        13-213-cv
        Schlafman v. State University of New York

                        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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
     NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals
 2      for the Second Circuit, held at the Thurgood Marshall United
 3      States Courthouse, 40 Foley Square, in the City of New York,
 4      on the 21st day of October, two thousand thirteen.
 5
 6      PRESENT:
 7               DENNIS JACOBS,
 8               CHESTER J. STRAUB,
 9                    Circuit Judges,
10               WILLIAM F. KUNTZ, II,*
11                    District Judge.
12      _____________________________________
13
14      DAVID E. SCHLAFMAN,
15                    Plaintiff-Appellant,
16
17                 v.                               13-213
18
19      STATE UNIVERSITY OF NEW YORK,
20      FARMINGDALE,
21                    Defendant,


             *
                 Judge William F. Kuntz, II, of the United States
        District Court for the Eastern District of New York, sitting
        by designation.
 1
 2   L. ROBERT KING, JONATHAN
 3   GILBRALTER, FRANK PELLEGRINI,
 4   VICTOR BELLARD, VENKITASWANY
 5   RAJU, LAMARR STANFORD, ROBERT
 6   TEMME, MICHAEL SHEPHERD, MARVIN
 7   FISCHER, W. HUBERT KEEN, BARRY
 8   CAPELLA,
 9                 Defendants-Appellees.
10   _____________________________________
11
12   FOR PLAINTIFF-APPELLANT:         David E. Schlafman, pro se,
13                                    Okeechobee, FL.
14
15   FOR DEFENDANTS-APPELLEES:        Patrick J. Walsh, New York
16                                    State Office of the
17                                    Attorney General, New York,
18                                    NY.
19
20       Appeal from an order of the United States District

21   Court for the Eastern District of New York (Wexler, J.).

22       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

23   AND DECREED that the order of the district court is

24   AFFIRMED.

25       Appellant David E. Schlafman, pro se, appeals from an

26   order denying his Federal Rule of Civil Procedure 60(b)

27   motion for relief from the district court’s judgment

28   dismissing his First Amendment claim of employment

29   retaliation under 42 U.S.C. § 1983.     We assume the parties’

30   familiarity with the underlying facts, the procedural

31   history of the case, and the issues on appeal.


                                  2
 1       We review a district court decision granting or denying

 2   a motion for relief from a final judgment pursuant to

 3   Federal Rule of Civil Procedure 60(b) for abuse of

 4   discretion.   See Johnson v. Univ. of Rochester Med. Ctr.,

 5   642 F.3d 121, 125 (2d Cir. 2011).   “A court abuses it[s]

 6   discretion when (1) its decision rests an error of law or a

 7   clearly erroneous factual finding; or (2) cannot be found

 8   within the range of permissible decisions.”    Id. (citing

 9   Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.

10   2001)).   Rule 60(b) is “a mechanism for ‘extraordinary

11   judicial relief’ invoked only if the moving party

12   demonstrates ‘exceptional circumstances.’”    Ruotolo v. City

13   of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting

14   Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir.

15   1994)).

16       The standard for granting motions pursuant to Rule

17   60(b) is “strict, and reconsideration will generally be

18   denied unless the moving party can point to controlling

19   decisions or data that the court overlooked-matters, in

20   other words, that might reasonably be expected to alter the

21   conclusion reached by the court.”   Shrader v. CSX Transp.,

22   Inc., 70 F.3d 255, 257 (2d Cir. 1995).   “[A] motion to



                                   3
 1   reconsider should not be granted where the moving party

 2   seeks solely to relitigate an issue already decided.”      Id.

 3   Such a motion “must be made within a reasonable time — and

 4   for reasons (1), (2), and (3) no more than a year after the

 5   entry of the judgment or order or the date of the

 6   proceeding.”   Fed. R. Civ. P. 60(c).

 7       As an initial matter, the Rule 60(b) motion was timely

 8   filed in the district court because it was filed on August

 9   29, 2012, within one year from the entry of judgment on

10   August 31, 2011.   However, an independent review of the

11   record and relevant case law confirms that the district

12   court properly denied Schlafman’s Rule 60(b) motion, and we

13   affirm for substantially the same reasons stated by the

14   district court in its December 10, 2012 decision.

15       First, Schlafman’s assertion of alleged mistakes by the

16   district court regarding its specific findings of fact is an

17   impermissible attempt to relitigate the merits of the

18   underlying judgment, the appeal of which this Court has

19   already dismissed as frivolous.   Similarly, Schlafman’s

20   claim that defense counsel improperly called witnesses to

21   testify that Schlafman had been disruptive is also a thinly-

22   veiled attempt to relitigate factual issues decided by the



                                   4
 1   district court in granting the motion for judgment as a

 2   matter of law.

 3       With respect to Schlafman’s claims that the district

 4   court erred by declining to admit certain evidence or allow

 5   testimony from all of his prospective witnesses, by

 6   permitting the confiscation of his cell phone, and by

 7   allowing counsel to withdraw, Schlafman has failed to

 8   demonstrate that those rulings rested on any legal errors or

 9   were wrong - much less that they were abuses of the district

10   court’s broad discretion.

11       Lastly, Schlafman claims that defense counsel engaged

12   in misconduct warranting vacatur of the judgment under Rule

13   60(b)(3).   Relief under Rule 60(b)(3) is “cannot be granted

14   absent clear and convincing evidence of material

15   misrepresentations” or other misconduct.   Fleming v. New

16   York Univ., 865 F.2d 478, 484 (2d Cir. 1989).    First,

17   Schlafman claims that defense counsel attempted to

18   intimidate prospective witnesses by visiting the Flightline

19   building.   Schlafman presents no evidence – let alone clear

20   and convincing evidence - supporting this charge or his

21   other vague charges of witness intimidation.    Finally,

22   Schlafman claims that defense counsel made fraudulent



                                   5
 1   statements of law and fact during trial that had a

 2   prejudicial bearing on its outcome.   These claims of fraud

 3   are, again, thinly-veiled attempts to relitigate the

 4   district court’s evidentiary rulings and factual issues

 5   underlying the merits.   Moreover, Schlafman fails to

 6   demonstrate by clear and convincing evidence that any

 7   material misrepresentations were made.

 8       Having reviewed the parties’ arguments and the record,

 9   we find that the district court did not abuse its

10   considerable discretion in denying Schlafman’s Rule 60(b)

11   motion.   Accordingly, we AFFIRM the order of the district

12   court.
13
14                               FOR THE COURT:
15                               CATHERINE O’HAGAN WOLFE, CLERK
16




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