo Law School. Defendant
Mutua is the Dean of the Law School. Defendant Ewing is the chair of the faculty
Grievance Committee of the Law School.
In his complaint, plaintiff Malkan alleges that defendant Mutua wrongfully
terminated the plaintiff’s contract as a Clinical Professor on the faculty of the Law
School. The plaintiff alleges that defendants Mutua and Ewing intentionally
violated his due process rights to pre-termination and post-termination faculty
consultation and review of defendant Mutua’s termination of the contract.

Defendants Mutua and Ewing have moved to stay this action until a breach
of contract action that plaintiff Malkan filed against the State University of New
York in the New York State Court of Claims is resolved. The defendants argue
that the two cases are duplicative and wasteful.
Defendants Mutua and Ewing have also moved pursuant to Fed. R. Civ. P.
12(b) partially to dismiss plaintiff Malkan’s claims. The defendants do not seek
dismissal of the due process cause of action in the complaint, and only challenge
some remedies sought by the plaintiff. They argue that the remedies are either
beyond the Court’s subject-matter jurisdiction or are unwarranted by the facts
alleged in the complaint. For the reasons stated below, the defendants’ motions
are denied.
BACKGROUND 1
The plaintiff, Jeffrey Malkan, joined the faculty of the State University of
New York at Buffalo Law School in June, 2000 as a Clinical Associate Professor
and as Director of the Legal Research and W riting Program. On April 28, 2006,
plaintiff Malkan was promoted by the dean at the time, R. Nils Olsen, upon the
recommendation of the faculty Promotion and Tenure Committee, to the position
of Clinical Professor.
Plaintiff Malkan executed an employment contract for the position of

1

W hen addressing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b), the Court assumes the
well-pleaded allegations in a complaint are true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

2

Clinical Professor on November 16, 2006. The contract provided for a three-year
term of employment, followed by a “mandatory” two-year “administrative
extension” to be made at the end of the three-year term. The contract provided
that, while American Bar Association (“ABA”) accreditation standards required
accredited law schools to grant five-year contracts to full professors of the
plaintiff’s rank, State University of New York (“SUNY”) policies, by which the Law
School was bound, permitted only three-year contracts. The contract
nevertheless provided that it was a “five-year contract,” and characterized the
two-year extension necessary to make it a five-year contract as “routine[]” and
“automatic.” It specifically promised that “the Dean will extend your contract for
2-years, or from 9/1/2009-8/31/2011, to provide the 5-year contract term
mandated by the ABA.”
The November 16, 2006 contract also provided that plaintiff Malkan’s
appointment as a Clinical Professor could only be terminated “for good cause” in
accordance with ABA accreditation standards. It specifically promised:
A change in the structure or staffing of the law school’s
research and writing program will not equate with “for
good cause” to terminate or not renew your contract since
your contract as a Clinical Professor is separate from your
administrative appointment as Director of Research and
W riting. Should your appointment as Director of Research
and W riting end, you would still maintain your position as
Clinical Professor.
Dkt. No. 12-1, p. 23.

3

On March 13, 2008, shortly after being appointed interim Dean of the Law
School, defendant Makau W . Mutua dismissed plaintiff Malkan as Director of the
Legal Research and W riting Program, effective March 14, 2008. The plaintiff’s
dismissal was ostensibly in connection with termination of the existing Legal
Research and W riting Program. Defendant Mutua refused repeated attempts by
the plaintiff to discuss the plaintiff’s termination as Director of the Legal Research
and W riting Program. The plaintiff continued teaching as a Clinical Professor.
However, six months later, on August 28, 2008, defendant Mutua, who was
appointed Dean of the Law School in May, 2008, notified plaintiff Malkan by letter
that the plaintiff’s contract as a Clinical Professor would expire at the end of the
next academic year and that the contract would not be renewed. Defendant
Mutua stated in the letter that under ABA Standard 405, an instructor was subject
to termination upon “termination or material modification” of the clinical program,
and that the termination of the Legal Research and W riting program at the Law
School met the requirements of Standard 405.
Plaintiff Malkan asked to meet with defendant Mutua about his termination,
but defendant Mutua refused. Defendant Mutua later refused similar requests.
In January of 2009, plaintiff Malkan filed a protest with the faculty
Grievance Committee of the Law School, which was chaired by defendant
Charles P. Ewing. The protest was on the ground that defendant Mutua had
refused to consult with the Law School faculty Committee on Clinical Promotion
4

and Renewal (“CCPR”) regarding the plaintiff’s reappointment as a Clinical
Professor. The plaintiff asserted that defendant Mutua lacked authority to
terminate the plaintiff’s appointment as a Clinical Professor for cause without
consulting with and receiving a recommendation from the CCPR. Defendant
Mutua refused to consult with the CCPR.
Defendant Mutua also refused to participate in the faculty Grievance
Committee’s attempts to address plaintiff Malkan’s protest that defendant Mutua
was terminating the plaintiff without consultation with the CCPR and without a
recommendation by the CCPR. Defendant Ewing, as chair of the Grievance
Committee, orally acknowledged that the protest was within the Grievance
Committee’s jurisdiction. As chair of the Grievance Committee, defendant Ewing
spoke to defendant Mutua about the plaintiff’s termination and protest to the
Grievance Committee, but defendant Mutua refused to address the protest
through the Grievance Committee. The plaintiff requested that defendant Ewing
report the plaintiff’s unaddressed Grievance Committee protest to the Law School
faculty, as defendant Ewing was required to do as chair of the Grievance
Committee, but defendant Ewing refused to do so.
The CCPR convened for its only meeting of the 2008-2009 academic year
on April 21, 2009, to discuss the reappointment of two other Law School clinical
professors with contracts that were to expire on August 31, 2009. Defendant
Mutua refused to allow the CCPR to hear recommendations or to vote on plaintiff
5

Malkan’s reappointment. The Grievance Committee did not address the plaintiff’s
protest after the April 21, 2009 CCPR meeting. On September 1, 2009, the
plaintiff’s appointment as Clinical Professor terminated, ending his employment
relationship with the Law School.
In January of 2009, plaintiff Malkan brought an action against SUNY in the
New York State Court of Claims for breach of his employment contract. The
plaintiff alleged in the Court of Claims that, by terminating him as a Clinical
Professor before the expiration of the five-year term of his contract, SUNY
breached the terms of the contract as agreed to on November 16, 2006. The
plaintiff seeks damages from SUNY in the state court action, including past and
future lost pay.
SUNY has answered in the New York State Court of Claims that plaintiff
Malkan lacked an employment contract extending beyond the initial three-year
term that he served. SUNY alleges that, no matter what ABA accreditation
standards may require, the former dean of the Law School lacked authority to
enter into a contract with the plaintiff to extend the initial three-year term of the
contract by an “automatic” and “routine” two-year extension. The Court of
Claims action is still in pre-trial discovery.

6

DISCUSSION
I. Entry of a Stay. Defendants Mutua and Ewing move pursuant to the
Court’s inherent authority to stay this action until resolution of plaintiff Malkan’s
breach of contact action against SUNY in the New York State Court of Claims.
The defendants argue that this action is “entirely duplicative” of the Court of
Claims action and a waste of time.
The law upon which defendants Mutua and Ewing rely in support of their
motion to stay this action governs the entry of a discretionary stay where parallel
actions are pending in federal courts. See, e.g., Landis v. North Am. Co., 299
U.S. 248 (1936). However, the defendants’ motion to stay this action in favor of
an action pending in state court is necessarily governed by a different and more
strict “exceptional-circumstances” standard. Moses H. Cone Memorial Hospital
v. Mercury Construction Co., 460 U.S. 1, 19 (1979) (authority to stay “must be
exercised under the relevant standard.”); Burnett v. Physician's Online, Inc., 99
F.3d 72, 77 (2d Cir. 1996) (a “district court must balance the relevant factors in
reaching its decision.”).
A motion to stay a federal court action such as this one in favor of an action
pending in state court triggers very different considerations of comity between
sovereigns and of judicial administration than those triggered by parallel federal
litigation. It is well settled that a federal court may stay an action that is within its
subject-matter jurisdiction in favor of a parallel matter pending in a state court
7

only in truly exceptional circumstances. Moses H. Cone Memorial Hospital, 460
U.S. at 23-26 (1979); Colorado River Water Conservation Dist. v. United States,
424 U.S. 800, 817 (1976). The considerations that may arguably favor a federal
court’s surrendering its jurisdiction to a parallel state court action by staying the
federal action must far outweigh a federal court’s “virtually unflagging obligation”
to exercise its subject-matter jurisdiction. Colorado River, 424 U.S. at 813, 817;
Woodford v. Cmty. Action Agency of Greene Cnty., Inc., 239 F.3d 517, 522 (2d
Cir. 2001) (six-factor standard for entry of a stay of a federal action in favor of a
state court action).
Moreover, as a threshold matter, a stay of this federal action can be
entered only if this action is genuinely parallel to plaintiff Malkan’s New York State
Court of Claims action. Colorado River, 424 U.S. at 818; Dittmer v. Cnty. of
Suffolk, 146 F.3d 113, 118 (2d Cir.1998). “For two actions to be considered
parallel, the parties in the actions need not be the same, but they must be
substantially the same, litigating substantially the same issues in both actions.”
Royal and Sun Alliance Ins. Co. of Canada v. Century Intern. Arms, 466 F.3d 88,
94 (2d Cir. 2006) (citing Dittmer, 146 F.3d at 118).
Defendants Mutua and Ewing argue that this action and plaintiff Malkan’s
New York Court of Claims action are “entirely duplicative.” The defendants
overlook some substantial differences, however.
Key issues in both the federal civil rights action and state breach of
8

contract action will depend upon the construction of plaintiff Malkan’s employment
contract. The state law reading of the contract’s duration will obviously be a
critical factor in assessing the extent of the plaintiff’s property interest in
continued employment with the State — an essential predicate for this action —
but it will not be dispositive.
W hen considering whether plaintiff Malkan’s employment contract gave
him a property interest in continuing employment with the State sufficient to merit
due process protection, this Court will look both to the express terms of the
contract, and to the underlying policies and “unwritten common law” applicable
to the faculty appointment. See Perry v. Snyderman, 408 U.S. 593, 601-02
(1972); Bishop v. Wood, 426 U.S. 341, 344 (1976). The Court will assess
evidence of the relevant employment policies and practices of the Law School
and SUNY, including, among other evidence, the plaintiff’s November 16, 2006
contract promising the plaintiff that: (1) “the Dean will extend your contract for 2years, or from 9/1/2009-8/31/2011, to provide the 5-year contract term mandated
by the ABA”; and, (2) “[s]hould your appointment as Director of Research and
W riting end, you would still maintain your position as Clinical Professor.” In light
of such evidence, a ruling against the plaintiff on his state law breach of contract
claim in the New York State Court of Claims would not necessarily preclude a
finding by this Court of a viable property interest in the plaintiff’s continued
employment with the State.
9

W hen defendants Mutua and Ewing argue that this action is entirely
duplicative of the state action, they also overlook that the due process questions
at the core of plaintiff Malkan’s civil rights claim are unique to this action.
Assuming that the plaintiff had a property interest in his continued employment
with the State that was subject to due process protection, the questions
concerning what process he was actually due are unique to this action. See
Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004). There will be witnesses and
documentary evidence relevant to the property interest and due process issues in
this federal civil rights action that will not be relevant to the state law breach of
contract issues in the Court of Claims action.
The Second Circuit has held that the existence of related and overlapping
subject matter with a state proceeding is insufficient to permit entry of a stay.
Alliance of Am. Insurers v. Cuomo, 854 F.2d 591 (2d Cir. 1988) (state action
involving adequacy of insurance rates was insufficiently similar to federal action
attacking constitutionality of related state medical malpractice statutes to justify a
stay). In light of the federal questions that are unique to this case and which
stand to be resolved here regardless of the outcome of the plaintiff Malkan’s New
York State Court of Claims action against SUNY, the overlapping issues in this
case and the plaintiff’s state case are not “substantially the same” so as to
permit consideration of a stay. See Royal and Sun Alliance Ins. Co. of Canada,
466 F.3d at 94.
10

In addition, the Second Circuit has held in this context that “[s]imilarity of
parties is not the same as identity of parties.” Alliance of Am. Insurers v. Cuomo,
854 F.2d at 603. (stay inappropriate where the plaintiff in two pending state cases
– the New York Medical Malpractice Insurance Association — was an
unincorporated association that included the federal plaintiff — the Alliance of
American Insurers). Defendants Mutua and Ewing are not parties to the New
York State Court of Claims proceeding. W hile the defendants are in privity with
SUNY for some purposes, and may have some interests aligned with those of
SUNY in the Court of Claims proceeding, the university is distinct from the
defendants, who are sued here in their individual capacities and face personal
liability without the protection of the State’s sovereign immunity. “[S]uch
differences in parties and issues are strong factors against invoking exceptional
circumstances . . .” to justify a stay. Alliance of Am. Insurers v. Cuomo, 854 F.2d
at 603; see Burnett, 99 F.3d at 77. The Court finds that the parties in the state
action are not “substantially the same” as the parties in this action. See Royal
and Sun Alliance Ins. Co. of Canada, 466 F.3d at 94.
Based upon the substantial differences in this federal civil rights case and
plaintiff Malkan’s Court of Claims breach of contract case, the argument of
defendants Mutua and Ewing that the two actions are “entirely duplicative” is
without merit. The two actions are not genuinely parallel. The Court finds that
the defendants fail even to make the preliminary, threshold showing that is
11

necessary to warrant the Court’s consideration of the defendants’ exceptionalcircumstances motion for a stay. The defendants’ motion for a stay is denied.
II. Motions to Dismiss. Defendants Mutua and Ewing move pursuant to
Fed. R. Civ. P. 12(b)(1) to dismiss some remedies sought by plaintiff Malkan
against the defendants in their official capacities — including reinstatement and
the clearing of the plaintiff’s personnel record of evidence of his termination — as
barred by New York state’s sovereign immunity and the Eleventh Amendment.
U.S. Const. Amend. XI. A claim is properly dismissed for lack of subject-matter
jurisdiction pursuant to Rule 12(b)(1) “when the district court lacks the statutory
or constitutional power to adjudicate it.” Arar v. Ashcroft, 532 F.3d 157, 168 (2d
Cir.2008).
Defendants Mutua and Ewing move to dismiss plaintiff Malkan's claims for
compensatory and punitive damages “to the extent” that they are asserted
against the defendants in their official capacities. The plaintiff’s complaint does
not on its face seek compensatory or punitive damages from the defendants in
their official capacities. The plaintiff’s response to the defendants’ motions to
dismiss confirms that the plaintiff is not seeking to recover compensatory or
punitive damages from the defendants in their official capacities. The defendants'
motions to dismiss those remedies are denied as moot.
For the reasons that follow, the Court also denies the defendants’
remaining motions to dismiss. However, the Court dismisses, sua sponte, the
12

plaintiff’s equitable pay claim as beyond the Court’s subject-matter jurisdiction .
In general, the Eleventh Amendment protects state officials from civil suits
for actions taken in their official capacities. Will v. Michigan Dep’t of State Police,
491 U.S. 58, 71 (1989). However, pursuant to the U.S. Supreme Court’s decision
in Ex parte Young, a state official may be sued in his official capacity to enjoin an
ongoing violation of federal law. Ex parte Young, 209 U.S. 123 (1980). As the
Supreme Court has explained, where a state official seeks to enforce an allegedly
unconstitutional act or acts in violation of the federal rights of others, “the state
has no power to impart to him any immunity from responsibility to the supreme
authority of the United States.” Id. at 159-160.
In determining whether a suit against a state official falls within the Ex parte
Young exception to state sovereign immunity, the necessary inquiry focuses on
the nature of the relief sought. See Edelman v. Jordan, 415 U.S. 651 (1974).
Under Ex parte Young, a federal court is only permitted to grant injunctive relief
against future violations of federal law. See Green v. Mansour, 474 U.S. 64, 68
(1985) (“[T]he Eleventh Amendment does not prevent federal courts from
granting prospective injunctive relief to prevent a continuing violation of federal
law”). The Supreme Court has declined to extend the reasoning of Ex parte
Young to claims for relief that are retrospective. See Pennhurst State School &
Hospital v. Halderman, 465 U.S. 89, 102 (1984). W hen a plaintiff seeks relief in
the form of retroactive or compensatory damages as a remedy for a past injury,
13

and the damages would be paid from a state treasury, the suit is barred by the
Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651, 667 (1974) (a suit
“seeking to impose a liability which must be paid from public funds in the state
treasury is barred by the Eleventh Amendment”).
The Supreme Court has acknowledged that its prospective-retrospective
distinction — the dividing line between relief permitted under Ex parte Young and
that barred by the Eleventh Amendment — “will not in many instances be [as
distinct as] that between day and night.” Edelman, 415 U.S. at 667. W hile the
prospective-retrospective distinction can be difficult to apply, a central principle is
well established: where the effect on a state treasury is only “ancillary” to a
grant of prospective relief, the Eleventh Amendment does not bar the relief. See
Edelman, 415 U.S. at 667. Fiscal consequences are often a necessary result of
state compliance with injunctive relief permitted under Ex Parte Young, and their
existence is not an absolute bar to entry of such relief against a state official.
See, e.g., In re Dairy Mart Convenience Stores, Inc., 411 F.3d 367 (2d Cir. 2005)
(injunctive relief requiring state officials to accept plaintiff’s claims for
reimbursement from a state environmental assurance fund).
A. Official-Capacity Claim for Reinstatement. Employment
reinstatement has been recognized by the Second Circuit as a prospective form
of injunctive relief permitted under the Ex parte Young exception to a state’s
sovereign immunity. See Dwyer v. Regan, 777 F.2d 825 (2d Cir. 1985), modified
14

on other grounds, 793 F.2d 457 (2d Cir. 1986). In Dwyer, a state employee
brought an action pursuant to 42 U.S.C. §1983 against a state agency, alleging
that he had been deprived of a property interest in continued employment without
due process of law. The Second Circuit held on appeal that “reinstatement is
purely prospective injunctive relief that orders the state official to return the former
employee to the state's payroll,” and that reinstatement is permissible under Ex
parte Young. Dwyer at 836. This reasoning has been followed repeatedly. See,
e.g., Dotson v. Griesa, 398 F.3d 156, (2d Cir. 2005); Russell v. Dunston, 896
F.2d 664 (2d Cir. 1990). Plaintiff Malkan’s claim for reinstatement to the position
of Clinical Professor is therefore not barred by the Eleventh Amendment and the
defendants’ motion to dismiss the claim for that remedy is denied.
Defendants Mutua and Ewing overlook Second Circuit precedent that
reinstatement can be permissible under Ex Parte Young. Instead, the defendants
argue that because an order of reinstatement would be “intended to remedy an
alleged past violation,” it is “clearly retrospective.” But the mere existence of a
past harm does not “render an otherwise forward-looking injunction retroactive.”
Russell, 896 F.2d at 668. The need for prospective relief often arises out of an
injury inflicted in the past. The holding of Ex parte Young would mean nothing if
relief relating to past injuries were barred. Id.
Defendants Mutua and Ewing also contend that because reinstatement of
plaintiff Malkan would have an effect on the state treasury, it must be barred by
15

the Eleventh Amendment. However, under the prospective-retrospective
distinction articulated in Edelman, “sovereign immunity is not invoked simply
because prospective injunctive relief ultimately results in a diminution of state
funds.” See In re Dairy Mart Convenience Stores, Inc., 411 F.3d at 375. In cases
where effects on the state treasury are ancillary to an order of prospective relief
permitted under Ex parte Young, the Eleventh Amendment does not bar that
relief. In this case, while plaintiff Malkan’s reinstatement would necessarily
require the expenditure of state funds, it appears that the expenditure would be
an ancillary consequence of permissible prospective relief.
B. Official-Capacity Claim to Clear Personnel File. The Court also finds
that plaintiff Malkan’s claim for “the clearing of his personnel file of any wrongful
disciplinary actions” is similarly permitted under Ex parte Young. The existence
of derogatory information in the plaintiff’s personnel file, if found to be the result of
a violation of due process, would be an ongoing violation of federal law. Even
though removal of such information is arguably remedial, the Court finds the
remedy may be entered to compel state officials to prospectively bring their
actions into compliance with federal law to prevent future harm.
In Elliot v. Hinds, 786 F.2d 298 (7th Cir.1986), the Seventh Circuit Court of
Appeals found a former state employee’s similar claim requesting that his
personnel file be cleared of derogatory material to be purely prospective
injunctive relief. Id. at 302. As the Seventh Circuit held, “the removal of
16

damaging information from the plaintiff’s work record is not compensatory; rather,
it is to compel the state official to cease her actions in violation of federal law and
to comply with constitutional requirements.” Id. Other Circuit Courts have ruled
similarly, finding the removal of derogatory information from a plaintiff’s state
personnel file to be permitted under Ex parte Young. See, e.g., Williams v.
Kentucky, 24 F.3d 1526 (6th Cir. 1994) (expungement of all references relating to
demotion was prospective); Flint v. Dennison, 488 F.3d 816 (9th Cir. 2007) (state
university student’s prayer for injunctive relief clearing his school record of past
violations was prospective). The Court finds this reasoning to be correct.
Clearing plaintiff Malkan’s personnel file of references to an unlawful termination
would be directed toward preventing future violations of the plaintiff’s federal civil
rights. It therefore is prospective relief consistent with Ex parte Young, and is not
barred by the Eleventh Amendment.
C. Official-Capacity Claim for an Equitable Award of Pay. Plaintiff
Malkan also seeks equitable relief in the form of back pay and front pay.
Because these forms of relief would impose a monetary liability directly on the
state treasury, they are barred by the doctrine of sovereign immunity and the
Eleventh Amendment to the United States Constitution. U.S. Const. Amend XI.2

2

Defendants Mutua and Ewing have not challenged the equitable claims in the plaintiff's
complaint for back pay and front pay. Because that relief would be available from the
defendants, if at all, only in their official capacities, it is beyond the subject-matter jurisdiction of
the Court and is therefore addressed sua sponte pursuant to Fed. R. Civ. P. 12(h)(3).

17

A claim for back pay seeks “the payment of . . . money which should have
been paid, but was not.” Edelman, 415 U.S. at 664. Such an award would
necessarily require the payment of funds from the state treasury to remedy a past
injury. Applying this distinction, the Second Circuit has found a demand for back
pay in a suit against a state officer to be barred by the Eleventh Amendment.
Dwyer v. Regan, 777 F.2d 825, 835 (2d Cir. 1985). Plaintiff’s claim for back pay
is likewise therefore barred.
An award of front pay is similarly within the scope of the Eleventh
Amendment. W hile front pay is generally available in other contexts as an
alternative to reinstatement, were it to be awarded in this suit against state actors,
it would impose monetary liability on the state. See Campbell v. Arkansas Dept.
of Corr., 155 F.3d 950, 962 (8th Cir. 1998) (“For purposes of the Eleventh
Amendment, front pay is not analogous to the prospective relief permitted under
Ex parte Young because it must be paid from public funds in the state
treasury”.); Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698 (3d Cir. 1996)
(front pay is equivalent to “compensatory damages which would have to be paid
from the state,” and is barred by the Eleventh Amendment); Freeman v. Michigan
Dept. of State, 808 F.2d 1174, 1179 (6th Cir. 1987). Although the Second Circuit
does not seem to have ruled on this specific issue, the Court finds that front pay
is unavailable as an alternative to reinstatement in an official-capacity suit against
a state official where it will be paid from a state treasury.
18

D. Individual-Capacity Claim for Punitive Damages. Defendants Mutua
and Ewing have also moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss
plaintiff Malkan’s claim for punitive damages on the ground that the complaint
fails to plead facts sufficient to support a finding of the evil intent required to
support an award of punitive damages. In general, to survive a motion to dismiss
under Fed. R. Civ. P. 12(b)(6), a complaint must “state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The Court generally confines its analysis of such a motion to the four corners of
the complaint. Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); see Fed. R.
Civ. P. 12(d).
Punitive damages may be awarded under 42 U.S.C. § 1983 only where
“the defendant's conduct is shown to be motivated by evil motive or intent, or
when it involves reckless or callous indifference to the federally protected rights of
others.” Smith v. Wade, 461 U.S. 30, 56 (1983). The Second Circuit has found
punitive damages to be appropriate in cases involving wrongful termination on
prior occasions. See, e.g., Vasbinder v. Ambach, 926 F.2d 1333, 1343 (2d Cir.
1991) (punitive damages warranted where New York State Department of
Education employee was discharged in violation of First Amendment). To be
entitled to punitive damages, a plaintiff must show “a positive element of
conscious wrongdoing.” Kolstad v. American Dental Ass'n, 527 U.S. 526, 538
119 (1999).
19

Plaintiff Malkan essentially complains that his procedural rights to
mandatory Law School faculty review of his termination as a Clinical Professor
were denied by defendant Mutua in violation of the plaintiff’s Fourteenth
Amendment rights to due process. The plaintiff alleges that his termination as a
Clinical Professor was in wanton breach of specific promises made in his
November 16, 2006 employment contract. The contract, upon which the plaintiff
relies in the complaint, promised that “[a] change in the structure or staffing of
the Law School’s research and writing program w[ould] not” be good cause to
terminate or to not renew the plaintiff’s appointment as a Clinical Professor.
Nevertheless, defendant Mutua’s August 28, 2008 termination letter stated that
the “good cause” for the plaintiff’s termination was the termination of the Law
School’s Legal Research and W riting Program. The termination letter addressed
plaintiff’s termination as if the plaintiff were an instructor, not a Clinical Professor.
The termination letter disposed of the promise to the plaintiff of a five-year
contract as “not permitted by SUNY.”
The broken promises alleged by plaintiff Malkan are not directly relevant to
the plaintiff’s claim for punitive damages for violations of his rights to due process.
But those allegations, along with the allegations of defendant Mutua’s
stonewalling of the plaintiff’s various attempts to seek redress, together support a
reasonable inference that defendant Mutua was determined to resist mandatory
Law School faculty consultation and review of the plaintiff’s termination in order to
20

dismiss the plaintiff from the faculty no matter what. The complaint adequately
alleges that, when defendant Mutua refused to allow the plaintiff’s status to be
addressed by the CCPR and refused to address the plaintiff’s protest of the
circumstances of the plaintiff’s termination through the Grievance Committee,
defendant Mutua was acting in reckless and callous disregard of the plaintiff’s
rights to due process. The allegations of the complaint therefore support a claim
for punitive damages against defendant Mutua.3
Plaintiff Malkan alleges that defendant Ewing orally admitted that the
plaintiff’s protest of the circumstances of his termination, including defendant
Mutua’s refusal to consult with the CCPR, was within the jurisdiction of the faculty
Grievance Committee chaired by defendant Ewing. The plaintiff further alleges
that defendants Ewing and Mutua refused to address the plaintiff’s protest after
defendant Ewing spoke to defendant Mutua about the plaintiff’s termination and
the protest before the Grievance Committee.
After careful consideration, the Court finds it plausible that defendant
Ewing’s refusal as chair of the Grievance Committee to address plaintiff Malkan’s
protest, and his refusal to report the unaddressed protest to the faculty, was the
result of defendant Mutua’s refusal to cooperate with the Grievance Committee.
The complaint adequately alleges that defendant Ewing’s actions recklessly or
3

The Court has not considered plaintiff Malkan’s argum ent that defendant Mutua was retaliating against
the plaintiff for com plaining about his term ination as Director of Research and W riting in violation of the
Taylor Law, N.Y. Civil Service Law § 200 et seq., as is alleged in a Public Em ployee Relations Board
proceeding, because it is not alleged in the com plaint.

21

callously denied the plaintiff the procedural protections to which he was entitled.
Defendant Ewing’s motion to dismiss the plaintiff’s claim for punitive damages is
therefore also denied.
III. New York Due Process. Defendants Mutua and Ewing fail to
challenge plaintiff Malkan’s cause of action to the extent that it purports to be
stated under provisions of the New York State Constitution. Because such a
claim is beyond the Court’s subject-matter jurisdiction, it is dismissed, sua sponte,
pursuant to Fed. R. Civ. P. 12(h)(3).
The New York Court of Appeals has recognized a private right of action for
violations of the state constitution, but such claims are limited to circumstances in
which no alternative remedy is available to the plaintiff. Brown v. State, 89
N.Y.2d 172, 191-92 (N.Y. 1996). Here, the plaintiff alleges a cause of action
under § 1983 and the Fourteenth Amendment to the United States Constitution.
The § 1983 remedies are adequate remedies. There is no reason for this Court
to entertain an implied private right of action under an analogous clause of the
New York State Constitution. See Wahad v. F.B.I., 994 F.Supp. 237, 239-40
(S.D.N.Y. 1998) (no implied private right of action under New York State due
process clause where plaintiff had analogous claim under 42 U.S.C. § 1983 for
federal due process violations); see Lyles v. State, 194 Misc.2d 32 (N.Y. Ct. Cl.
2002), affirmed, 3 N.Y.3d 396 (N.Y. 2004)(adequacy of common law remedy held
by Court of Claims to preclude implied private right of action under New York
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State Constitution). To the extent plaintiff Malkan’s due process claim is stated
under provisions of the New York State Constitution, it is dismissed.
CONCLUSION
For the foregoing reasons, the motion to stay this action in favor of a
overlapping New York State Court of Claims action and the partial motions to
dismiss pursuant to Fed. R. Civ. P. 12(b) filed by defendants Makau W . Mutua
and Charles P. Ewing are all denied. The Court dismisses sua sponte plaintiff
Jeffrey Malkan’s equitable claims against the defendants in their official
capacities for front pay in lieu of reinstatement and for back pay, because the
claims are barred by New York State’s sovereign immunity and the Eleventh
Amendment to the United States Constitution. U.S. Const., Amend. XI. The
Court also dismisses sua sponte so much of plaintiff Malkan’s claim as may be
predicated upon an implied private right of action under the New York State
Constitution.
Pursuant to 28 U.S.C. § 636(b)(1)(B), this case is referred to a United
States Magistrate Judge for the W estern District of New York, to be assigned by
the Clerk of the Court, for all proceedings necessary to a determination of the
merits of the factual and legal issues presented by this action. At the conclusion
of such proceedings, the Magistrate Judge shall prepare and submit to this Court
a Report and Recommendation containing proposed findings of fact, if
appropriate, and recommendations for the disposition of any motions in this case.
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All papers shall continue to be filed in the Clerk’s office.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: October 3, 2012

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