Newman v. Suny Broome Community College

JOHN H. NEWMAN, JR., Plaintiff, v. SUNY BROOME COMMUNITY COLLEGE; and DR. CAROL SCOTT-ROSS, Vice President for Student Development and Chief Diversity Officer, Defendants.

No. 3:21-CV-0199 (MAD/ML)

United States District Court, N.D. New York

July 6, 2021

JOHN H. NEWMAN, JR.

Plaintiff, pro se

MEMORANDUM-DECISION AND ORDER

Mae A D'Agosting, U.S. District Judge

I. INTRODUCTION

On February 22, 2021, pro se Plaintiff, John Newman, commenced this civil rights action against Defendants, the State University of New York Broome Community College ("SUNY Broome") and Dr. Caron Scott-Ross, Vice President for Student Development and Chief Diversity Officer in her "official capacity and individual capacity" (collectively "Defendants"), with the filing of a complaint, and accompanied by an application for leave to proceed in forma pauperis ("IFP"). Dkt. No. 2. Plaintiff alleges a variety of violations of his constitutional rights and state law. See Dkt. No. 1 at 1-2.

On May 6, 2021, Magistrate Judge Lovric issued an Order and Report-Recommendation granting Plaintiff's application to proceed IFP. See Dkt. No. 4 at 16. Magistrate Judge Lovric recommended the Court dismiss Plaintiff's complaint in its entirety, without prejudice, and with leave to amend. See Id. Additionally, Magistrate Judge Lovric recommended that, should the Court adopt the recommendation to dismiss the Plaintiff's Fourteenth Amendment procedural due process claim and Fourteenth Amendment equal protection claim, Plaintiff's New York Human Rights Law claim should be dismissed for lack of jurisdiction. See Id. Finally, Magistrate Judge Lovric recommended that the Court dismiss as moot Plaintiff's application for an order directing service by United States Marshal. See Id. Currently before the Court is Magistrate Judge Lovric's Order and Report-Recommendation. For the following reasons, Magistrate Judge Lovric's Order and Report-Recommendation is adopted in its entirety.

II. DISCUSSION

A. Standard of Review

Liberally construed, Plaintiff's complaint asserts the following claims: (1) Fourteenth Amendment due process claims; (2) Fourteenth Amendment equal protection claims; and (3) New York Human Right Law §§ 292(4) and 296(15) claims of discrimination on the basis of Plaintiff's prior conviction and status as a felon. See Dkt. No. 1.

When a plaintiff seeks to proceed IFP, "the court shall dismiss the case at any time if the court determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). In making this determination, "'the court has the duty to show liberality towards pro se litigants,' however, 'there is a responsibility on the court to determine that a claim has some arguable basis in law before permitting a plaintiff to proceed with an action in forma pauperis.'" Griffin v. Doe, 71 F.Supp.3d 306, 311 (N.D.N.Y. 2014) (quoting Moreman v. Douglas, 848 F.Supp. 332, 333-34 (N.D.N.Y. 1994)) (internal citations omitted); see also Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).

When reviewing a complaint under section 1915(e), the court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading that sets forth a claim for relief shall contain "a short and plain statement of the claim, showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8" 'is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense.'" Hudson v. Artuz, No. 95 CIV. 4768, 1998 WL 832708, *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977))) (other citation omitted).

A court should not dismiss a complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although the court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Thus, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). A complaint filed by a pro se litigant should not be dismissed without granting leave at least once "when a liberal reading of the complaint gives any indication that a valid claim might be stated." Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991).

A litigant's failure to file objections to a magistrate judge's report and recommendation, even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point") (citation omitted). A pro se litigant must be given notice of this rule; notice is sufficient if it informs the litigant that the failure to timely object will result in the waiver of further judicial review and cites pertinent statutory and civil rules authority. See Frank v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).

B. Fourteenth Amendment Procedural Due Process Claim

"The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property without due process of law, and 'those who seek to invoke its procedural protection must establish that one of these interests is at stake.'" Victory v. Pataki, 814 F.3d 47, 59 (2d Cir. 2016) (quoting Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012)) (other citation omitted). "'[S]tandard analysis under that provision proceeds in two steps: We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient.'" Id. (quoting Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011)).

"Protected property interests ‘are not created by the Constitution.'" Hughes v. City of N.Y., 197 F.Supp.3d 467, 474 (E.D.N.Y. 2016) (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). "Instead, 'they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" Id. (quotation and other citation omitted); see also Ciambriello v. Cty. of Nassau, 292 F.3d 307, 313 (2d Cir. 2002)). The Second Circuit has found that New York Education Law Section 3202 creates a property interest in a public education. See Handberry v. Thompson, 446 F.3d 335, 353 (2d Cir. 2006) (citations omitted). As such, a student such as Plaintiff has a protected property interest in his education, meaning that he cannot be deprived of that right without due process of law. See Cohn v. New Paltz Cent. Sch. Dist., 363 F.Supp.2d 421, 432 (N.D.N.Y. 2005) (citation omitted).

Plaintiff brings this claim pursuant to 42 U.S.C. § 1983. In order to state a claim pursuant to Section 1983, a plaintiff must allege "two elements: (1) 'the violation of a right secured by the Constitution and laws of the United States,' and (2) 'the alleged deprivation was committed by a person acting under color of state law.'" Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87-88 (2d Cir. 2015) (citations and quotations omitted). "State action is an essential element of any § 1983 claim." Baum v. N. Dutchess Hosp., 764 F.Supp.2d 410, 419 (N.D.N.Y. 2011) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 934 (1982)) (other citations omitted).

"Constitutionally due process 'requires that individuals have "notice and opportunity for a hearing appropriate to the nature of the case 'prior to a deprivation of life, liberty, or property.'" Cohn, 363 F.Supp.2d at 433 (quoting Rosa R. v. Connelly, 889 F.2d 435, 438 (2d Cir. 1989)) (other citation omitted). "'Notice must be reasonably calculated, under all the circumstances, to appraise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Id. (quoting Rosa R., 889 F.2d at 439) (other quotation omitted). Moreover, it is well-established in the context of disciplinary proceedings, such as those at issue here, that post-discipline due process provides sufficient due process to satisfy the requirements of the Fourteenth Amendment. See Cohn, ...