11-4923 Malcolm v. Honeoye Falls Lima Cent. Sch. Dist. 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held 1 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 2 York, on the 1 stday of April, two thousand thirteen. 3 4 PRESENT: 5 

### Richard C. Wesley, 6 

### Christopher F. Droney, 7 

### Circuit Judges, 8 

### Alison J. Nathan, * 9 

### District Judge. 10

_____________________________________ 11 12 Bernice Malcolm, 13 14 Plaintiff-Appellant , 15 16 v. 11-4923 17 18 Honeoye Falls Lima Central School District, 19 et al. , 20 21 Defendants-Appellees . 22 23

_____________________________________ 24 25 26 27

* The Honorable Alison J. Nathan, of the United States District Court for the Southern District of New York, sitting by designation.FOR PLAINTIFF-APPELLANT: Bernice Malcolm, pro se , West Henrietta, New 1 York. ** 2 Appeal from a judgment and order of the United States District Court for the Western 3 District of New York ( Larimer, J.). 4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 5 DECREEDthat the judgment and order of the district court are AFFIRMED

. 6 Appellant Bernice Malcolm, proceeding pro se , appeals the district court’s October 31, 7 2011 judgment denying her motion for leave to file a pro seemployment discrimination action 8 and dismissing her proposed complaint without leave to amend, on the basis that her claims were 9 barred by res judicata, and the district court’s November 14, 2011 order denying her Federal 10 Rule of Civil Procedure 60(b) motion for reconsideration, in which she also requested that the 11 district court recuse itself. See also Malcolm v. Bd. of Educ. of the Honeoye Falls-Lima Cent. 12 Sch. Dist. , 737 F. Supp. 2d 117, 120-21 (W.D.N.Y. 2010) (imposing filing injunction), aff’d, No. 13 10-4287, 2012 WL 6684565 (2d Cir. Dec. 26, 2012) (unpublished). We assume the parties’ 14 familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 15 We review de novothe district court’s denial of a motion for leave to file a complaint 16 pursuant to a filing injunction, which has the practical effect of a sua sponte dismissal. See 17 Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001); Madden v. Vt. Supreme Court , 236 Fed. 18 App’x 717, 718 (2d Cir. 2007). To survive dismissal, a complaint must plead “enough facts to 19 state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 20 (2007). Although all allegations contained in the complaint are assumed to be true, this tenet is 21

** Defendants have not been served, nor have they chosen to appear, in this appeal. 

### 2“inapplicable to legal conclusions.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). The Court 1 reads pro secomplaints with “special solicitude” and interprets them to raise the “strongest 2 [claims] that they suggest .” Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 474-75 (2d Cir. 3 2006) (per curiam) (internal quotations omitted). A district court generally should not dismiss a 4

pro secomplaint without granting the plaintiff an opportunity to amend, but such leave is not 5 necessary where amendment would be futile. See Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. 6 2000). 7 “[T]he doctrine of res judicata , or claim preclusion, provides that [a] final judgment on 8 the merits of an action precludes the parties or their privies from relitigating issues that were or 9 could have been raised in that action,” Maharaj v. BankAmerica Corp. , 128 F.3d 94, 97 (2d Cir. 10 1997) (internal quotations omitted), which is to say issues that emerge from the same “nucleus of 11 operative fact” as any claim actually asserted in the prior action. Interoceanica Corp. v. Sound 12 Pilots, Inc. , 107 F.3d 86, 90 (2d Cir. 1997). It is “settled that a federal court must give to a state13 court judgment the same preclusive effect as would be given that judgment under the law of the 14 State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ. , 465 15 U.S. 75, 81 (1984). 16 After conducting a de novoreview of the record, the decisions issued in Appellant’s prior 17 actions, and relevant case law, we affirm for substantially the same reasons stated by the district 18 court in its October 27, 2011 decision and order. To the extent Appellant intended to assert 19 claims based on the defendants’ continued perp etuation of certain allegedly discriminatory 20 employment policies and practices, we agree with the district court that she would lack standing 21 to assert any challenge to those policies and practices, see Town of Babylon v. Fed. Hous. Fin. 22



### 3Agency , 699 F.3d 221, 228-29 (2d Cir. 2012), and, in any event, the vague and conclusory nature 1 of her allegations regarding the defendants’ pres ent practices are insufficient to state plausible 2 discrimination and/or retaliation claims, see Iqbal , 556 U.S. at 678. We also conclude that the 3 district court properly dismissed Appellant’s co mplaint without leave to amend, and we find that 4 none of Appellant’s arguments in this appeal address the preclusive effect of state and federal 5 court decisions in her previous actions, or suggest that amendment would allow her to state 6 viable claims based on the defendants’ current employment policies and practices. Given 7 Appellant’s failure to demonstrate any likelihood of success on the merits of her claims, the 8 district court also properly denied her request for appointment of counsel. See Cooper v. A. 9 Sargenti Co. , 877 F.2d 170, 172-74 (2d Cir. 1989). 10 We review the district court’s denialof Appellant’s Rule 60(b) motion for 11 reconsideration and recusal motion for abuse of discretion. See Johnson v. Univ. of Rochester 12 Med. Ctr. , 642 F.3d 121, 125 (2d Cir. 2011); In re Basciano , 542 F.3d 950, 957 (2d Cir. 2008). 13 As we find no error in the district court’s de nial of Appellant’s leave-to-file motion or its 14 dismissal of her proposed complaint, we likewise find no abuse of discretion in its denial of 15 reconsideration. The district court also did not abuse its discretion in declining to recuse itself, 16 as a review of Appellant’s arguments reflects that her claims of bias are ultimately based only on 17 disagreement with the district court’s decisions. See Liteky v. United States , 510 U.S. 540, 555 18 (1994). 19 We have considered all of Appellant’s arguments and find them to be without merit. 20 Accordingly, we AFFIRMthe judgment and order of the district court. 21 22 FOR THE COURT: 23 Catherine O’Hagan Wolfe, Clerk 24



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