10-4989-cv(L)
Adams v. N.Y. State Educ. Dep’t
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 28th day
of February, two thousand twelve.
Present:
ROBERT A. KATZMANN,
DENNY CHIN,
Circuit Judges.*
________________________________________________
MICHAEL EBEWO, JOSEPHINA CRUZ, JOANNE HART, JULIANNE POLITO,
THOMASINA ROBINSON, BRANDI SCHEINER,
Plaintiffs-Appellants,
TWANA ADAMS, MING BELL, DAVID BERKOWITZ, JONATHAN BERLYNE,
ANTHONY CAMINITI, JAIME CASTRO, GLORIA CHAVEZ, JAMES CULLEN, DIANE
DANIELS, LOUISA GANIS, ROSELYNE GISORS, LISA HAYES, MICHAEL
HOLLANDER, ELEANOR JOHNSON, JANE LEVINE, HAZEL MARTINEZ, MICHAEL
McLOUGHLIN, RAYMOND NUNGE, ALENA RADKE-GABRIEL, DENISE RUSSO, PAUL
SANTUCCI, JENNIFER SAUNDERS, JACQUELINE SAWYER, ALEX SCHREIBER, ALAN
SCHLESINGER, BARBARA SEGALL, LINDA SEIFFERT, DANIEL SMITH, GILDA TEEL,
EUSTOGIO TORRES-NOGUERAS, JACQUELINE WADE, MICHAEL WESTBAY,
GEORGE ZANETIS, MAURICIO ZAPATA, OLGA BATYREVA,
Plaintiffs,
*
The Honorable Susan L. Carney was originally a member of this panel but recused
herself from consideration of this appeal. The remaining two members of the panel, who are in
agreement, decide this appeal in accordance with Second Circuit Internal Operating Procedure E.
v. No. 10-4989-cv(L); 11-47-cv(CON)
NEW YORK STATE EDUCATION DEPARTMENT, A division/organ of the State of New
York, RICHARD MILLS, Commissioner of Education, TEACHER TENURE HEARING UNIT,
DEBORAH A. MARRIOTT, Manager, MICHAEL BLOOMBERG, CITY OF NEW YORK,
NEW YORK CITY DEPARTMENT OF EDUCATION, JOEL KLEIN, DAVID M. STEINER,
Comm’r of Educ.,
Defendants-Appellees,
MARYANN FAIRMAN, Supervisor, DOUGLAS BANTLE, STUART BAUCHNER, ALAN
BERG, MARY CRANGLE, HOWARD EDELMAN, DEBORAH M. GAINES, JOSHUA
JAVITZ, ERIC LAWSON, ANDREE MCKISSICK, RANDI LOWITT, EARL PFEFFER,
ARTHUR RIEGEL, MARTIN SCHEINMAN, JACK TILLEM, BONNIE SILBER-
WEINSTOCK, PAUL ZONDERMAN, ELEANOR M. GLANSTEIN,
Defendants.**
________________________________________________
For Plaintiffs-Appellants Michael NICHOLAS A. PENKOVSKY, PC, Law Offices of
Ebewo, Joanne Hart, Julianne Nicholas A. Penkovsky, Riverdale, N.Y.
Polito, Thomasina Robinson, and
Brandi Scheiner:
For Plaintiff-Appellant Josephina JOSEPHINA CRUZ, pro se, New York, N.Y.
Cruz:
For Defendants-Appellees New SUDARSANA SRINIVASAN, Assistant Solicitor
York State Education Department, General (Benjamin N. Gutman, Deputy Solicitor
Richard Mills, Teacher Tenure General, Barbara D. Underwood, Solicitor General, on
Hearing Unit, and Deborah A. the brief), for Eric T. Schneiderman, Attorney General
Marriott: of the State of New York, New York, N.Y.
For Defendants-Appellees Michael RONALD E. STERNBERG, Assistant Corporation
Bloomberg, City of New York, New Counsel (Leonard Koerner, Blanche Greenfield, of
York City Department of Education,
counsel, on the brief), for Michael A. Cardozo,
Joel Klein, and David M. Steiner:Corporation Counsel of the City of New York, New
York, N.Y.
________________________________________________
Appeal from the United States District Court for the Southern District of New York
(Marrero, J.).
**
The Clerk of Court is directed to amend the official caption as shown above.
2
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Plaintiffs-Appellants appeal from a judgment of the United States District Court for the
Southern District of New York (Marrero, J.) entered on November 30, 2010 (the “November 30
Judgment”), granting the defendants’ motion to dismiss the plaintiffs’ fourth amended complaint
(the “FAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and
denying plaintiffs’ request for leave to file an additional amended pleading. The November 30
Judgment was entered in accordance with an opinion and order dated November 18, 2010,
adopting Magistrate Judge Andrew J. Peck’s August 23, 2010 Report and Recommendation and
rejecting plaintiffs’ objections to that report. Adams v. N.Y. State Educ. Dep’t, 752 F. Supp. 2d
420, 424 (S.D.N.Y. 2010). We assume the parties’ familiarity with the underlying facts,
procedural history of the case, and the issues on appeal.
As a preliminary matter, this Court grants plaintiff-appellants Michael Ebewo, Joanne
Hart, Julianne Polito, Thomasina Robinson, and Brandi Scheiner’s motion to strike pro se
plaintiff-appellant Josephina Cruz’s (“Cruz”) supplemental appendix because it contains
documents that were not filed with the district court. See Int’l Bus. Machs. Corp. v. Edelstein,
526 F.2d 37, 45 (2d Cir. 1975) (“[A]bsent extraordinary circumstances, federal appellate courts
will not consider . . . evidence which [was] not part of the trial record.”).
We review de novo the district court’s dismissal of a complaint under Federal Rule of
Civil Procedure 12(b)(6), “construing the complaint liberally, accepting all factual allegations in
the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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570 (2007). Although all allegations contained in the complaint are assumed to be true, this
tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A
claim will have “facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Having conducted an independent and de novo review of the record in light of these
principles, we affirm the district court’s judgment for substantially the reasons stated by the
magistrate judge in his report and recommendation and by the district court in its thorough and
well-reasoned decision. Cruz argues that the district court erred by not allowing her to file
objections to the magistrate judge’s report and recommendation; however, Cruz was represented
by counsel at the time these objections were due, and her attorney filed objections on her behalf
by relying on the objections filed by counsel for the co-plaintiffs.1
We also deny Cruz’s motion to certify questions to the New York Court of Appeals. See
Penguin Group (USA) Inc. v. Am. Buddha, 609 F.3d 30, 42 (2d Cir. 2010). The issue before this
Court is not how the New York courts should interpret the state statutes governing the discipline
of teachers, but whether the discipline meted out to Cruz complied with the federal constitutional
standards of due process of law.
To the extent the Plaintiffs-Appellants argue that the district court should have granted
them an opportunity to file another amended complaint, we find no abuse of discretion in the
district court’s decision to deny this request. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d
184, 200 (2d Cir. 2007). The FAC was Plaintiff-Appellants’ fifth pleading and, with the
exception of the second amended complaint, all the complaints had been filed through counsel.
1
We also find that the Supreme Court’s recent decision in Snyder v. Phelps, 131 S. Ct.
1207 (2011), which was decided after the entry of judgment in this case, is not relevant to Cruz’s
First Amendment retaliation claim.
4
In addition, the dismissals of the second and third amended complaints had been accompanied by
detailed instructions from the magistrate judge and the district court regarding the deficiencies of
the pleadings.
We have reviewed the Plaintiffs-Appellants’ remaining arguments and find them to be
without merit. For the foregoing reasons, the judgment of the district court is hereby
AFFIRMED
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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Adams v. N.Y. State Educ. Dep't
Combined Opinion