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United States District Court, W.D. New York

September 2, 2004.

JERRY W. MOORE, Plaintiff,
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


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.


  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 surmise." Bryant, 923 F.2d at 982. A party seeking to defeat a motion for summary judgment


must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as otherwise provided in Rule 56 of the Federal Rules of Civil Procedure, that there are specific factual issues that can only be resolved at trial.
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). Pursuant to Fed.R. Civ. P. 56(e), affidavits in support of or in opposition to a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Thus, affidavits "must be admissible themselves or must contain evidence that will be presented in an admissible form at trial." Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see also H.Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991) (hearsay testimony that would not be admissible if testified to at trial may not properly be set forth in an affidavit).

  Due Process Claims

  Plaintiff's first cause of action claims that

Where a facility is public in nature, an individual has a right to enter and remain in that building unless he engages in some unlawful activity. This right is part of the "liberty" of which a citizen cannot be deprived without due process of law.
Dkt. #1, ¶ 31. Plaintiff repeats this theme throughout his complaint, claiming that a persona non grata order "should only prohibit the violation of federal, state and local laws, or rules and regulations of the State of New York University at Buffalo," and should not prevent him from engaging in lawful activities on campus. Dkt. #1, ¶¶ 32, 39.

  As this Court has previously noted, the SUNYAB campus is an educational institution subject to section 6450 of the New York Education Law, which mandates that adoption of rules and regulations for the maintenance of public order on college campuses. The rules for the SUNY system are codified at 8 NYCRR § 535 et seq., and provide for ejection from campus as penalty for the violation of those rules. As the New York Court of Appeals recognized in People v. Leonard:

It is clear . . . that administrators of SUNY . . . have the general power to exclude from the campus persons who do not abide by the rules of conduct. A reasonable and practicable means of effectuating that policy would be to advise an individual that, due to past conduct, he or she is no longer welcome on the campus and will be subject to arrest for trespassing on return. Exclusion is a natural concomitant to the power to withdraw a person's authorization to remain on the college campus.
62 N.Y.2d 404, 409, 411 (1984).

  Before plaintiff can claim entitlement to the protections of the Fourteenth Amendment with respect to his ejection from campus pursuant to these rules, plaintiff must demonstrate that his ejection deprived him of either a liberty or a property interest. Board of Curators of the Univ. of Miss. v. Horowitz, 435 U.S. 78, 82 (1978). However, the Second Circuit Court of Appeals has already affirmed that as an individual with the status of a visitor at the time of the 1999 persona non grata determination, plaintiff "did not, at that time, have a Fourteenth Amendment liberty or property interest in being present on campus." Moore, 2002 WL 398205. As an individual with persona non grata status, plaintiff's Fourteenth Amendment interests were no more compelling at the time of the 2003 persona non grata determination. Thus, it is recommended that defendants' motion for summary judgment with respect to plaintiff's due process claims be granted. Equal Protection

  Throughout his complaint, plaintiff alleges that he was denied equal protection. Dkt. #1, ¶¶ 32, 33, 35, 38. Although plaintiff does not clearly state the basis for this claim, the Court interprets plaintiff's complaint as challenging the differentiation between visitors and students or employees in assessing the level of process required before a persona non grata determination can be issued.

  "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Claybourne v. Claybourne Living Center, Inc., 473 U.S. 432, 439 (1985). In analyzing a similar claim, the Hon. William M. Skretny, U.S.D.J., concluded that

the distinction between the process that is due to non-students as opposed to students under 8 N.Y.C.R.R. Part 535, is to be reviewed under the rational basis test. In other words, the fact that students are entitled to a pre-deprivation hearing and non-students are not must be rationally related to a legitimate end of the State University system.
Giatis v. Dimitri, No. 93-CV-714, aff'd 162 F.3d 1147 (2d Cir.), cert. denied, 525 U.S. 1026 (1998). Given the governmental interest in educating students and the fact that students have paid tuition in return for receiving an education, Judge Skretny found that there was a reasonable basis for distinguishing between students and non-students in determining the process due for violation of campus regulations and that the regulations were rationally related to the state's legitimate interest in educating students. Id. In accordance with this analysis, this Court recommends that the defendants' motion for summary judgment with respect to plaintiff's equal protection claims be granted. First Amendment

  Plaintiff alleges that his exclusion from public events held on university property and from use of university property for legitimate purposes violates his right under the First Amendment to the United States Constitution. Dkt. #1, ¶ 43.

  The Supreme Court of the United States has long recognized the "comprehensive authority" of school officials "consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). The Supreme Court has never denied the authority of a university to impose reasonable regulations compatible with its educational mission and has "not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings." Widmar v. Vincent, 454 U.S. 263, 267, n. 5 (1981). To the contrary, the Supreme Court has recognized and affirmed "a university's right to exclude even First Amendment activities that violate reasonable campus rules or substantially interfere with the opportunity of other students to obtain an education." Id. at 277, citing Healy v. James, 408 U.S. 169, 188-189 (1972).

  University regulations prohibiting, inter alia, threats of physical injury and harassment are clearly reasonable. See 8 N.Y.C.R.R. 535 et seq. & 536 et seq. Plaintiff has never disputed that he threatened to beat Dean Drydan with a baseball bat if his grade was not changed or that he threatened to punch Vice President Black in the face. Such threats of violence are outside the protection of the First Amendment. R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992). Plaintiff cannot claim a violation of his constitutional rights under the First Amendment by virtue of his exclusion from campus due to his threatening behavior.

  False Arrest and Malicious Prosecution

  The plaintiff complains that because of the persona non grata determination, he was repeatedly arrested and prosecuted for criminal trespass. Dkt. #1. The plaintiff notes that criminal trespass charges in Buffalo City Court and Amherst Town Court were dismissed. Dkt. #1.

  False arrest*fn4 and malicious prosecution*fn5 claims may be cognizable under 42 U.S.C. § 1983 if they implicate an individual's rights under the Fourth or Fourteenth Amendments to the United States Constitution. See Singer, 63 F.3d at 116-117; Cook v. Sheldon, 41 F.3d 73, 77, 79 (2d Cir. 1994). However, plaintiff's claim cannot survive summary judgment because there is no evidence to suggest that either of these defendants was involved in the decision to issue appearance tickets to the plaintiff or to prosecute him. "It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). The only evidence of personal involvement by the defendants is that of the civil administrative proceeding which banned the plaintiff from university property. As set forth above, this determination did not implicate a Fourteenth Amendment liberty or property interest. Such a determination does not constitute a deprivation of liberty sufficient to implicate plaintiff's Fourth Amendment rights. See Washington v. County of Rockland, 373 F.3d 310, 315-317 (2d Cir. 2004). In addition,

It is well settled . . . that a civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution. Nor does identifying plaintiff as the perpetrator of a crime, signing the summons or testifying at trial give rise to tort liability.
Rowe v. City of Rochester, 2002 WL 31974537, at *12-13 (W.D.N.Y. Dec. 23, 2002), quoting Du Chateau v. Metro-North Commuter R.R. Co., 253 A.D. 2d 128 (1st Dep't 1999) (internal citations omitted); see Ellison v. Sobeck-Lynch, 2000 WL 1047798 (W.D.N.Y. July 26, 2000) (same). Thus, even assuming for the sake of argument that the defendants personally communicated plaintiff's persona non grata status or presence on campus or threatening behavior to the New York State University Police, such actions would be insufficient to impute liability against these defendants under a false arrest or malicious prosecution cause of action. Accordingly, it is recommended that plaintiff's false arrest and malicious prosecution causes of action be dismissed. State Law Claims

  Plaintiff also challenges the "placement in plaintiff Jerry W. Moore's file and record an `illegal' finding of `wrongdoing'" and the "`unlawful' placement of an administrative `stop check' on his record." Dkt. #1, ¶¶ 37, 42. Vice President Ricotta avers that a stop check was placed upon him on June 11, 1999 to ensure that plaintiff's persona non grata status would be maintained, but denies that there is any indication of plaintiff's person non grata status or the circumstances surrounding that status on plaintiff's academic transcript. Dkt. #9, ¶ 19.

  These allegations do not give rise to a constitutional violation sufficient to support a cause of action pursuant to 42 U.S.C. § 1983. To the extent that they allege state law claims, it is recommended that the Court decline to exercise jurisdiction. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966); 28 U.S.C. § 1367(c). It is also recommended that the Court decline to exercise jurisdiction over plaintiff's potential state law claims for false arrest and malicious prosecution. See Id.


  For the foregoing reasons,*fn6 it is recommended that the defendants' motion for summary judgment (Dkt. #6), be GRANTED and the plaintiff's motions for summary judgment (Dkt. ##13, 14), be DENIED. Pursuant to 28 U.S.C. § 636(b)(1), it is hereby

  ORDERED, that this Report, Recommendation and Order be filed with the Clerk of the Court.

  ANY OBJECTIONS to this Report, Recommendation and Order must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report, Recommendation and Order in accordance with the above statute, Rule 72(b) of the Federal Rules of Civil Procedure 72(b), and Rule 72.3(a)(3) of the Local Rules for the Western District of New York.

  The district judge will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but were not presented to the magistrate judge in the first instance. See, e.g., Patterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988).

  Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. See, e.g., Thomas v. Arn, 474 U.S. 140 (1985); see also Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).

  The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge's Report, Recommendation and Order), may result in the District Judge's refusal to consider the objection.

  The Clerk is hereby directed to send a copy of this Report, Recommendation and Order to the plaintiff and the attorney for defendant.

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