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January 9, 1998

DAVID DAVIS, Plaintiff, against VICTOR GOODE, et al., Defendants.

The opinion of the court was delivered by: POLLAK

 POLLAK, United States Magistrate Judge:

 On June 17, 1994, plaintiff pro se, David Davis, filed a complaint against various professors and members of the Academic Standing Committee (the "Committee") of the City University of New York ("CUNY") School of Law (the "Law School"), seeking injunctive and declaratory relief and monetary damages for alleged violations of his civil rights in connection with his grade in the course entitled "Responsibility for Injurious Conduct I" ("RIC"), which plaintiff attended at the Law School in the fall of 1992. On November 1, 1995, Magistrate Judge Robert Levy issued a Report and Recommendation recommending that plaintiff's claims for injunctive and declaratory relief and for alleged violations of his right to due process under the Fourteenth Amendment be dismissed. The Report also recommended that the defendants' motion to dismiss plaintiff's equal protection claims be denied. On November 20, 1995, Judge Levy's Report was adopted by the District Court in its entirety.

 By Notice of Motion dated August 29, 1997, defendants moved for summary judgment, pursuant to Federal Rule of Civil Procedure 56(e), on the grounds that there are no genuine issues of material fact in dispute and that summary judgment should be entered as a matter of law. On September 3, 1997, pursuant to the consent of the parties, the case was reassigned to the undersigned for all purposes.

 Factual Background

 The relevant facts as alleged in plaintiff's complaint are set forth in detail in Judge Levy's Report and Recommendation dated November 1, 1995, with which familiarity is presumed. For purposes of this motion, it is undisputed that plaintiff was admitted in 1992 as a student at CUNY Law School, pursuant to a settlement agreement entered into by the Law School and plaintiff which resolved the race discrimination claims raised by Mr. Davis in the case of Davis v. Halpern, 768 F. Supp. 968 (E.D.N.Y. 1991) (No. 85 CV 2052). During the fall semester of 1992, plaintiff enrolled in RIC I, taught by Professor Sidney Harring, a defendant in this case and a former defendant in Davis v. Halpern, (Compl. at PP 1, 7, 12; Defs.' 3(g) Stmt. PP 4, 5). Due to the fact that a large number of students who took the final exam in the RIC I course received failing grades, Professor Harring was asked by the Law School to review the exams a second time and reduce the number of failing grades. (Compl. P 34; Defs.' 3 (g) Stmt. PP 9, 10). Although the parties dispute the exact number of students who initially failed the exam, *fn1" it is undisputed that a certain number of students who had initially failed the exam were successful in their grade appeals to Professor Harring. (Compl. P 35; Defs.' 3(g) Stmt. P 11).

 It is also undisputed that after learning of his grade, Mr. Davis wrote several articles, which appeared in two CUNY Law School student publications, criticizing the grade appeal process and accusing Professor Harring of showing favoritism in his grading procedure. (Compl. PP 16, 35-36).

 On May 25, 1993, plaintiff submitted a written grade appeal to Professor Harring, accusing the professor of retaliation for plaintiff's decision to name Professor Harring as a defendant in the Davis v. Halpern case. (Compl. P 37; Defs.' 3(g) Stmt. PP 15-16). Professor Harring denied plaintiff's grade appeal, and thereafter, on June 3, 1993, the Academic Standing Committee, having reviewed plaintiff's examination, confirmed that his RIC grade would not be changed. (Compl. P 8; Defs.' 3(g) Stmt. P 17).

 It is undisputed that after the successful prosecution of an Article 78 proceeding in New York State Supreme Court by another student, Walter Janneck (Compl. P 23), and a further investigation by the Law School into the RIC grading process, Mr. Davis, along with twenty-one other students, was given a "pass" grade. (Bryant Aff. PP 6-9; Levy Report at 6 n.7). Plaintiff ultimately graduated from the Law School in January 1996. (Bryant Aff. P 10)

 Following the order of the district court adopting Judge Levy's Report of November 1, 1995, the only claims that survive are plaintiff's claims for compensatory damages of $ 100,000 from each defendant and $ 100,000 in punitive damages from each defendant, based on the alleged violations of his First Amendment rights and his right to equal protection under the Fourteenth Amendment. Defendants now move for summary judgment, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, raising four arguments: 1) plaintiff's claims are moot because he received a passing grade and was allowed to graduate; 2) the complaint fails to state a claim for retaliation; 3) the Eleventh Amendment bars suit against the state defendants in their official capacities; and 4) the defendants Hom, Cicero, Calvo, Barnett-Carter, McConnel, Bilek, and Fields had no personal involvement in the alleged deprivation of plaintiff's rights.

 Plaintiff has filed papers in opposition to the motion arguing first, that the issues of mootness and the sufficiency of the retaliation claim have already been addressed and decided adversely to defendants by Judge Levy; that the defendants are being sued for monetary damages in their individual capacity; and that pursuant to Rule 56(f), plaintiff needs additional discovery before he can proceed to respond to the other issues in the defendants' motion.


 A. Summary Judgment Motion Standard

 It is well-settled that a party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Since summary judgment is an extreme remedy, cutting off the rights of the non-moving party to present a case to the jury, see Egelston v. State University College, 535 F.2d 752, 754 (2d Cir. 1976); Gibralter v. City of New York, 612 F. Supp. 125, 133-34 (E.D.N.Y. 1985), the court should not grant summary judgment unless it is clear that all of the elements have been satisfied. See Auletta v. Tully, 576 F. Supp. 191, 194 (N.D.N.Y. 1983), aff'd, 732 F.2d 141 (2d Cir. 1984). In addition, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. V. Zenith Radio Corp., 475 U.S. 574, 587-88, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)).

 Once the moving party discharges its burden of proof under Rule 56(c), the party opposing summary judgment "has the burden of coming forward with 'specific facts showing that there is a genuine issue for trial.'" Phillips v. Kidder, Peabody & Co., 782 F. Supp. 854, 858 (S.D.N.Y. 1991) (quoting Fed. R. Civ. P. 56(e)). However, Rule 56(e) "provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading." Anderson v. Liberty Lobby, Inc., 477 U.S. at 256. Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48 (emphasis in original).

 B. Mootness

 Defendants argue that plaintiff's complaint should be dismissed for lack of jurisdiction, pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure, because plaintiff's claims regarding his RIC I grade and the grade appeal process are moot. Specifically, they argue that since plaintiff passed the course and was permitted to graduate from the Law School, his claims that he received a failing grade and suffered a violation of his right to equal protection during the appeal process are no longer justiciable.

 This very issue was addressed by Judge Levy in his November 1, 1995 Report. As Judge Levy correctly noted, "the Second Circuit has held repeatedly that claims for damages or other monetary relief automatically avoid mootness in civil cases." (Levy Report at 10) (citations omitted). Here, the only thing that has changed since defendants' original motion was filed in 1995 is that Mr. Davis has since graduated from CUNY Law School. That alone does not extinguish any right that Mr. Davis may have to pursue his right to monetary damages against CUNY Law School for these past alleged violations of his constitutional rights. He has not withdrawn his claims for monetary ...

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