18‐2477
Fisher v. Richmond



                                   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 COURTʹS 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
ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 8th day of May, two thousand nineteen.

PRESENT:
                    AMALYA L. KEARSE,
                    RICHARD C. WESLEY,
                    DENNY CHIN,
                               Circuit Judges.
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BYRON RANDALL FISHER,
              Plaintiff‐Appellant,

                              v.                                                     18‐2477‐cv

RICHMOND, THE AMERICAN
INTERNATIONAL UNIVERSITY IN
LONDON, INC.,
              Defendant‐Appellee.

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FOR PLAINTIFF‐APPELLANT:                                      Byron Randall Fisher, pro se, Peekskill, New
                                                              York.
FOR DEFENDANT‐APPELLEE:                  Samuel Feldman, Orloff, Lowenbach,
                                         Stifelman & Siegel, P.A., Morristown, New
                                         Jersey.

             Appeal from a judgment of the United States District Court for the

Southern District of New York (Abrams, J.).

             UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

             Plaintiff‐appellant Byron Randall Fisher, proceeding pro se, appeals from a

judgment entered August 20, 2018 in favor of defendant‐appellee Richmond, The

American International University in London, Inc. (ʺRichmondʺ), dismissing his

complaint. By opinion and order dated August 20, 2018, the district court granted

Richmondʹs motion for summary judgment. We assume the parties= familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

             In his complaint in this diversity case, Fisher alleged that Richmond

breached its contract with him by unfairly giving him a failing grade on his thesis,

which prevented him from being awarded a Master of Arts degree. Instead, Richmond

awarded Fisher a post‐graduate certificate issued to students who receive a failing

grade on their thesis or do not submit one but maintain a cumulative 3.0 grade point

average. Fisher contended that Richmond breached its contract with him by (1) not

adhering to the grading criteria set forth in the student handbook; (2) not recognizing

his attempts to appeal his grade to the university president; and (3) not complying with



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the handbook by not promptly awarding him his post‐graduate certificate. Fisher also

claimed that a contract was formed when Richmond mistakenly emailed him stating

that he had earned a masterʹs degree and sent him a transcript reflecting that he earned

that degree.

               In its summary judgment decision, the district court rejected Fisherʹs

arguments and ruled that Richmond adhered to its obligations as set forth in the

handbook. Moreover, the district court noted that Richmondʹs handbook and policies

required a passing grade on a studentʹs thesis to satisfy the masterʹs degree

requirements, and that the erroneous email and transcript could not have formed an

independent contract in contradiction to Richmondʹs established rules and policies. On

appeal, Fisher does not challenge any of the grounds for the district courtʹs grant of

summary judgment as to the breach of contract claims. Instead, Fisherʹs sole argument

is that Richmond improperly submitted a corrected transcript to the district court and to

the United States Department of Veteran Affairs (ʺVAʺ), in an administrative

proceeding.

               We review a district courtʹs order granting summary judgment de novo

and focus on whether the district court properly concluded that there was no genuine

dispute as to any material fact and the moving party was entitled to judgment as a

matter of law. See Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012). While this Court

ʺliberally construe[s] pleadings and briefs submitted by pro se litigants, reading such



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submissions to raise the strongest arguments they suggest,ʺ McLeod v. Jewish Guild for

the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (per curiam) (internal quotation marks

omitted), pro se appellants must still comply with Federal Rule of Appellate Procedure

28(a), which ʺrequires appellants in their briefs to provide the court with a clear

statement of the issues on appeal,ʺ Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998) (per

curiam). Despite affording pro se litigants ʺsome latitude in meeting the rules governing

litigation,ʺ the Court ʺnormally will not[] decide issues that a party fails to raise in his

. . . appellate brief.ʺ Id.; see also Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 632‐33 (2d

Cir. 2016) (ʺAlthough we accord filings from pro se litigants a high degree of solicitude,

even a litigant representing himself is obliged to set out identifiable arguments in his

principal brief.ʺ (internal quotation marks omitted)); Norton v. Samʹs Club, 145 F.3d 114,

117 (2d Cir. 1998) (ʺIssues not sufficiently argued in the briefs are considered waived

and normally will not be addressed on appeal.ʺ); LoSacco v. City of Middletown, 71 F.3d

88, 92‐93 (2d Cir. 1995) (holding that pro se litigant abandoned issue by failing to

address it in his appellate brief).

               The district court did not err in granting summary judgment here. First,

Fisherʹs brief on appeal entirely fails to address the bases for the district courtʹs grant of

summary judgment to Richmond on his breach of contract claim. Consequently, he has

abandoned any such challenges. See Barkley, 147 F.3d at 209.




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              Second, Fisherʹs argument for sanctions and default judgment is without

merit; the district court did not abuse its discretion in denying these requests. See Kim v.

Kimm, 884 F.3d 98, 106 (2d Cir. 2018) (ʺWe review the district courtʹs denial of sanctions

for abuse of discretion.ʺ). Fisherʹs appellate brief focuses on his contention that

Richmond ʺillegallyʺ submitted an ʺalteredʺ version of his transcript to the VA and

district court showing that he had received only the post‐graduate certificate, and that

Richmond did not submit the transcript (that he was mistakenly emailed) showing that

he received a masterʹs degree. Fisher argues that due to the submission of the ʺalteredʺ

transcript, the district court should have sanctioned Richmond and granted a default

judgment in his favor. As the district court concluded below, however, Richmond later

furnished a corrected transcript following the decision not to award Fisher a masterʹs

degree, and there is no indication that Richmond or its counsel acted in bad faith. See S.

New Eng. Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 147 (2d Cir. 2010) (upholding

imposition of default judgment as a sanction because there was evidence that

sanctioned parties acted willfully and in bad faith); cf. Shcherbakovskiy v. Da Capo Al Fine,

Ltd., 490 F.3d 130, 135 (2d Cir. 2007) (ʺ[T]he sanction of dismissal should not be imposed

under Rule 37 unless [the partyʹs conduct] is due to willfulness, bad faith, or any fault of

the [party].ʺ (internal quotation marks omitted)). Thus, Fisherʹs arguments fail.




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             We have considered Fisherʹs remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                       FOR THE COURT:
                                       Catherine O=Hagan Wolfe, Clerk of Court




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