13-213-cv

Schlafman v. State University of New York

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. 

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 21st 4 day of October, two thousand thirteen.

5

6 PRESENT:

7 DENNIS JACOBS,

8 CHESTER J. STRAUB,

9 Circuit Judges,

WILLIAM F. KUNTZ, II,* 10

11 District Judge.

12 _____________________________________

13

14 DAVID E. SCHLAFMAN,

15 Plaintiff-Appellant,

16

17 v. 13-213

18

19 STATE UNIVERSITY OF NEW YORK,

20 FARMINGDALE,

21 Defendant,

* Judge William F. Kuntz, II, of the United States

District Court for the Eastern District of New York, sitting

by designation.
1

2 L. ROBERT KING, JONATHAN

3 GILBRALTER, FRANK PELLEGRINI,

4 VICTOR BELLARD, VENKITASWANY

5 RAJU, LAMARR STANFORD, ROBERT

6 TEMME, MICHAEL SHEPHERD, MARVIN

7 FISCHER, W. HUBERT KEEN, BARRY

8 CAPELLA,

9 Defendants-Appellees.

10 _____________________________________

11

12 FOR PLAINTIFF-APPELLANT: David E. Schlafman, pro se,

13 Okeechobee, FL.

14

15 FOR DEFENDANTS-APPELLEES: Patrick J. Walsh, New York

16 State Office of the

17 Attorney General, New York,

18 NY.

19

20 Appeal from an order of the United States District

21 Court for the Eastern District of New York (Wexler, J.).

22 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

23 AND DECREED that the order of the district court is

24 AFFIRMED. 

25 Appellant David E. Schlafman, pro se, appeals from an

26 order denying his Federal Rule of Civil Procedure 60(b)

27 motion for relief from the district court’s judgment

28 dismissing his First Amendment claim of employment

29 retaliation under 42 U.S.C. § 1983. We assume the parties’

30 familiarity with the underlying facts, the procedural

31 history of the case, and the issues on appeal.

2
1 We review a district court decision granting or denying

2 a motion for relief from a final judgment pursuant to

3 Federal Rule of Civil Procedure 60(b) for abuse of

4 discretion. See Johnson v. Univ. of Rochester Med. Ctr.,

5 642 F.3d 121, 125 (2d Cir. 2011). “A court abuses it[s]

6 discretion when (1) its decision rests an error of law or a

7 clearly erroneous factual finding; or (2) cannot be found

8 within the range of permissible decisions.” Id. (citing

9 Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.

10 2001)). Rule 60(b) is “a mechanism for ‘extraordinary

11 judicial relief’ invoked only if the moving party

12 demonstrates ‘exceptional circumstances.’” Ruotolo v. City

13 of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting

14 Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir.

15 1994)). 

16 The standard for granting motions pursuant to Rule

17 60(b) is “strict, and reconsideration will generally be

18 denied unless the moving party can point to controlling

19 decisions or data that the court overlooked-matters, in

20 other words, that might reasonably be expected to alter the

21 conclusion reached by the court.” Shrader v. CSX Transp.,

22 Inc., 70 F.3d 255, 257 (2d Cir. 1995). “[A] motion to

3
1 reconsider should not be granted where the moving party

2 seeks solely to relitigate an issue already decided.” Id.

3 Such a motion “must be made within a reasonable time — and

4 for reasons (1), (2), and (3) no more than a year after the

5 entry of the judgment or order or the date of the

6 proceeding.” Fed. R. Civ. P. 60(c).

7 As an initial matter, the Rule 60(b) motion was timely

8 filed in the district court because it was filed on August

9 29, 2012, within one year from the entry of judgment on

10 August 31, 2011. However, an independent review of the

11 record and relevant case law confirms that the district

12 court properly denied Schlafman’s Rule 60(b) motion, and we

13 affirm for substantially the same reasons stated by the

14 district court in its December 10, 2012 decision. 

15 First, Schlafman’s assertion of alleged mistakes by the

16 district court regarding its specific findings of fact is an

17 impermissible attempt to relitigate the merits of the

18 underlying judgment, the appeal of which this Court has

19 already dismissed as frivolous. Similarly, Schlafman’s

20 claim that defense counsel improperly called witnesses to

21 testify that Schlafman had been disruptive is also a thinly22 veiled attempt to relitigate factual issues decided by the

4
1 district court in granting the motion for judgment as a

2 matter of law. 

3 With respect to Schlafman’s claims that the district

4 court erred by declining to admit certain evidence or allow

5 testimony from all of his prospective witnesses, by

6 permitting the confiscation of his cell phone, and by

7 allowing counsel to withdraw, Schlafman has failed to

8 demonstrate that those rulings rested on any legal errors or

9 were wrong - much less that they were abuses of the district

10 court’s broad discretion. 

11 Lastly, Schlafman claims that defense counsel engaged

12 in misconduct warranting vacatur of the judgment under Rule

13 60(b)(3). Relief under Rule 60(b)(3) is “cannot be granted

14 absent clear and convincing evidence of material

15 misrepresentations” or other misconduct. Fleming v. New

16 York Univ., 865 F.2d 478, 484 (2d Cir. 1989). First,

17 Schlafman claims that defense counsel attempted to

18 intimidate prospective witnesses by visiting the Flightline

19 building. Schlafman presents no evidence – let alone clear

20 and convincing evidence - supporting this charge or his

21 other vague charges of witness intimidation. Finally,

22 Schlafman claims that defense counsel made fraudulent

5
1 statements of law and fact during trial that had a

2 prejudicial bearing on its outcome. These claims of fraud

3 are, again, thinly-veiled attempts to relitigate the

4 district court’s evidentiary rulings and factual issues

5 underlying the merits. Moreover, Schlafman fails to

6 demonstrate by clear and convincing evidence that any

7 material misrepresentations were made. 

8 Having reviewed the parties’ arguments and the record,

9 we find that the district court did not abuse its

10 considerable discretion in denying Schlafman’s Rule 60(b)

11 motion. Accordingly, we AFFIRM the order of the district

12 court.

13

14 FOR THE COURT: 

15 CATHERINE O’HAGAN WOLFE, CLERK

16

6