20-2808-cv

Curry-Malcolm v. Rochester

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 A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 6th 3 day of December, two thousand twenty-one.

4

5 PRESENT:

6 MICHAEL H. PARK,

7 WILLIAM J. NARDINI,

8 STEVEN J. MENASHI,

9 Circuit Judges.

10 _________________________________________

11

12 Bernice Curry-Malcolm,

13

14 Plaintiff-Appellant,

15

16 v. 20-2808

17

18 Rochester City School District, Rochester City 

19 School District Board of Education,

20

21 Defendants-Appellees.

22 _________________________________________

23

24

25 FOR PLAINTIFF-APPELLANT: Bernice Curry-Malcolm, pro se,

26 West Henrietta, NY.

27

28 FOR DEFENDANTS-APPELLEES: Alison K.L. Moyer, Steven G. 

29 Carling, Acting General Counsel, 

30 Rochester City School District 

31 Department of Law, Rochester, NY.

32
2

1 Appeal from a July 24, 2020 order of the United States District Court for the Western

2 District of New York (Larimer, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

4 DECREED that the order of the district court is AFFIRMED. 

5 Appellant Bernice Curry-Malcolm (“Malcolm”), proceeding pro se, appeals the district 

6 court’s order denying her leave to file a proposed complaint. In 2017 and 2018, Malcolm filed 

7 three complaints initiating lawsuits against her employer, the Rochester City School District 

8 (“RCSD”), and other defendants, which the district court designated Malcolm I, II, and III. The 

district court dismissed these suits for failure to state a claim1 9 and imposed a leave-to-file sanction 

10 against Malcolm in Malcolm I. Notwithstanding that sanction, Malcolm moved for leave to file a 

11 complaint against RCSD and the Board of Education of RCSD, alleging claims under Title VII of 

12 the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq. (“Title VII”), the Age Discrimination in 

13 Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), 42 U.S.C. §§ 1981 and 1983, and New York 

14 state law, for race, age, and sex-based disparate treatment, hostile work environment, retaliation, 

15 breach of contract, and wrongful termination. After the district court denied Malcolm’s motion, 

16 which it designated Malcolm IV, this Court vacated the leave-to-file sanction and remanded to 

17 permit Malcolm leave to amend some claims in Malcolm I and III. The district court consolidated 

18 the remanded proceedings, reimposed the leave-to-file sanction, and dismissed Malcolm’s second 

1 Malcolm v. Ass’n of Supervisors & Adm’r s of Rochester, 388 F. Supp. 3d 242 (W.D.N.Y. 2019), 

aff’d in part, vacated in part, remanded, 831 F. App’x 1 (2d Cir. 2020) (Malcolm I); Malcolm v. Rochester 

City Sch. Dist., 388 F. Supp. 3d 257 (W.D.N.Y. 2019), aff’d, 828 F. App’x 810 (2d Cir. 2020) (Malcolm 

II); Curry-Malcolm v. Rochester City Sch. Dist., 389 F. Supp. 3d 189 (W.D.N.Y. 2019), aff’d in part, 

vacated in part, remanded, 835 F. App’x 623 (2d Cir. 2020) (Malcolm III).
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1 amended complaint in that action for failure to state a claim (Malcolm V). Malcolm’s appeal from 

2 that decision is pending in this Court. Before us is Malcolm’s appeal of the district court’s decision 

3 denying her motion for leave to file a proposed complaint in Malcolm IV. We assume the parties’

4 familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

5 Malcolm makes three arguments on appeal. First, “[t]he district court abused its discretion 

6 by improperly imposing a prefiling sanction against [Malcolm] without affording her the 

7 opportunity to be heard.” Appellant’s Br. at 47. Second, her proposed complaint includes 

8 sufficient allegations to state plausible claims. See id. at 47–71. Third, Judge Larimer is biased 

9 against Malcolm and “should be removed by this Court from any further matters regarding 

10 [Malcolm].” Id. at 76. We address each argument in turn.

11 First, Malcolm’s challenge to the leave-to-file sanction that was in place at the time of the 

12 district court’s decision is moot because this Court has already vacated that sanction. See Malcolm 

13 v. Ass’n of Supervisors & Adm’rs of Rochester, 831 F. App’x 1, 6 (2d Cir. 2020) (vacating 

14 sanction); United States v. Quattrone, 402 F.3d 304, 308 (2d Cir. 2005) (explaining that appeal 

15 must be dismissed as moot “if an event occurs during the course of the proceedings or on appeal 

16 that makes it impossible for the court to grant any effectual relief whatever to a prevailing party” 

17 (internal quotation marks omitted)). 

18 Malcolm’s challenge to the district court’s denial of leave to file her proposed complaint, 

19 however, presents a live controversy because the prior panel did not mention, much less vacate, 

20 the district court’s order denying leave to file the proposed Malcolm IV complaint. See generally 

21 Malcolm, 831 F. App’x at 1–6; see also British Int’l Ins. Co. v. Seguros La Republica, S.A., 354 

22 F.3d 120, 123 (2d Cir. 2003) (holding that an appeal is not moot where the litigant “retains some 
4

1 interest in the case, so that a decision in [her] favor will inure to [her] benefit” (internal quotation 

2 marks omitted)).

3 Second, Malcolm argues that the district court improperly denied her motion for leave to 

4 file a proposed complaint because she “sufficiently alleges” claims in the proposed complaint. 

5 See, e.g., Appellant’s Br. at 48. Appellees counter that even if that were true, the Court should 

6 still affirm the district court’s dismissal of the suit because all of the claims asserted in the proposed 

7 complaint are barred by the doctrine of claim preclusion. See Appellees’ Br. at 20. Malcolm 

8 disagrees and contends that her claims are not barred by claim preclusion because they are based 

9 on events that post-date the other actions, but she does not point to any specific allegations 

10 supporting this argument. See Reply Br. at 16. 

11 We review the denial of leave to file, which has the practical effect of a sua sponte

12 dismissal, de novo. See Malcolm v. Honeoye Falls Lima Cent. Sch. Dist., 517 F. App’x 11, 12 (2d 

13 Cir. 2013). Moreover, “we may affirm on any ground for which there is a record sufficient to 

14 permit conclusions of law, including grounds not relied upon by the district court.” In re Arab 

15 Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 157–58 (2d Cir. 2015) (internal quotation marks 

16 omitted). 

17 We affirm here because the claims raised in the proposed complaint are barred by the 

18 doctrine of claim preclusion. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 231 (1995) 

19 (recognizing that courts may raise claim preclusion sua sponte). Under that doctrine, “[a] final 

20 judgment on the merits of an action precludes the parties or their privies from relitigating issues 

21 that were or could have been raised in that action.” Federated Dep’t Stores, Inc. v. Moitie, 452 

22 U.S. 394, 398 (1981). Claim preclusion thus applies where “(1) the previous action involved an 
5

1 adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with 

2 them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the 

3 prior action.” Monahan v. N.Y.C. Dept. of Corr., 214 F.3d 275, 285 (2d Cir. 2000). 

4 Those requirements are satisfied here. First, the district court’s dismissals for failure to 

5 state a claim in Malcolm I, II, III, and V were judgments on the merits. See Moitie, 452 U.S. at 

6 399 n.3 (“[A] dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) 

7 is a judgment on the merits.” (internal quotation marks omitted)). Second, Malcolm was a party 

8 to the prior litigation. Third, Malcolm asserted the same claims arising out of the same events in 

9 the prior cases.

10 In her proposed complaint, Malcolm asserts employment discrimination claims in violation 

11 of Title VII, the ADEA, New York State Human Rights Law (“NYSHRL”), 42 U.S.C. §§ 1983 

12 and 1988, the New York State Constitution’s equal protection clause, as well as claims for breach 

13 of contract, wrongful termination, and violation of “education law,” all premised on alleged 

14 harassment of Malcolm by a supervisor, a performance review, RCSD’s failure to investigate 

15 Malcolm’s discrimination complaints, and Malcolm’s layoff. See generally App’x 305.

16 In Malcolm I, II, and III, Malcolm asserted the same employment discrimination claims in 

17 violation of Title VII, the ADEA, NYSHRL, 42 U.S.C. §§ 1983 and 1988, the New York State 

18 Constitution’s equal protection clause, and breach of contract—all premised on the same factual 

19 allegations. See Malcolm, 831 F. App’x at 3–5; Curry-Malcolm v. Rochester City Sch. Dist., 835 

20 F. App’x 623, 626 & n.4 (2d Cir. 2020); Malcolm v. Ass’n of Supervisors & Adm’rs of Rochester, 

21 2021 WL 4867006, at *3–6, 8 (W.D.N.Y. Oct. 19, 2021). 

22 To the extent that Malcolm attempts to assert different claims in the proposed complaint—
6

1 including wrongful termination in violation of a collective bargaining agreement and violation of 

2 “education law”—those claims are also precluded because they are rooted in the same series of 

3 events as the prior complaints. See United States v. Tohono O’Odham Nation, 563 U.S. 307, 316 

4 (2011) (“The now-accepted test in preclusion law for determining whether two suits involve the 

5 same claim or cause of action depends on factual overlap, barring claims arising from the same 

6 transaction.” (internal quotation marks omitted)). 

7 And although the proposed complaint differs from the prior complaints by naming the 

8 Board of Education as a defendant, the proposed complaint contains only one vague and 

9 conclusory allegation against the Board of Education, which is not sufficient to state a claim. See

10 App’x 309 (“The School District, its employees, officers, managers, supervisors, directors, chiefs, 

11 superintendent of schools and board of education members and agents would join in, engage and 

12 participate with [Malcolm’s supervisor] in her unlawful harassment, discrimination, and retaliation 

13 against Plaintiff.”). The complaint otherwise does not distinguish between the defendants and 

14 appears to rely on privity to assert claims against the Board of Education. All such claims are 

15 precluded. See Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 368 

16 (2d Cir. 1995) (explaining that privity exists where the newly named defendant was “known by 

17 [the] plaintiff at the time of the first suit” and “has a sufficiently close relationship to the original 

18 defendant to justify preclusion”). The claims in Malcolm’s proposed complaint are thus precluded, 

19 so we affirm the district court’s denial of leave to file the proposed complaint. 

20 Third, Malcolm argues that Judge Larimer must recuse from “any further matters regarding 

21 [Malcolm]” due to judicial bias. Appellant’s Br. at 76. This claim is meritless. The record does 

22 not reflect “deep-seated favoritism or antagonism that would make fair judgment impossible.” 
7

1 Liteky v. United States, 510 U.S. 540, 555 (1994); see id. (“[J]udicial remarks during the course of 

2 a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, 

3 ordinarily do not support a bias or partiality challenge.”); Chen v. Chen Qualified Settlement Fund, 

4 552 F.3d 218, 227 (2d Cir. 2009) (holding that “adverse rulings, without more, will rarely suffice 

5 to provide a reasonable basis for” a bias claim). 

6 We have considered the remainder of Malcolm’s arguments and find them to be without 

7 merit. Accordingly, we AFFIRM the order of the district court.

8

9 FOR THE COURT: 

10 Catherine O=Hagan Wolfe, Clerk of Court