KALDERON v. FINKELSTEIN No. 11-1227-cv.
NURIT KALDERON, PH.D., Plaintiff-Appellant, v. ROBERT FINKELSTEIN, PH.D., in his individual and official capacities, DIVISION OF EXTRAMURAL RESEARCH NINDS, TIJUANNA E. DECOSTA, in her individual and official capacities, EDWARD D. MYRBECK, in his individual and official capacities, JOSEPH J. PANCRAZIO, PH.D., in his individual and official capacities, MAXINE DAVIS-VANLUE, in her individual and official capacities, PATRICIA A. KVOCHACK, in her individual and official capacities, KAREN PLÁ, in her individual and official capacities, Defendants-Appellees.
United States Court of Appeals, Second Circuit.
August 30, 2012.
NURIT KALDERON, Pro Se, New York, New York, for Plaintiff-Appellant.
ALICIA M. SIMMONS, Assistant United States Attorney ( Sarah S. Normand, Assistant United States Attorney, of counsel), for Preet Bharara, United States Attorney for the Southern District of New York, New York, for Defendants-Appellees.
PRESENT: JOSÉ A. CABRANES, CHESTER J. STRAUB, PETER W. HALL, Circuit Judges.
Plaintiff-appellant, Nurit Kalderon, proceeding pro se, appeals from a judgment of the District Court granting the motion of the defendants-appellees to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, her complaint alleging violations of the First Amendment, Fifth Amendment, 42 U.S.C §§ 1985(2) and 1986, and various provisions of the Privacy Act of 1974, 5 U.S.C. § 552a et seq.
We review de novo a district court's grant of a motion to dismiss under Rule 12(b)(6), "accepting as true all allegations in the complaint and drawing all reasonable inferences in favor of the non-moving party." Gonzalez v. Hasty,
Following an independent, de novo review of the complaint, we agree with the District Court that Kalderon failed to state claims under the First Amendment, the Fifth Amendment, and 42 U.S.C. § 1985(2), substantially for the reasons set forth in Magistrate Judge Katz's exhaustive and well-reasoned Report and Recommendation of March 10, 2010, recommending dismissal of Kalderon's claims, and Judge Sullivan's thoughtful orders of August 25, 2010, and January 28, 2011, adopting Magistrate Judge Katz's recommendations and sua sponte granting summary judgment on Kalderon's claim for amendment of records pursuant to 5 U.S.C. § 552a(d).
I. Kalderon's Procedural Arguments Are Without Merit
As an initial matter, there is no merit in Kalderon's argument that the magistrate judge improperly amended her complaint by "culling from [it] only those facts relevant to [her] claims." We have held that when, as here, "a complaint does not comply with the requirement that it be short and plain, the court has the power, on its own initiative . . ., to strike any portions that are redundant or immaterial, . . . or to dismiss the complaint." Salahuddin v. Cuomo,
We take this opportunity to observe that the District Court would have acted well within its discretion in dismissing the complaint (with leave to replead) for failure to comply with Rule 8(a)(2) and (d)(1) of the Federal Rules of Civil Procedure.
Equally without merit is Kalderon's argument that Judge Sullivan failed to conduct a de novo review of the Report and Recommendation, as required by Rule 72(b)(3) of the Federal Rules of Civil Procedure. Having ourselves conducted such a de novo review, we conclude that the District Court properly adopted the magistrate judge's recommendations. To the extent that any of Kalderon's objections were not specifically addressed by the District Court, this is the result of their lack of specificity. See Mario v. P&C Food Mkts., Inc,
Finally, there is no merit in Kalderon's argument that the District Court improperly granted summary judgment sua sponte on the portion of her eighth cause of action relating to the amendment of records. We have explained that "a district court may, on an appropriate record, grant summary judgment sua sponte—after giving the party against which the court is contemplating such a decision notice and an opportunity to present evidence and arguments in opposition." NetJets Aviation, Inc. v. LHC Commc'ns, LLC,
II. Kalderon's Substantive Arguments Are Without Merit
A. Due Process Claims
The District Court properly dismissed Kalderon's Fifth Amendment due process claims because she failed to allege the infringement of a constitutionally protected property or liberty interest.
Insofar as Kalderon alleged that she had a property interest in a federal research grant (the "Grant"), the Supreme Court has explained that "[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it." Bd. of Regents of State Colls. v. Roth,
The District Court also properly held that Kalderon did not allege a deprivation of her liberty interest in her professional reputation. In order to state a claim for deprivation of an intangible legal right to one's reputation, commonly known as a "stigma plus" claim, a plaintiff must allege facts showing both "(1) the utterance of a statement about her that is injurious to her reputation, that is capable of being proved false, and that . . . she claims is false, and (2) some tangible and material state-imposed burden . . . in addition to the stigmatizing statement." Velez v. Levy,
B. First Amendment Claim
The District Court properly dismissed Kalderon's claim that her First Amendment rights were violated when the defendants retaliated against her for complaining of the mismanagement of Grant funds.
To state a First Amendment retaliation claim, Kalderon must show that: "(1) the expression at issue was constitutionally protected, (2) the alleged retaliatory action adversely affected [her] constitutionally protected expression, and (3) a causal relationship existed between the constitutionally protected expression and the retaliatory action." Camacho v. Brandon,
Kalderon stated in her complaint that she was the principal investigator on a federally funded grant and she complained of the alleged mishandling of Grant funds pursuant to her obligations as principal investigator. Consequently, the District Court properly concluded that Kalderon was acting pursuant to her "official duties," and therefore the First Amendment did not protect her from employer discipline as a result of her speech. See id.
C. Section 1985(2) Claim
The District Court properly dismissed Kalderon's claim for violation of 42 U.S.C. § 1985(2). That statute forbids "two or more persons . . . [from] conspir[ing] to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, . . . or to injure such party or witness in his person or property on account of his having so attended or testified." 42 U.S.C. § 1985(2). Kalderon's complaint primarily alleged that certain defendants conspired to interfere with her pursuit of federal "whistleblower" litigation against a grantee institution, and that one of the defendants, Kvochak, failed adequately to respond to a non-party subpoena for certain documents in relation to her federal litigation. Her claim fails, however, because she did not "provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end." Webb v. Goord,
We have considered all of Kalderon's arguments on appeal and find them each to be without merit. The judgment of the District Court is therefore
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