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Frierson-Harris v. Hough

December 21, 2007

MICHAEL WESLEY FRIERSON-HARRIS, PH.D., A/K/A MICHAEL WESLEY HARRIS, PH.D., PLAINTIFF,
v.
JOSEPH C. HOUGH, JR., PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, L. ROBERT BATTERMAN, ESQ., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, EUGENE EISNER, ESQ., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, DAVID E. FRAZER, ESQ., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, JOHN F. FULLERTON, III, ESQ., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, EUAN K. CAMERON, PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, DAVID M. CARR., PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, ANA MARIA DIAZ-STEVENS, PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, JOHN A. MCGUCKIN, PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, CHRISTOPHER L. MORSE, PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, ANN B. ULANOV, PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, JANET R. WALTON, ED.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, RANDALL H. BALMER, PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, MICHAEL MALONEY, AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, NICK ZUHUSKY, AS AN OFFICER OF DESPATCH MOVING AND STORAGE COMPANY, INC., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, AND DESPATCH MOVING AND STORAGE COMPANY, INC., DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION & ORDER

Pro se plaintiff Michael Wesley Frierson-Harris, Ph.D. ("Harris"), a former professor at Union Theological Seminary ("Seminary"), brought this civil rights action against Seminary President Joseph C. Hough, Jr., Ph.D. ("Hough"); seven Seminary professors; Seminary attorneys L. Robert Batterman ("Batterman") and John F. Fullerton, III ("Fullerton"); attorneys David Frazer ("Frazer") and Eugene Eisner ("Eisner"), who once represented Harris; a Barnard College professor; an employee of the firm that managed Seminary buildings; a moving company retained by the Seminary; and the moving company's owner. Harris filed his original Complaint on March 21, 2005, his First Amended Complaint on July 27, 2005, and his Second Amended Complaint on May 5, 2006. This Opinion grants Batterman's motion for summary judgment, filed on October 5, 2007, and Eisner's motion for summary judgment, filed on October 17. With this decision, all of Harris's claims have been dismissed.

BACKGROUND

The lengthy procedural history of this case is described in an Opinion and Order of August 24, 2007. Frierson-Harris v. Hough, No. 05 Civ. 3077, 2007 WL 2428483 (S.D.N.Y. Aug. 24, 2007) ("August 2007 Opinion"). Familiarity with the August 2007 Opinion and all of the preceding opinions in this case is presumed. See Frierson-Harris v. Hough, No. 05 Civ. 3077, 2007 WL 1343843 (S.D.N.Y. May 8, 2007) ("May 2007 Opinion") (denying motion for reconsideration of rulings on motion to dismiss Second Amended Complaint); Frierson-Harris v. Hough, No. 05 Civ. 3077, 2006 WL 3511881 (S.D.N.Y. Dec. 5, 2006) ("December 2006 Opinion") (dismissing claims against defendants Maloney, Zuhusky, Despatch, and Balmer); Orders of December 5, 2006 (granting in part motions to dismiss); Frierson-Harris v. Hough, No. 05 Civ. 3077, 2006 WL 298658 (Feb. 7, 2006) ("February 2006 Opinion") (granting motions to dismiss original Complaint's claims against Batterman and Fullerton); Order of February 7, 2006 (granting motion to dismiss original Complaint's claims against Frazer).

Batterman's motion to dismiss the Second Amended Complaint was granted in part by an Order of December 5, 2006. The motion to dismiss was denied with respect to the claim against Batterman brought pursuant to New York State Human Rights Law § 296(6), and judgment was reserved on the claim against Batterman brought pursuant to 42 U.S.C. § 1981. Batterman answered the Second Amended Complaint on June 28, 2007. Contrary to Harris's contention in opposing the motions for summary judgment, Batterman admitted virtually none of the factual allegations in the Second Amended Complaint.

Eisner did not file or join in a motion to dismiss Harris's Second Amended Complaint. Eisner answered the Second Amended Complaint on July 5, 2006, denying most of the factual allegations. All of the claims that Harris pled against Eisner therefore remain pending. Construed liberally, the Second Amended Complaint brings claims against Eisner under the following statutes: 43 U.S.C. § 1985(2) and (3) and 22 N.Y. Comp. Codes R. & Regs. § 1200.3., a section of the New York Code of Professional Responsibility Disciplinary Rules.*fn1

Batterman and Eisner did not file timely motions for summary judgment. In the August 2007 Opinion, summary judgment was granted in full to the Seminary Defendants, leaving Batterman and Eisner the only defendants remaining in this action. By letter dated September 10, Batterman requested permission to move for summary judgment. This request was denied because it was not properly supported. Batterman renewed his request by letter dated September 20, and permission was granted by Order of September 24. By letter dated October 8, Eisner requested that the claims against him be dismissed. By Order dated October 9, he was granted permission to file a late motion for summary judgment. Batterman's and Eisner's motions for summary judgment were fully submitted on December 14.

The facts underlying this case were recited in the August 2007 Opinion. Because Frierson-Harris had received notice of and had acknowledged his obligation to submit evidence pursuant to Rule 56.1 of the Local Rules of Civil Procedure and Rule 56 of the Federal Rules of Civil Procedure, and because he had failed to submit a Local Rule 56.1 statement or any evidence, the August 2007 Opinion treated all of the Seminary defendants' As relevant to a § 1983 claim, there is no evidence that Eisner was a state actor or conspired or cooperated with a state actor to deprive Harris of his constitutional rights. See February Opinion, 2006 WL 298658, at *4-5. A § 1981 claim against Eisner would fail for the same reasons that the § 1981 claim against Batterman fails. See infra.

Rule 56.1 assertions as true to the extent that they were supported by the defendants' evidentiary submissions. Frierson-Harris, 2007 WL 2428483, at *1-2. The Order of September 24, 2007 which set an initial schedule for Batterman's motion for summary judgment, reminded Harris of his obligations under Local Rule 56.1 and Rule 56 of the Federal Rules of Civil Procedure. He has nevertheless failed to contest any particular facts set forth in the defendants' Rule 56.1 statements or to provide any evidence in support of his opposition to the motions for summary judgment. The facts asserted in Eisner's, Batterman's, and the Seminary Defendants' Local Rule 56.1 statements will therefore be considered as true for purposes of the present motions to the extent that they are supported by the defendants' evidentiary submissions. See LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 211 n.3 (2d Cir. 2001).

I. Batterman

Batterman, a partner at the law firm Proskauer Rose LLP, has served as outside labor counsel to Union Theological Seminary (the "Seminary") for over 25 years. The Seminary consulted Batterman regarding Harris's 1998 housing grievance, in which Harris requested that he and his family receive a new housing assignment. Batterman provided legal advice to the Seminary regarding the drafting of the December 1998 agreement, which resolved that grievance and assigned the Harris family to apartment 4W in Knox Hall ("Knox 4W"). Batterman did not have decision-making authority regarding the choice of apartment or any other substantive provision of the December 1998 agreement.

In 2002, after the Seminary decided to lease out Knox Hall to address its financial crisis, Hough, and not Batterman, drafted the Reassignment Procedures to be used for faculty housed in Knox Hall. When he learned that Harris was refusing to move out of his Knox Hall Apartment as requested by the Seminary, Batterman advised the Seminary regarding its drafting of letters to Harris, which informed him that he would be assigned to other housing if he did not accept the apartment that had been offered him in McGiffert Hall. Batterman was not, however, involved in the Seminary's decision regarding the choice of McGiffert Hall. He was similarly not involved in the following decisions by the Seminary Defendants: the decision to move Harris and his family to the only other available apartment, apartment 219 in Hastings Hall ("Hastings 219"); the decisions regarding the removal, storage, or disposition of the property that Harris had left in the hallway outside his apartment after being moved to Hastings 219; and the decision to issue a Petition for Harris's dismissal or to terminate Harris's employment.

II. Eisner

Eisner is the principal attorney in the law firm Eisner and Associates, P.C. He did not work for Harris prior to February 2004. On February 6, 2004, Harris engaged Eisner to pursue an appeal of the lawsuit he had brought in New York State Supreme Court against the Seminary's Board of Directors pursuant to N.Y. C.P.L.R. Article 78. Acting on Harris's behalf, Eisner filed a Notice of Appeal with the New York State Appellate Division on February 24. On or about March 9, he filed a motion in the Appellate Division requesting a stay of the eviction proceeding that the Seminary had brought against Harris. The Appellate Division ...


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