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MOORE v. BLACK

September 2, 2004.

JERRY W. MOORE, Plaintiff,
v.
DENNIS BLACK (Vice President — New York State — University at Buffalo), and BARBARA J. RICOTTA (Dean of Students — New York State — University at Buffalo), Defendants.



The opinion of the court was delivered by: KEN SCHROEDER, Magistrate Judge

REPORT, RECOMMENDATION AND ORDER

This matter was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #11.

Currently before the Court is the defendants' motion for summary judgment (Dkt. #6), and the plaintiff's motions for summary judgment (Dkt. ##13,14). For the following reasons, it is recommended that the defendants' motion be granted and the plaintiff's motions denied. BACKGROUND

  Following his graduation from the State University of New York at Buffalo ("SUNYAB"), on May 24, 1999, plaintiff allegedly threatened to assault Dean Lee Drydan with a baseball bat if the Dean did not change plaintiff's grade. Dkt. #9, ¶ 2. As a result of that incident, Barbara Ricotta, Associate Vice President for Campus Life at SUNYAB, informed plaintiff by letter dated June 11, 1999, that he was barred "from participating in any University activity or entering onto or being in any property owned or operated by [SUNYAB] for no less than one year." Dkt. #13, Exh. H. The plaintiff was advised that he had been accepted into the Master of Library and Information Science program by letter dated July 19, 1999. Dkt. #13, Exh. I. By letter dated August 6, 1999, Dennis Black, Vice President for Student Affairs, advised plaintiff that he could request a review of his persona non grata status by submitting a written request "with a detailed explanation of [his] behavior toward Dr. Dryden on June 11, 1999." Dkt. #13, Exh. K.

  Instead of seeking such a review, plaintiff commenced a series of legal actions in New York State Supreme Court, New York State Court of Claims, and United States District Court. Dkt. #8, ¶¶ 6, 8, 9, 10, 11. Each of these actions was dismissed. Dkt. #8, Exh. D, E, F, G, H, J. In the federal court action entitled Moore v. Ricotta, plaintiff alleged that he was denied due process of law because he was not afforded adequate notice and a hearing prior to the issuance of the person non grata letter. See 00-CV-0200 (W.D.N.Y.). This Court determined that plaintiff had not demonstrated either a liberty or property interest in not being excluded from SUNYAB since he was not a student at that time and members of the general public have no liberty or property interest in remaining on a university campus. Id. The Court of Appeals for the Second Circuit affirmed this Court's decision in an unpublished summary order which stated as follows:
Moore had the status of a visitor when he received the letter; as a result he did not, at that time, have a Fourteenth Amendment liberty or property interest in being present on campus. See Bd. of Curators of the Univ. of Miss. v. Horowitz, 435 U.S. 78, 82 (1978) ("To be entitled to the procedural protections of the Fourteenth Amendment, respondent must . . . demonstrate that her dismissal from school deprived her of either a `liberty' or a `property' interest."); People v. Leonard, 465 N.E.2d 831, 834-35 (N.Y. 1984) ("[D]efendant, who concededly is not a student or employee at the campus, has identified no `property' or `liberty' interest in being present on campus grounds that he could be lawfully deprived of only after being accorded a hearing."). Before Moore was deprived of any possible protected interest that might have accrued once he became an admitted student, he had already been afforded all the process that was due him. In the persona non grata letter, the University gave him notice of the charges against him as well as an opportunity to challenge the letter's effects through a review, by the Assistant Vice-President of Student Affairs, of Dean Ricotta's decision.
Moore v. Ricotta, No. 01-7264, 2002 WL 398205 (2d Cir. Mar. 14, 2002).

  Despite his persona non grata status, plaintiff repeatedly entered the SUNYAB campus, resulting in the issuance of appearance tickets charging criminal trespassing and/or harassment. For example, plaintiff was seen on campus at a Library and Information Services Orientation on September 1, 1999; personally delivered a letter to Vice President Ricotta on July 10, 2000; staged a protest on campus on May 3, 2001;*fn1 obtained his transcript from the Office of Records and Registration on September 4, 2002;*fn2 and attended a swearing-in ceremony for attorneys on March 6, 2003. Dkt. #9, ¶¶ 3-6, 9.

  Plaintiff requested and received permission to attend the law school graduation of a friend on April 26, 2002, but was denied permission to attend his friend's swearing-in ceremony on March 6, 2003. Dkt. #9, ¶¶ 5, 8. Following receipt of a letter from Dennis Black, Vice President for Student Affairs at SUNYAB, informing him that his request for permission to attend the swearing-in ceremony was denied, plaintiff telephoned Black's office on February 21, 2003 and left the following message:
Tell Dennis that I will be going to the ceremony on campus on 3/6. Tell him that he is an asshole and that I'm going to punch him in the face.
Dkt. #9, Exh. G. Plaintiff attended the swearing-in ceremony despite his persona non grata status and was issued an appearance ticket charging him with Criminal Trespass in the Third Degree, a class B misdemeanor. Dkt. #9, ¶ 9; Dkt. #13, Exh. D. On April 9, 2003, Amherst Town Justice Mark Farrell dismissed the charge on the ground that the persona non grata letter upon which the charge was based failed to comport with the requirements of due process.*fn3 Dkt. #8, Exh. O. By letter dated April 11, 2003, Associate Vice President Ricotta sent plaintiff a letter advising plaintiff that as a result of the February 21, 2003 telephone call, he was "barred from participating in any University activity or entering onto or being in any property owned or operated by [SUNYAB]." Dkt. #9, Exh. I. The letter provided plaintiff with ten days in which he could "provide any written information to me about this incident that you wish to have considered before a final determination of your status is made." Dkt. #9, Exh. I. By "Affidavit in Support of a Notice of Appeal," the plaintiff advised Associate Vice President Ricotta that "[t]here is insufficient information in your letter to adequately form an opinion of belief." Dkt. #9, Exh. J. By letter dated July 9, 2003, Associate Vice President Ricotta issued a second persona non grata letter to the plaintiff, informing him that
 
Pursuant to the authority vested by State Law and as the designee of the Chief Administrative Officer of the State University of New York at Buffalo, I hereby revoke your privileges as a visitor to the campuses of the State University of New York at Buffalo for a minimum of one year from the date of this letter. Consequently, you are barred from participating in any University activity, or entering onto or being in any property owned or operated by the State University of New York at Buffalo. If you are found in violation of these conditions you stand liable to being charged with Criminal Trespass under Penal Law of the State of New York.
At the end of the one-year period, I will again review your status, based on your conduct and any information you provide me in writing, and make a decision to lift, modify, or continue your status.
This action is based upon information provided me regarding your conduct on February 21, 2003. On that date, you made a telephone call to the Office of the Vice President for Student Affairs, identified yourself, and informed the staff member who answered the call about recent actions that were known only to you. In that call, you threatened to assault the Vice President for Student Affairs. I have reviewed the University police report, interviewed the staff member who received the call, and considered materials you submitted on April 28th (Affidavit in Support of Notice of Appeal), in which you did not deny making the February telephone call and did not deny making a threat to assault the Vice President. Based on this review, I decided to continue the persona non grata status.
Should you have any questions regarding this letter, or new or additional information related to your campus status for my immediate review, please communicate with me in writing, as appropriate.
Dkt. #9, Exh. K.

  Plaintiff commenced the instant lawsuit, pro se, alleging thirteen causes of action. Dkt. #1. Liberally construed, plaintiff's complaint alleges that his preclusion from SUNYAB constitutes a deprivation of a liberty interest without due process, a denial of equal protection, and a violation of his rights under the First Amendment to the United States Constitution; that he was falsely arrested and maliciously prosecuted; and that SUNYAB has wrongfully denied him educational opportunity by preventing him from registering for graduate courses by placing a "stop check" on his record and by placing a finding of wrongdoing in his record. Dkt. #1.

  DISCUSSION AND ANALYSIS

  Summary Judgment

  Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff." Thomas v. Irvin, 981 F. Supp. 794, 799 (W.D.N.Y. 1997) (internal citations omitted).

  A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849 (1991).

  Once the moving party has met its burden of ?demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a `metaphysical doubt' concerning the facts, or on the basis of conjecture or ...


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