Blum v. Schlegel
| Decision Date | 01 July 1993 |
| Docket Number | No. 91-CV-633S.,91-CV-633S. |
| Parties | Jeffrey M. BLUM, Plaintiff, v. John H. SCHLEGEL, et al., Defendants. |
| Court | U.S. District Court — Western District of New York |
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James Ostrowski, Buffalo, NY, for plaintiff and Jeffrey M. Blum, plaintiff pro se.
Robert Abrams, New York State Atty. Gen., for defendants (Douglas S. Cream, Buffalo, NY, of counsel).
JEFFREY M. BLUM v. JOHN H. SCHLEGEL, et al
Docket No. 91-CV-633S
TABLE OF CONTENTS
INTRODUCTION .......................................................... 716
FACTS ................................................................. 716
DISCUSSION ............................................................ 721
A. First Amendment Claim — Objections and Contentions ................. 721
B. Preliminary Injunction ............................................. 722
1) Irreparable Harm ............................................... 723
a) First Amendment ............................................. 723
b) Eleventh Amendment Immunity/Qualified Immunity Argument ..... 724
c) Destruction of Professorial Career Argument ................. 726
2) Likelihood of Success on the Merits — First Amendment Claim .... 728
a) Protected Speech ............................................ 728
b) Adverse Employment Decision ................................. 730
c) Motivating Factor ........................................... 732
3) Likelihood of Success on the Merits — Due Process Claim ........ 733
a) "Untimeliness" Claim ........................................ 733
b) "Arbitrariness" Claim ....................................... 735
4) Sufficiently Serious Question/Balance of Hardships ............. 736
CONCLUSION ............................................................ 737
ORDER ................................................................. 737
DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(b)(1)(B) this Court referred all dispositive motions in the above captioned case to the Hon. Carol E. Heckman, United States Magistrate Judge for the Western District of New York for report and recommendation. On December 14, 1992, Magistrate Judge Heckman filed her Report and Recommendation to plaintiff's motion for preliminary injunction.
On December 28, 1992, plaintiff filed "Objections to Magistrate Judge Heckman's Report and Recommendation on Plaintiff's Motion for Preliminary Injunction" ("pl. obj."). Defendants filed a "Memorandum in Response to Plaintiff's Objections to Magistrate Judge's Report and Recommendation on Plaintiff's Motion for Reinstatement" ("def. memo.") on January 4, 1993. Plaintiff filed a "Reply to Defendants' Response to Plaintiff's Objections to Magistrate Judge Heckman's Report and Recommendation sic on Plaintiff's Motion for Preliminary Injunction" ("pl. reply") on January 19, 1993.
Oral argument on plaintiff's objections was heard by this Court on February 19, 1993.
28 U.S.C. § 636(b)(1)(B) provides that a district judge may designate a magistrate judge to submit proposed findings of fact and recommendations for the disposition of dispositive motions. 28 U.S.C. § 636(b)(1)(C) permits the parties to file and serve written objections to such proposed findings and recommendations. Upon the filing of timely objections by a party, the district court's review of a report and recommendation must be de novo, but only as to those portions of the report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1)(C). See also Collins v. Foreman, 729 F.2d 108, 112 (2d Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984). The district court is not required to conduct a de novo hearing on the matter, but must arrive at its own independent conclusion about those portions of the magistrate judge's report and recommendation to which objection is made. E. River Sav. Bank v. Secretary of Hous. and Urban Dev., 702 F.Supp. 448 (S.D.N.Y. 1988). Following a de novo review, this Court accepts Magistrate Judge Heckman's Report and Recommendation as articulated herein.
Plaintiff states that "Magistrate Judge Heckman's Report selectively summarizes materials from a large factual record ... with the effect of portraying plaintiff in a negative light." (pl. obj. at 42). Plaintiff makes a general objection to the "summary."1 (pl. obj. at 43). Plaintiff also makes numerous references to Magistrate Judge Heckman's "omissions" of evidence and detail from the Report and Recommendation but fails to apprise this Court of objections with any particularity that would allow this Court to determine exactly what plaintiff believes to be "omissions." At several points plaintiff does not dispute the facts as articulated by Magistrate Judge Heckman, but requests that this Court expand on such facts to include his subjective impressions of what he says he thought was occurring at the time.2
Local Rule 30(a)(3) states in pertinent part:
The written objections to a magistrate judge's report and recommendation shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objections and shall be supported by legal authority.
The foregoing is intended as an illustration of the type of "objections" plaintiff makes to factual findings and is by no means exhaustive. It appears that plaintiff does not specifically object to the Magistrate Judge's findings of fact but rather objects only to the application of the facts to the law. In light of the foregoing and following a de novo review of the record, as reflected in this Court's detailed account below, this Court finds Magistrate Judge Heckman's articulation of the facts to be sufficiently accurate and complete. Thus, this Court adopts the facts as set forth in the Report and Recommendation.
In September of 1985, plaintiff joined the faculty of the State University of New York at Buffalo Law School ("Law School") as an associate professor, which was considered a tenure track position. (Appendix to Complaint ("A") at A-9). Although the record is sketchy as to what transpired from the time plaintiff arrived at the Law School until the culmination of events that prompted this suit, it appears that plaintiff published two articles in the "Generation," a SUNY Buffalo student magazine. Both articles, one published in January 1988 and the other in September 1989, expressed the view that possession or consumption of marijuana should not result in the punishments currently inflicted for such crimes. (Plaintiff's Supplementary Affidavit in Opposition to Defendants' Motion to Dismiss the Amended Complaint and in Support of Plaintiff's Motion for Preliminary Injunction ("pl. supp. aff.") at Ex. K). Plaintiff also participated in a debate relating to the propriety of civil disobedience. (Id.).
Beginning in July of 1988, plaintiff's colleagues began to express doubts concerning plaintiff's suitability for promotion and tenure. (A-52 — A-61). In response to the doubts expressed, on September 13, 1989, David Filvaroff, then Dean of the Law School, informed plaintiff that his promotion and tenure consideration could be deferred one year. If plaintiff chose not to accept the deferral option, the academic year 1990-1991 would be the year plaintiff would be considered for promotion and tenure. . If he were denied tenure, he would be informed that the academic year 1991-1992 would be his last.3 (Id.).
Apparently, plaintiff's prospects for tenure were not discussed again until Dean Filvaroff called an informal meeting of plaintiff's "committee" on October 1, 1990. (A-11). During this meeting, plaintiff was advised that if he applied for tenure in the near future, it likely would be denied because of "very weak scholarship." (A-11-A-16). Extensive correspondence between plaintiff and certain members of the Law School faculty followed. (See A-11-A-30, A-32-A-51, A-72-A-95, A-100-A-115; def. supp. aff. exs. B — Y).
Initially, plaintiff's letters expressed "surprise" at the outcome of the October meeting, notwithstanding the fact that as early as July of 1988 plaintiff was informed that the likelihood of his receiving tenure was not as promising as he may have hoped. (A-11-A-16). In a letter to Dean Filvaroff dated October 16, 1990, plaintiff attacked defendants' handling of the October 1, 1990 meeting as highly irregular and requested that his tenure evaluation go forward and be scheduled for March 15, 1991. (Id.).
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