Perez De Leon-Garritt v. State University of New York at Buffalo ( 2019 )

18-1235
Perez de Leon-Garritt v. State University of New York at Buffalo
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 ASUMMARY 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 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 18th day of September, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
Maria M. Perez de Leon-Garritt,
Plaintiff-Appellant,
v. 18-1235
State University of New York at Buffalo, State of
New York, David F. Burganowski, Timothy P.
Janikowski, Sandro M. Sodano, Wendy M. Guyker,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF -APPELLANT: Maria M. Perez de Leon-Garritt, pro se,
Amherst, NY.
FOR DEFENDANTS -APPELLEES: Jeffrey W. Lang, Deputy Solicitor General,
Joseph M. Spadola, Assistant Solicitor
General of Counsel, for Letitia James,
Attorney General, State of New York,
Albany, NY.
Appeal from a judgment of the United States District Court for the Western District of New
York (Skretny, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Maria M. Perez de Leon-Garritt (“Garritt”) filed a 42 U.S.C. ' 1983 action
against the State University of New York at Buffalo (“SUNY Buffalo”), and certain administrators
and professors, alleging procedural due process and First Amendment retaliation claims. Garritt
asserted that she was improperly removed from the lab group section of one of her required courses
in SUNY Buffalo’s Rehabilitation Counseling Master’s Degree Program (the “Program”) and was
retaliated against for her in-class comments and subsequent complaints to the defendants. The
district court granted the defendants’ motion for summary judgment, and Garritt now appeals.
We assume the parties’ familiarity with the underlying facts, procedural history, and the issues on
appeal.
We review the district court’s grant of summary judgment de novo, “resolv[ing] all
ambiguities and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police
Dep’t, 706 F.3d 120, 127 (2d Cir. 2013) (per curiam).1 “Summary judgment is proper only when,
construing the evidence in the light most favorable to the non-movant, there is no genuine dispute
1
Unless otherwise indicated, in quoting cases, we omit all internal citations, quotation marks,
footnotes, and alterations.
as to any material fact and the movant is entitled to judgment as a matter of law.” Doninger v.
Niehoff, 642 F.3d 334, 344 (2d Cir. 2011).
To prevail on a procedural due process claim, a plaintiff must demonstrate (1) that she was
deprived of a cognizable interest in life, liberty, or property, (2) without receiving constitutionally
sufficient process. Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017).2 The district court
held that Garritt was not entitled to a pre-deprivation hearing because the decision to remove her
from her lab section was “random and unauthorized,” and, accordingly, a post-deprivation Article
78 proceeding, N.Y. Civ. Prac. L. & R. § 7801 et seq., provided her with the constitutionally
required process. Garritt argues that one of the defendants, Assistant Professor Sandro Sodano,
was “authorized” to remove her from the lab section, so she should have been given a pre-
deprivation hearing.
Ultimately, we need not resolve this point. If we were to find that the decision to remove
Garritt from the lab “was part of an established state procedure, such that the availability of a post-
deprivation remedy would not automatically satisfy due process, we would merely go on to
determine what process was due” by balancing the private and governmental interests affected, as
well as the risk of an erroneous deprivation. Rivera-Powell v. New York City Bd. of Elections,
470 F.3d 458, 466 (2d Cir. 2006) (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
Because we conclude that there is no genuine dispute that the process provided to Garritt was
adequate, we need not decide whether her termination was random and unauthorized. See Locurto
2
The parties do not dispute that professors employed by SUNY schools are state actors for
purposes of § 1983. See Hayut v. State Univ. of N.Y., 352 F.3d 733, 744 (2d Cir. 2003) (“We
think it clear that a professor employed at a state university is a state actor.”).
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v. Safir, 264 F.3d 154, 173 (2d Cir. 2001) (declining to “foray further into this legal thicket absent
some real need to address the question”).
Garritt’s legal interest in continuing to attend the lab was minimal, particularly given the
defendants’ openness to helping her find an alternative way to meet the lab requirement so she
could get her degree. By contrast, the state has a strong interest in maintaining flexibility to
protect the mental health of students in group-counseling labs and ensuring a healthy environment
in which they can learn.
In the context of a ten-day disciplinary suspension, the Supreme Court has held that an
“informal give-and-take” between the student and the administrative body sufficed when it gave
the student “the opportunity to characterize his conduct and put it in what he deems the proper
context.” Goss v. Lopez, 419 U.S. 565, 584 (1975). The Court approved of “far less stringent
procedural requirements in the case of an academic dismissal,” in part because the “educational
process is not by nature adversary; instead it centers around a continuing relationship between
faculty and students.” Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 86, 90 (1978).
These deprivations were far more severe than Garritt’s, who was not accused of wrongdoing and
could have fulfilled her lab requirement elsewhere, so the constitutionally required process is
correspondingly less.
Here, Garritt discussed at length with university staff the effect the group lab was having
on her mental health and the possibility of completing that work elsewhere. Before formally
informing her that she could not return to the lab, Professor Sodano emailed Garritt and told her
that they were trying to schedule a meeting with her to “keep the option of staying in group open,”
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but that there “needs to be a discussion of whether it is realistic for you to continue with the group
in the first place” because “[a]t this point, it is not sounding like a good idea for you to remain in
the group.” App. at 421. Rather than agree to a meeting before the next lab session where she
could be heard in person, Garritt responded only in writing, making clear that she wanted to stay
in the lab group. Only then did Professor Sodano inform Garritt that she could no longer continue
as a member of the group, reiterating his willingness to work with her to find an alternative and
offering to meet in person or talk on the phone. Garritt spoke with Professor Sodano on the phone
before the next lab session, and met with him in person shortly thereafter. No reasonable juror
could find that Garritt did not have notice and an opportunity to respond.
Given Garritt’s minimal legal interest in continuing to attend the lab, as opposed to
fulfilling her educational requirement in another manner, these informal emails and meetings,
together with the post-deprivation opportunity to challenge that decision in an Article 78
proceeding, provided her with the process required by the Fourteenth Amendment.
We also find no error in the district court’s dismissal of Garritt’s First Amendment
retaliation claim. To survive a motion for summary judgment on a First Amendment retaliation
claim, a plaintiff must set forth evidence demonstrating “(1) that the speech or conduct at issue
was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there
was a causal connection between the protected speech and the adverse action.” Garcia v. S.U.N.Y.
Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 106–07 (2d Cir. 2001). On the third prong, “[s]pecific
proof of improper motivation is required in order for plaintiff to survive summary judgment on a
First Amendment retaliation claim.” Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001).
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Garritt has not provided any specific proof that defendants were motivated by an improper
retaliatory purpose in dismissing her from the lab section. When, during her deposition, she was
asked to identify the reason she was removed from the lab group, she responded: “Still to this
moment, I don’t know. It doesn’t make sense after 650 something emails and documents, still I
don’t know.” App. at 75–76. On appeal, for the first time, Garritt cites certain criticisms
following a lab session that she speculates show an improper motive, but the cited criticisms do
not reference any protected speech. And in any event, the evidence showed that Garritt was
removed from the lab section based on the students’ negative responses to her statements in class
and in the lab section, which hindered the group’s productiveness and cohesion.
We have considered Garritt’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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