    10-4287
    Malcolm v. Bd. of Ed. of Honeoye Falls-Lima


                          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.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 26th day of December, two thousand twelve.

    Present:
                ROBERT A. KATZMANN,
                BARRINGTON D. PARKER,
                RICHARD C. WESLEY,
                      Circuit Judges.
    _______________________________________________________

    BERNICE MALCOLM,

                              Plaintiff-Appellant,

                     v.                                                 No. 10-4287

    BOARD OF EDUCATION OF THE HONEOYE
    FALLS-LIMA CENTRAL SCHOOL DISTRICT,
    HONEOYE FALLS LIMA CENTRAL SCHOOL
    DISTRICT, MICHELLE M. KAVANAUGH,
    Individually and as Superintendent, Honeoye Falls-Lima
    Central School District, WAYNE A. VANDER BYL,
    Individually and as Attorney, Honeoye Falls-Lima
    Central School District, CARL DEVORE, Individually
    and as School Physician, Honeoye Falls-Lima Central
    School District, RENEE WILLIAMS, Individually and
    as Assistant Superintendent for Curriculum and
    Instruction, Honeoye Falls-Lima Central School District,
    KATHLEEN WALLING, Individually and as Former
    Principal, Honeoye Falls-Lima Central School District,
    MICHAEL HAGERMAN, Individually and as Former
    Interim Superintendent, Honeoye Falls-Lima Central
School District, KEVIN HAMILTON, Individually and
as Former Director of Operations and Finance, Honeoye
Falls-Lima Central School District, MEGHAN
PHILLIPS, Individually and as Special Education
teacher, Honeoye Falls-Lima Central School District,
ANNE TUBBS, Individually and as Human Resource
Assistant and Former Claims Auditor, Honeoye
Falls-Lima Central School District,

                  Defendants-Appellees.*
______________________________________________________

For Plaintiff-Appellant:                               Bernice Malcolm, pro se, West Henrietta,
                                                       N.Y.

For Defendants-Appellees Board of Education
of the Honeoye Falls Lima Central School
District, Honeoye Falls-Lima Central School
District, Michelle M. Kavanaugh, Renee
Williams, Kathleen Walling, Michael
Hagerman, Kevin Hamilton, Meghan Phillips,
and Anne Tubbs:                                        Michael P. McClaren, Kevin T. O’Brien,
                                                       Webster Szanyi LLP, Buffalo, N.Y.

For Defendants-Appellees Wayne A. Vander
Byl and Carl Devore:                                   Wayne A. Vander Byl, Esq., Williamson,
                                                       N.Y.


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

New York (Larimer, J.).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment and order of the district court are AFFIRMED.

       Plaintiff-Appellant Bernice Malcolm, pro se, appeals from the September 16, 2010

judgment of the United States District Court for the Western District of New York (Larimer, J.)



       *
           The Clerk of the Court is directed to amend the caption of this case as set forth above.

                                                  2
dismissing her employment discrimination action, with prejudice, and from the district court’s

October 27, 2010 order denying her post-judgment motion brought pursuant to Fed. R. Civ. P.

60(b).1 On appeal, Malcolm contends, inter alia, that the district court erred in dismissing her

complaint, and erred in enjoining her from filing any further complaints in federal court arising

out of her employment with defendants without prior leave from the court. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

          Having conducted an independent and de novo review of the record, we affirm the district

court’s dismissal of Malcolm’s complaint as barred by the doctrine of claim preclusion. “Under

both New York law and federal law, the doctrine of res judicata, or claim preclusion, provides

that ‘[a] final judgment on the merits of an action precludes the parties or their privies from

relitigating issues that were or could have been raised in that action.’” Maharaj v. Bankamerica

Corp., 128 F.3d 94, 97 (2d Cir. 1997) (quoting Federated Dep’t Stores, Inc. v. Moitie, 452 U.S.

394, 398 (1981)). A matter could have been raised in a prior action if it emerges from the same

“nucleus of operative facts” as any claim actually asserted in the prior action. See Interoceanica

Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir. 1997); see also O’Brien v. City of Syracuse,

54 N.Y.2d 353, 357 (1981). To determine whether two actions arise from the same nucleus of

operative facts, we consider “whether the underlying facts are related in time, space, origin, or

motivation, whether they form a convenient trial unit, and whether their treatment as a unit



          1
          We lack jurisdiction to consider the district court’s December 9, 2010 order denying
plaintiff’s second post-judgment Rule 60(b) motion, as Malcolm did not file an amended notice
of appeal as required by the Federal Rules of Appellate Procedure. See Fed. R. App. P.
4(a)(4)(B)(ii).

                                                  3
conforms to the parties’ expectations.” Waldman v. Vill. of Kiryas Joel, 207 F.3d 105, 108 (2d

Cir. 2000) (internal quotation marks omitted). “[T]he principle of privity bars relitigation of the

same cause of action against a new defendant known by a plaintiff at the time of the first suit

where the new defendant has a sufficiently close relationship to the original defendant to justify

preclusion.” Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359,

367-68 (2d Cir. 1995).

       Here, all of Malcolm’s claims against the school district, its employees, and its agents are

precluded. Malcolm’s complaint alleges that the defendants discriminated against her, which

culminated in the termination of her employment. The instant action, which we will refer to as

Malcolm III, is one of several actions Malcolm has brought against the school district, in both

federal and state court. This action emerges from the same nucleus of operative facts as the

others, namely, whether Malcolm was discriminated against by defendants during the course of

her employment as a teacher in the school district. The district court and the New York State

Supreme Court have both previously dismissed Malcolm’s prior actions on the basis that her

claims were either barred by a settlement agreement she entered into with the defendants or

because her claims lacked sufficient factual support. See Malcolm v. Honeoye Falls Lima Cent.

Sch. Dist. (Malcolm I), 669 F. Supp. 2d 330, 332–33 (W.D.N.Y. 2009) (dismissing

discrimination claims pre-dating execution of settlement), aff’d in part, vacated in part, and

remanded by, 399 F. App’x 680 (2d Cir. 2010) (summary order) (Malcolm IV), cert. denied, 132

S. Ct. 244 (2011), reh’g denied, 132 S. Ct. 869 (2011); Malcolm v. Honeoye Falls Lima Cent.

Sch. Dist. (Malcolm II), No. 08/16610 (N.Y. Sup. Ct. Mar. 11, 2010) (granting summary

judgment and dismissing discrimination claims post-dating execution of settlement). Although


                                                 4
this action adds defendants who were not part of the prior actions, because all of the defendants

named in this action are either current or former agents or employees of the school district, the

principle of privity bars relitigation of these claims against these new defendants as well. See,

e.g., Waldman v. Vill. of Kiryas Joel, 39 F. Supp. 2d 370, 382 (S.D.N.Y. 1999) (holding that

government officials sued in their official and individual capacities were entitled to claim

preclusion defense based on prior lawsuit against their government entity), aff’d, 207 F.3d 105

(2d Cir. 2000).

       After the district court rendered its decision in this case, we vacated one portion of the

district court’s judgment in Malcolm I relating to plaintiff’s claim of unlawful denial of health

insurance benefits, and remanded for further consideration. See Malcolm IV, 399 F. App’x at

682. A judgment on appeal generally retains its preclusive effect. See Huron Holding Corp. v.

Lincoln Mine Operating Co., 312 U.S. 183, 188–89 (1941) (holding appeal taken from judgment

does not affect judgment’s finality for claim preclusion under either New York or federal law);

see also Petrella v. Siegel, 843 F.2d 87, 90 (2d Cir. 1988) (New York law); United States v.

Nysco Labs., Inc., 318 F.2d 817 (2d Cir. 1963) (per curiam) (federal law). Therefore, at the time

the district court rendered its decision in this case, the court did not err in relying on claim

preclusion. Once the judgment in Malcolm I was vacated on appeal, though, we would normally

reverse this decision on the ground that the judgment the district court relied on was no longer

final, Sheldon v. Khanal, 396 F. App’x 737, 739 (2d Cir. 2010) (summary order) (“A judgment

vacated or set aside has no preclusive effect.” (alteration omitted) (quoting Stone v. Williams,

970 F.2d 1043, 1054 (2d Cir. 1992)). However, after we remanded in Malcolm IV, the district

court once again dismissed plaintiff’s remaining claim, with prejudice, which we subsequently


                                                   5
affirmed. See Malcolm v. Honeoye Falls Lima Cent. Sch. Dist. (Malcolm V), 777 F. Supp. 2d

484 (W.D.N.Y. 2011), aff’d, No. 11-1894-cv, 2012 WL 1918427 (2d Cir. May 29, 2012)

(summary order) (Malcolm VI), petition for cert. filed, No. 12-606 (U.S. Aug. 25, 2012).

       Accordingly, since the district court’s determination of Malcolm’s claims arising out of

this nucleus of operative facts is once again final, we can affirm on the ground of claim

preclusion.2 Because Malcolm’s prior actions brought claims against the school district arising

out of the defendants’ alleged discriminatory conduct, and because this action raises no claims

based on facts outside those already adjudicated in both federal and state court, her

discrimination claims in this case are barred by claim preclusion, regardless of whether Malcolm

relies on legal theories different from the ones she previously asserted. “Even claims based upon

different legal theories are barred provided they arise from the same transaction or occurrence.”

Berrios v. N.Y.C. Hous. Auth., 564 F.3d 130, 135 (2d Cir. 2009) (internal quotation marks

omitted).3




       2
         After we vacated the portion of the district court’s judgment relating to Malcolm’s
claim that she was unlawfully denied her health insurance benefits, see Malcolm IV, 399 F.
App’x at 682, the proper vehicle for plaintiff to pursue her claim on this ground was through the
remanded action, not through pursuing a second, duplicative action. Cf. Curtis v. Citibank, N.A.,
226 F.3d 133, 138–39 (2d Cir. 2000) (“[P]laintiffs have no right to maintain two actions on the
same subject in the same court, against the same defendant at the same time.”).
       3
          Because we conclude that the district court did not err in concluding that Malcolm’s
claims were subject to claim preclusion, we likewise find no abuse of discretion in the court’s
denial of Malcolm’s Rule 60(b) motion in which she sought reconsideration of that decision, as
none of the arguments or allegations set forth in that motion would have cured the preclusive
effect of the prior federal and state court judgments. See Transaero, Inc. v. La Fuerza Aerea
Boliviana, 162 F.3d 724, 729 (2d Cir. 1998) (denial of Rule 60(b) motions reviewed for an abuse
of discretion).

                                                 6
       Turning to the district court’s injunction, “[a] district court may, in its discretion, impose

sanctions against litigants who abuse the judicial process.” Shafii v. British Airways, PLC, 83

F.3d 566, 571 (2d Cir. 1996) (citation and quotation marks omitted); see also In re

Martin-Trigona, 737 F.2d 1254, 1261 (2d Cir. 1984) (“Federal courts have both the inherent

power and the constitutional obligation to protect their jurisdiction from conduct which impairs

their ability to carry out Article III functions.”). Pursuant to that authority, a court may prevent a

litigant from filing pleadings, motions or appeals upon a showing of extraordinary

circumstances, such as a demonstrated history of frivolous and vexatious litigation or a failure to

comply with sanctions imposed for such conduct. See Richardson Greenshields Sec., Inc. v.

Lau, 825 F.2d 647, 652 (2d Cir. 1987). Specially crafted sanctions are appropriate to restrain

litigants who repeatedly exceed the bounds of tolerable litigation conduct. See In re

Martin-Trigona, 9 F.3d 226, 228 (2d Cir. 1993) (holding that a “leave to file” sanction is a

reasonable requirement). Before a filing sanction is imposed, however, a litigant must be

provided notice and an opportunity to be heard. See Moates v. Barkley, 147 F.3d 207, 208 (2d

Cir. 1998). We review an order imposing a filing injunction or leave-to-file sanctions for abuse

of discretion. See Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009); United States v. Int’l

Bhd. of Teamsters, 266 F.3d 45, 49 (2d Cir. 2001).

       Here, the district court did not abuse its discretion in enjoining Malcolm from filing

further federal complaints arising out of her employment with the school district without first

obtaining leave of the court. On appeal, Malcolm does not advance any specific arguments with

respect to the filing injunction, and the record demonstrates that: (1) she was afforded sufficient

notice of the possible injunction through the defendants’ first motion to dismiss and was


                                                  7
provided with an opportunity to respond to that motion; (2) her litigation history shows

numerous repetitive lawsuits against the school district — she has, by her own admission, filed

fourteen discrimination complaints and has received at least three adverse decisions from federal

and state courts in actions brought against the school district; and (3) the filing injunction is

narrowly-crafted in that it prevents Malcolm only from filing future federal complaints relating

to her employment with the school district and does not infringe on her ability to initiate suits in

state court, file appeals in this Court, or prosecute her pending actions in the district court. See

Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986) (describing the factors district courts

should consider in determining whether to restrict a litigant’s future access to the courts); In re

Martin-Trigona, 737 F.2d at 1262-63. It also allows her to seek leave of the district court to file

a new claim against the school district.

       We have considered all of Malcolm’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment and order of the district court.


                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




                                                  8
