Filed: Mar. 07, 2016
Latest Update: Mar. 02, 2020
Summary: 15-1681-cv Attallah v. New York College of Osteopathic Medicine UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (
Summary: 15-1681-cv Attallah v. New York College of Osteopathic Medicine UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W..
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15-1681-cv
Attallah v. New York College of Osteopathic Medicine
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 7th day of March, two thousand sixteen.
PRESENT: JOHN M. WALKER, JR.,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
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AHDY L. ATTALLAH.,
Plaintiff-Appellant,
v. No. 15-1681-cv
NEW YORK COLLEGE OF OSTEOPATHIC MEDICINE,
NEW YORK INSTITUTE OF TECHNOLOGY, EDWARD
GUILIANO, individually and in his official supervisory role at
New York College of Osteopathic Medicine or New York
Institute of Technology, THOMAS SCANDALIS, D.O.,
individually and in his official supervisory role at New York
College of Osteopathic Medicine, MARY ANN
ACHTZIGER, individually and in her official supervisory role
at New York College of Osteopathic Medicine, BARBARA
ROSS-LEE, D.O., individually and in her official supervisory
role at the New York College of Osteopathic Medicine, KURT
F. AMSLER, individually and in his official supervisory role
1
at New York College of Osteopathic Medicine, JOHN DOE, 1,
each individually and in his or her official supervisory role at
New York College of Osteopathic Medicine or New York
Institute of Technology, NASSAU UNIVERSITY MEDICAL
CENTER, NASSAU HEALTH CARE CORPORATION,
ALAN MULTZ, M.D., individually and in his official
supervisory role at Nassau University Medical Center,
MARTIN DIAMOND, D.O., individually and in his official
supervisory role at Nassau University Medical Center,
PRACHI ANAND, M.D., individually and in her official
supervisory role at Nassau University Medical Center, JOHN
SMITH, 1-12, individually and in his official supervisory role
at Nassau University Medical Center or Nassau Health Care
Corporation, CLAIRE BRYANT, individually and in her
official supervisory role at New York College of Osteopathic
Medicine, JOHN DOE, 2, each individually and in his or her
official supervisory role at New York College of Osteopathic
Medicine or New York Institute of Technology, JOHN DOE,
3, each individually and in his or her official supervisory role
at New York College of Osteopathic Medicine or New York
Institute of Technology, JOHN DOE, 4, each individually and
in his or her official supervisory role at Nassau University
Medical Center or Nassau Health Care Corporation,
GULNARA G. CHIKVAIDZE, AKA Culnara G. Chikvaidze,
in her personal capacity, IVERI SHAHIASHIVILI, in his
personal capacity, JOHN SMITH, 2, individually and his
official supervisory role at Nassau University Medical Center
or Nassau Health Care Corporation, TAMARA I.
SHASHIASHVILI, AKA Tamara Chachiashvili, AKA
Tamara Shashiashvilli, AKA Tamara Shashiashivli,
Defendants-Appellees.
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APPEARING FOR APPELLANT: KEVIN THOMAS MULHEARN, Kevin
T. Mulhearn, P.C., Orangeburg,
New York.
APPEARING FOR APPELLEES: DOUGLAS P. CATALANO, Clifton
Budd & DeMaria, LLP, New York, New
York (Neil G. Sparber, Norton Rose
2
Fulbright US LLP, New York, New
York, on the brief), for New York College
of Osteopathic Medicine, New York
Institute of Technology, Edward
Guiliano, Thomas Scandalis, D.O., Mary
Ann Achtziger, Barbara Ross-Lee, D.O.,
Kurt F. Amsler, and Claire Bryant.
WILLIAM H. NG (Amy L.
Ventry-Kagan, on the brief), Littler
Mendelson, P.C., Melville, New York,
for Nassau University Medical Center,
Nassau Health Care Corporation, and
Alan Multz, M.D.
DANIEL R. MILSTEIN, Greenberg
Traurig, LLP, New York, New York, for
Martin Diamond, D.O.
MARYAM JAHEDI, Maryam Jahedi
Law Firm, New York, New York (Gary
Schoer, Law Office of Gary Schoer,
Syosset, New York, on the brief), for
Gulnara G. Chikvaidze, Iveri
Shahiashivili, and Tamara I.
Shashiashvili.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Joseph F. Bianco, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on April 23, 2015, is AFFIRMED.
Plaintiff Ahdy L. Attallah, a former student at defendant New York College of
Osteopathic Medicine (“NYCOM”), appeals the dismissal of his complaint alleging that
3
NYCOM and others violated his procedural due process rights and New York state law by
expelling him. After concluding that Attallah had an adequate post-deprivation remedy
under Article 78 of the N.Y. C.P.L.R., the district court dismissed Attallah’s federal claims
under 42 U.S.C. § 1983 and declined to exercise supplemental jurisdiction over his
state-law claims. See Attallah v. N.Y. Coll. of Osteopathic Med., No. 12 Civ. 6132 (JFB)
(ARL) (E.D.N.Y. Mar. 27, 2015), ECF No. 127. We review a judgment of dismissal de
novo, “accepting as true all factual claims in the complaint and drawing all reasonable
inferences in the plaintiff’s favor.” Fink v. Time Warner Cable, 714 F.3d 739, 740–41 (2d
Cir. 2013). In so doing, we assume the parties’ familiarity with the facts and record of
prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Party Presentation
Attallah argues that the district court violated the principle of party presentation by
dismissing his § 1983 claims against the NYIT defendants1 when only defendants Nassau
University Medical Center, Nassau Health Care Corporation, Alan Multz, Martin
Diamond, and Prachi Anand explicitly argued an adequate remedy at state law in urging
dismissal. The argument is meritless. First, the NYIT defendants advanced an Article 78
argument in the district court both in their memorandum in support of dismissal and at oral
argument, albeit with respect to state-law claims. See, e.g., J.A. 215, 217. Second,
1
Attallah defines the NYIT defendants as New York College of Osteopathic Medicine,
New York Institute of Technology, Edward Guliano, Barbara Ross-Lee, Thomas
Scandalis, Mary Ann Achtzifer, Kurt F. Amsler, and Claire Bryant.
4
Attallah was on notice that his § 1983 claims were challenged on the basis of an adequate
state law remedy because, as he concedes, other defendants directly raised the issue in their
memoranda supporting dismissal. See Wachtler v. Cty. of Herkimer, 35 F.3d 77, 82 (2d
Cir. 1994) (recognizing court’s authority to dismiss complaint for failure to state claim,
even sua sponte, so long as plaintiff has notice and opportunity to be heard). Attallah had
an opportunity to respond to this argument in briefing and at oral argument, and did so in
two of his memoranda opposing dismissal. Thus, the district court reasonably considered
the alternative remedy point in dismissing Attallah’s § 1983 claims against all defendants.
See generally Hecht v. Commerce Clearing House, Inc.,
897 F.2d 21, 26 n.6 (2d Cir. 1990)
(affirming dismissal against all defendants, despite one defendant’s failure to appear or to
join in motion, because issues concerning non-movant were “substantially the same” as
those concerning movants and plaintiff “had notice and a full opportunity to make out his
claim”). Wood v. Milyard,
132 S. Ct. 1826 (2012), cited by Attallah, warrants no
different conclusion. There, the Supreme Court recognized that a district court can
consider a forfeited defense if the other party “is accorded a fair opportunity to present his
position,” as Attallah was here.
Id. at 1834. It was because the government had waived
the limitations defense that the Supreme Court identified abuse of discretion in dismissal of
the habeas corpus petition as untimely. See
id. at 1834−35. No such waiver is present in
this case. See United States v. Spruill,
808 F.3d 585, 596−97 (2d Cir. 2015) (discussing
difference between forfeiture and waiver).
5
2. Adequate Post-Deprivation Remedy
Attallah contends that he was not obligated to pursue his claims in an Article 78
proceeding because his expulsion was not academically based. The argument
misapprehends the district court’s decision, which did not hold that Attallah was required
to challenge his expulsion in an Article 78 proceeding. Rather, the district court
concluded that Attallah could not plausibly claim the deprivation of a protected interest
without due process of law because an adequate post-deprivation remedy in the form of an
Article 78 proceeding was available under state law. See Attallah v. N.Y. Coll. of
Osteopathic Med., slip. op. at 7−10. That ruling comports with controlling precedent.
See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that alleged state deprivation of
property does not violate procedural due process “if a meaningful postdeprivation remedy
for the loss is available”). Thus, even if, as Attallah alleges, state employees acted in
concert with administrators at Atallah’s private medical school to expel him, any ensuing
deprivation of property or liberty does not give rise to a procedural due process claim under
§ 1983. See Hellenic Am. Neighborhood Action Comm. v. City of New York,
101 F.3d
877, 882 (2d Cir. 1996) (holding “there is no constitutional violation (and no available
§ 1983 action) when there is an adequate state postdeprivation procedure to remedy a
random, arbitrary deprivation of property or liberty” (emphasis in original)); Attallah v.
N.Y. Coll. of Osteopathic Med., slip. op. at 9−10 (collecting cases holding that Article 78
6
proceeding is adequate post-deprivation remedy to challenge expulsion from private
school).2
In urging otherwise, Attallah argues that challenges to non-academic expulsions are
not limited to Article 78 proceedings and cites cases holding that, under certain
circumstances, students can challenge disciplinary actions through breach of contract
claims. The argument defeats itself because, assuming arguendo that Attallah’s claims
are the type suitable for judicial review in a breach of contract action, the availability of
that remedy reinforces the conclusion that Attallah was not denied procedural due process.
See Campo v. N.Y.C. Emps.’ Ret. Sys., 843 F.2d 96, 103 n.7 (2d Cir. 1988) (noting that
procedural due process may be satisfied where plaintiff has available “in addition to Article
78 review, a breach of contract claim”).
Accordingly, the district court correctly dismissed Attallah’s § 1983 claims because
the availability of an adequate post-deprivation remedy precluded him from stating a
plausible procedural due process claim.
2
Insofar as Attallah argues that his expulsion was caused by an established state procedure
so that “the availability of post-deprivation procedures will not, ipso facto, satisfy due
process,” Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d at
880, he fails plausibly to allege that any of the state actors had “the power and authority to
effect the very deprivation complained of here,” i.e., his expulsion from a private medical
school, or “the concomitant duty to see that no deprivation occur without adequate
procedural protections,” Zinermon v. Burch,
494 U.S. 113, 135, 138 (1990); see DiBlasio
v. Novello,
344 F.3d 292, 302 (2d Cir. 2003).
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3. Rule 11 Motion for Sanctions
Attallah argues that the district court erred in (1) relying on factual
misrepresentations by certain defendants granting dismissal and (2) denying his Fed. R.
Civ. P. 11 motion for sanctions based on those misrepresentations.
Attallah’s first argument fails because the district court did not rely on facts
presented by defendants in granting dismissal. Rather, as reflected in its thorough and
well reasoned opinion, the district court accepted Attallah’s allegations as true and drew all
reasonable inference in his favor. Even doing so, however, it concluded that Attallah
failed to state a claim as a matter of law. See Brady v. Town of Colchester, 863 F.2d 205,
211 (2d Cir. 1988) (affirming district court’s conclusion that plaintiff’s procedural due
process claim failed as matter of law when plaintiff “could have sought meaningful review
. . . within the state judicial system”).
We review the district court’s denial of Attallah’s Rule 11 motion for abuse of
discretion, see Ipcon Collections LLC v. Costco Wholesale Corp., 698 F.3d 58, 63 (2d Cir.
2012), and identify none here given the absence of any error of law or fact, see Caisse
Nationale de Credit Agricole-CNCA v. Valcorp, Inc.,
28 F.3d 259, 264–65 (2d Cir. 1994)
(holding that district court does not abuse discretion in deciding sanctions motion unless it
based its ruling on erroneous view of law or clearly erroneous assessment of evidence); see
generally Kropelnicki v. Siegel,
290 F.3d 118, 131 (2d Cir. 2002) (explaining that counsel
can violate Rule 11 when “pleading, motion or other paper . . . has been interposed for any
8
improper purpose, or where, after reasonably inquiry, a competent attorney could not form
a reasonable belief that the pleading is well grounded in fact and is warranted by existing
law” (emphasis omitted)).
4. Conclusion
We have considered Attallah’s remaining arguments and conclude that they are
without merit. We therefore AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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