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Kenneth Wynder v. James Mcmahon


February 22, 2012


The opinion of the court was delivered by: Glasser, United States District Judge:

Memorandum and Order

On February 15, 2012, Kenneth Wynder ("plaintiff") filed a motion for reconsideration of the Court's Memorandum and Order dated January 31, 2012 (the "Jan. 31 Order") (Dkt. No. 222), affirming Magistrate Judge Pollak's denial of plaintiff's request to amend the complaint for a fourth time to include New York State as a defendant. See Motion to Amend the Complaint (Dkt. No. 206). This motion must be denied. As far as the Court can discern, plaintiff is not seeking reconsideration of the Jan. 31 Order but is instead asking the Court to revisit the dismissal of plaintiff's Title VII claim against defendant Superintendent James McMahon ("McMahon"), a matter that was not raised in plaintiff's motion to amend and was decided more than three years ago. See Memorandum & Order dated August 27, 2008 ("Aug. 27 Order") at 39 (Dkt. No. 141).

This request is not only unripe, it is utterly without merit. Plaintiff appears to be under the baffling misapprehension that his Title VII claim against McMahon was dismissed because he failed to demonstrate that McMahon acted as an employer.*fn1 This has never been at issue. Plaintiff's Title VII claim against McMahon was dismissed because binding Second Circuit precedent prohibits Title VII claims against individuals, even when sued in their official capacity, and courts will not construe Title VII claims against individuals as claims against the State. The Court carefully reviewed this controlling precedent in its Aug. 27 Order, see id. at 30-39, and it remains settled law in this circuit. See Sassaman v. Gamache, 566 F.3d 307 (2d. 2009) (reaffirming dismissal against an individual defendants because "individuals are not subject to liability under Title VII." (citing Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir.2004) )).

In the Jan. 31 Order, the Court specifically cautioned plaintiff that if he continued to file vexatious and duplicative claims for relief, the Court would consider sanctions pursuant to 28 U.S.C. § 1927-a caution that went unheeded. See Jan 31. Order at 3 & n.2. Title 28 U.S.C. § 1927 authorizes sanctions "when the attorney's actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose," and upon "a finding of conduct constituting or akin to bad faith." Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009) (citing 60 E. 80th St. Equities, Inc. v. Sapir (In re 60 E. 80th St. Equities, Inc.), 218 F.3d 109, 115 (2d Cir. 2000) (internal quotation marks omitted)). Plaintiff's motion for reconsideration falls well within these bounds. The motion fails to address the matter at issue, raises unripe and frivolous legal arguments, and was clearly prepared without regard for the rules of this Court*fn2 or this Court's prior orders.

The motion is, unfortunately, characteristic of plaintiff's filings in this case.

Before imposing sanctions, the Court must provide notice and an opportunity to be heard. Gollomp, 568 F.3d at 368. This requires that the party facing possible sanctions receive notification of (1) the source of authority for the sanctions being considered; and (2) the specific conduct or omission for which the sanctions are being considered. Id. (citation omitted). With regard to the opportunity to be heard, depending on the circumstances, "a full evidentiary hearing is not required, and the opportunity to respond by brief or oral argument may suffice." Id. (quotation omitted).

Plaintiff is directed to respond in writing on or before March 2, 2012, setting forth the reasons, if any, why counsel should not be required to personally satisfy, pursuant to 28 U.S.C. § 1927, defendants' costs and attorney's fees incurred in responding to the motion for reconsideration.


I. Leo Glasser United States Senior District Judge

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