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 O RDER ” ). A PARTY CITING 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Squa re, in the City of 2 New York, on the 6 t h da y of D e c e m b e r , two thousand twenty

- one . 3 4 PRESENT: 5 MICHAEL H. PARK , 6 WILLIAM J. NARDINI , 7 STEVEN J. MENASHI , 8 Circuit Judges. 9

_________________________________________ 10 11 Bernice Curry

- Malcolm , 12 13 Plaintiff

- Appellant, 14 15

v. 20

- 2808 16 17 Rochester City School District, Rochester City 18 School District Board of Education , 19 20 Defendants

- Appellees

. 21

_________________________________________ 22 23 24 FOR PLAINTIFF

- APPELLANT : Bernice Curry

- Malcolm
, pro se , 25 West Henrietta, NY

. 26 27 FOR DEFENDANTS

- APPELLEES: Alison K.L. Moyer, Steven G. 28 Carling, Acting General Counsel, 29 Rochester City School District 30 Department of Law, Rochester, NY

. 31 322 Appeal from a July 24, 2020 order of the United States District Court for the Western 1

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

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

DECREED that the order of the district court is AFFIRMED

. 4
Appellant Bernice Curry

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

court ’ s order denying her leave to file a proposed complaint. In 2017 and 2018, Malcolm filed 6
three complaints initiating lawsuits against her employer, the Rochester City School District 7
(“RCSD”)
, and other defendants, which the dis trict court designated Malcolm I
, II , and III

. The 8

district court dismissed these suits for failure to state a claim 1 and imposed a leave

- to

- file sanction 9
against Malcolm in Malcolm I

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

com plaint against RCSD and the Board of Education of RCSD , alleging claims under Title VII of 11
the Civil Rights Act of 1964, 42 U.S.C. § 2000e

- 2 et seq. (“Title VII”)
, the Age Discrimination in 12
Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”)
, 42 U.S.C. §§ 1981 and 1983 , and New York 13
state law, for race, age, and sex

- based disparate treatment, hostile work environment, retaliation, 14
breach of contract, and wrongful termination. After the district court denied Malcolm’s motion, 15
which it designate d Malcolm IV , this C ourt vacated the leave

- to

- file sanction and remanded to 16
permit Malcolm leave to amend some claims in Malcolm I and III. The district court consolidated 17
the remanded proceedings, reimposed the leave

- to

- file sanction, and dismissed Malco lm’s s econd 18

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

); Curr y

- 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 ).3 a mended c omplaint in that action for failure to state a claim ( Malcolm V )

. Malcolm’s appeal from 1
that decision is pending in this C ourt. Before us is Malcolm’s appeal of the district court’s decision 2
denying her motion for leave to file a pro posed complaint in Malcolm IV

. We assume the parties ’ 3
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 4
Malcolm makes three arguments on appeal. First , “[t]he district court abused its discretion 5
by improperly imposing a prefiling sanction against [Malcolm] without affording her the 6
opportunity to be heard

. ” Appellant’s Br. at 47. Second , her proposed complaint includes 7

sufficient allegations to state plausibl e claims

. See id . at 47

– 71. Third , Judge Larimer is biased 8
against Malcolm and “should be removed by this Court from any further matters regarding 9

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

First , Malcolm ’s challenge to the leave

- to

- file sanction that was in place at the time of the 11

district court’s decision is moot because this C ourt has already vacated that sanction. See Malcolm 12
v. Ass’n of Supervisors & Adm’rs of Rochester , 831 F. App’x 1, 6 (2d Cir. 2020) (vacating 13
sanction); United States v. Quattrone , 402 F.3d 304, 308 (2d Cir. 2005) ( explaining that appeal 14

must be dismissed as moot “ if an event occurs during the course of the proceedings or on appeal 15
that makes it impossible for the court to grant any effectual relief whatever to a prevaili ng party ” 16
(internal quotation marks omitted)). 17
Malcolm’s challenge to the district court’s denial of leave to file her proposed complaint
, 18

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

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

Malcolm , 831 F. App’x at 1

– 6 ; see also British Int’l Ins. Co. v. Seguros La Republica, S.A. , 354 21
F.3d 120, 123 (2d Cir. 2003) ( holding that an appeal is not moot where the litigant “retains some 224 interest in the case, so that a decision in [h er ] favor will inure to [h er ] benefit ” (internal quotation 1
marks omitted)). 2

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

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

. 4

See, e .g. , Appellant’s Br. a t 48 . Appellees counter that even if that were true, the C ourt should 5

still affirm the district court’s dismissal of the suit because all of the claims asserted in the proposed 6
complaint are barred by the doctrine of claim preclusion

. See Appellees’ Br. at 20. Malcolm 7
disagrees and contends that her claims are not barred by claim preclusion because the y are based 8
on events that post

- date the other actions , but she does not point to any specific allegations 9
supporting this argument

. S ee Reply Br. at 16. 10
We review the denial of leave to file, which has the practical effect of a sua sponte 11

dismissal, de novo

. See Malcolm v. Honeoye Falls Lima Cent . Sch. Dist. , 517 F. App’x 11, 12 (2d 12
Cir. 2013). Moreover, “ w e may affirm on any ground for which there is a record sufficient to 13
permit conclusions of law, including grounds not relied upon by the district co urt

. ” In re Arab 14

Bank , PLC Alien Tort Statute Litig. , 808 F.3d 144, 157

– 58 (2d Cir. 2015) (internal quotation marks 15

omitted ). 16

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

doctrine of claim preclusion. See Plaut v. Spendthrift Farm, Inc ., 514 U.S. 211, 231 (1995) 18
( recognizing that courts may raise claim preclusion sua sponte ). Under that doctrine, “[ a ] final 19
ju dgment on the merits of an action precludes the parties or their privies from relitigating issues 20

that were or could have been raised in that action.” Federated Dep’t Stores, Inc. v. Moitie , 452 21
U.S. 394, 398 (1981). Claim preclusion thus applies where “ (1) the previous action involved an 225 adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with 1

them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the 2
prior action.” Monahan v. N .Y.C. Dept. of Corr

. , 214 F.3d 275, 28 5 (2d Cir. 2000)

. 3

T hose requirements are satisfied here. First , the district court’s dismissals for failure to 4

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

399 n.3 ( “[A] dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) 6
is a judg ment on the merits.” (internal quotation marks omitted))

. Second, Malcolm was a party 7

to th e prior litigation. Third, Malcolm assert ed the same claims arising out of the same events in 8
the prior cases

. 9
In her proposed complaint, Malcolm asserts employment discrimination claims in violation 10

of Title VII, the ADEA, New York State Human Rights L aw (“NYSHRL”) , 42 U.S.C. §§ 1983 11
and 1988, the New York State Constitution’s equal protection clause , as well as c laims for breach 12

of contract, wrongful termination, and violation of “education law
, ” all premised on alleged 13
harassment of Malcolm by a supervisor, a performance review, RCSD’s failure to investigate 14
Malcolm’s discrimination complaints, and Malcolm’s layo ff

. See generally App’x 305. 15

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

violation of Title VII, the ADEA, NYSHRL , 42 U.S.C. § § 1983 and 1988, the New York State 17
Constitution’s equal protection clause, and brea ch of contract

— all premised on the same factual 18
allegations

. See Malcolm
, 831 F. App’x at 3

– 5; Curry

- Malcolm v. Rochester City Sch. Dist. , 835 19

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

2021 WL 4867006 , at *3

– 6, 8 (W.D.N.Y. Oct. 19, 2021)

. 21

To the extent that Malcolm attempt s to assert different claims in the proposed complaint

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

“education law”

— those claims are also precluded because they are rooted in the same series of 2
events as the prior complaints. See United States v. Tohono O’Odham Nation , 563 U.S. 307, 316 3
(2011) (“The now

- accepted test in preclusion law for determining whether two suits invol ve the 4
same claim or cause of action depends on factual overlap, barring claims arising from the same 5
transaction.” (internal quotation marks omitted)). 6

And a lthough the proposed complaint differ s from the prior complaints by naming the 7

Board of Educatio n as a defendant, the proposed complaint contain s only one vague and 8
conclusory allegation against the Board of Education , which is not sufficient to state a claim. See 9

App’x 309 (“The School District, its employees, officers, managers, supervisors, directors, chiefs, 10
superintendent of schools and board of education members and agents would join in, engage and 11
participate with [Malcolm’s supervisor] in her unlawful harassment, dis crimination, and retaliation 12
against Plaintiff.”) . The complaint otherwise does not distinguish between the defendants and 13
appears to rely on privity to assert claims against the Board of Education. All such claims are 14
precluded. See Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A. , 56 F.3d 359, 368 15
(2d Cir. 1995 ) ( explaining that privity exists where the newly named defendant was “known by 16
[the] plaintiff at the time of the first suit” and “has a sufficiently close relationship to the origin al 17
defendant to justify preclusion”)

. The claims in Malcolm’s proposed complaint are thus precluded, 18
so we affirm the district court’s denial of leave to file the proposed complaint. 19

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

[Malcolm]” due to judicial bias

. Appellant’s Br. at 76. This claim is meritless. The record does 21

not reflect “deep

- seated favoritism or antagonism that would make fair judgment impossible.” 227 Liteky v. U nited States , 510 U.S. 540, 555 (1994) ; see id

. ( “ [J] udicial remarks during the course of 1
a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, 2
ordinarily do not support a bias or partiality challenge.” ); Chen v. Chen Qualified Settle ment Fund
, 3
552 F.3d 218, 227 (2d Cir. 2009) ( holding that “ adverse rulings, without more, will rarely suffice 4

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

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

merit. Ac cordingly, we AFFIRM the order of the district court. 7

8 FOR THE COURT: 9 Catherine O = Hagan Wolfe, Clerk of Court 10