UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

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JEFFREY MALKAN,
)
)
Plaintiff,
)
)
-against)
)
)
MAKAU W. MUTUA, in his individual
)
capacity,
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Defendant.
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Docket No: 12-CV-0236 (RJA-HKS)

PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF

OBJECTIONS TO MAGISTRATES REPORT AND RECOMMENDATIONS

Jeffrey Malkan
Plaintiff pro se
12 Valleywood Ct. W
Saint James, New York 11780
(631) 862-6668

PRELIMINARY STATEMENT
This Memorandum is submitted in support of Plaintiffs objections to the Report and
Recommendations of Magistrate H. Kenneth Schroeder, Dkt. # 96, 97, submitted for this
Courts approval on December 1, 2015.1 All of the objections contend that the facts found in
the Magistrates report and the recommendations based on them were clearly erroneous.
The Magistrates recommendations are (1) that the complaint be dismissed without any
consideration or its merits, and (2) that the Plaintiffs former-attorney, Rick Ostrove, Esq., be
sanctioned in the amount of $10,000 as a penalty for bringing the Rule 11 motion on my behalf,
and (3) that the Court hold the Plaintiff in contempt for disclosing that former-Dean Mutua
defied this Courts mandatory ADR plan by failing to appear for the mediation held at the
offices of Hodgson Russ on March 1, 2013, and then refusing to mediate in good faith, or at all.
ARGUMENT
Rule 11 Sanctions
Rule 11 provides that an attorney, [b]y presenting to the court a pleading, written
motion, or other paperwhether by signing, filing, submitting, or later advocating it, certifies
that to the best of the person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances that the position he or she is advocating is not being
presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation. He or she must also certify that the denials of factual
contentions are warranted on the evidence or, if specifically so identified, are reasonably based
on belief or a lack of information. Id. at 11(b), (b)(1), and (b)(4), emphasis added.
1

This Memorandum is submitted by Plaintiff, proceeding pro se. In accord with legal writing
convention, the Plaintiff will refer to himself throughout in the third person.
2

(1) The recommendation to impose the Rule 11 sanctions on the Plaintiffs formerattorney. The Magistrates recommendation for the imposition of sanctions on Professor
Malkans former-attorney, Rick Ostrove, Esq., is based on his conclusion that this Rule 11
motion was brought solely to harass, cause unnecessary delay, or needlessly increase the cost
of litigation. The Court should reject this finding and the recommendation that it supports.
The purpose of the Rule 11 motion was to establish, prior to this Courts decision on
former-Dean Mutuas motion for summary judgment, that the record presented by AAG Sleight
was tainted by perjury and fraud. Former-Dean Mutua falsely testified that Professor Malkan
did not have a valid faculty appointment because of former-Dean R. Nils Olsens failure to
obtain a recommendation from the Promotion and Tenure (P&T) Committee. This is a material
and, perhaps, dispositive fact in this case, both for the immediate reason that a fraudulently
obtained appointment might negate Professor Malkans property interest in state employment,
and for the broader reason that if former-Dean Mutua was lying under oath about this fact, then
his credibility about every other aspect of his defense would have to be discounted to zero.
It makes no sense, moreover, to speculate that this Rule 11 motion was filed by an
impecunious plaintiff attempting to delay and increase the cost of his own case. The exact
opposite is true. Professor Malkan has done everything within his power to keep this case on
track and resolve it with minimal expense. It was essential to that end for him to establish that
the validity of his faculty appointment was not a disputed fact.
2. The recommendation to deny the Plaintiffs motion for sanctions on the Attorney
General and the former-Dean. The Magistrates recommendation to deny Rule 11 sanctions on
AAG David J. Sleight, Esq., and former-Dean Makau W. Mutua is based on a faulty application
of the facts to the law.
3

The statute is clear about the standard that all attorneys must meet when they are
advocating pleadings and motions to this Court. They must certify that their affirmative
statements are true and their denials of alleged facts are based on knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances.
The issue on this Rule 11 motion is whether AAG Sleights denial or denial of
knowledge and information that his client, former-Dean Mutua, was lying under oath in his
deposition of December 19, 2013, and his Declaration of June 26, 2015, Dkt. # 74, was based a
belief formed after an inquiry reasonable under the circumstances.
In order to answer this question, the Court must determine what was reasonable under
the circumstances. The circumstances here are (1) that Professor Malkan first raised the issue of
former-Dean Mutuas perjury on November 11, 2011 in a letter to GOERS attorney Lynn
Vance, Esq. (copied to President Satish K. Tripathi), and (2) that his allegations are backed by
the sworn testimony of eleven members of the tenured faculty and the documentary evidence
preserved for these many years by Professors Mangold and Avery in their personal office
records. See Malkan Declaration in Support of Objections, December 11, 2015, at Ex. B.
This Court should find that the Magistrate was in error when he held that AAG Sleights
denial or DKI of the allegation was made after an inquiry reasonable under the
circumstances. Mr. Sleight made no inquiry at all, or at least none that he admits, and instead
refused to ask anyone but his own client whether his clients testimony was true, even though all
of the witnesses with personal knowledge of the facts are employed by the University and
would have had to answer him promptly and truthfully.
The Attorney General, moreover, has refused over the past three and a half years to
accede to Professor Malkans request that he disclose the names of the witnesses whom he
4

intends to call to corroborate former-Dean Mutuas testimony about the circumstances of the
promotion and tenure vote.
Professor Malkan had a right to this information as well as a need for it, both to discover
former-Dean Mutuas defense in order and to oppose the summary judgment motion. In both
contexts, the answer to the question of whether he had a legitimate faculty appointment
granted after a recommendation from the P&T Committee was a material and perhaps a
dispositive fact. The only conclusion that the Court can draw from his refusal is that he has no
witnesses and has no evidence. He knows that admitting this would confirm that former-Dean
Mutua lied under oath and obstructed justice.
The motion for summary judgment
The standard for summary judgment requires the movant to show that that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. It further requires that [a] party asserting that a fact cannot be or is
genuinely disputed must support the assertion by showing that an adverse party
cannot produce admissible evidence to support the fact. Finally, in applying this
standard, [i]f a nonmovant shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
The application of Rule 56 (a)-(c) to the present case justifies this Courts rejection of the
Magistrates recommendation and strongly supports Professor Malkans request that the Court
grant summary judgment to him, sua sponte, on the issue of liability.
5

Professor Malkan has established by compelling and likely conclusive evidence, at this
point, that the P&T Committee, on April 28, 2008, recommended that Dean R. Nils Olsen, Jr.,
approve his application for 405(c)-protected status, also known as clinical tenure.
That material fact which the Attorney General refuses to concede leaves no
undisputed facts in the record and warrants a grant of summary judgment to Professor Malkan,
pursuant to Rule 56(f), for all of the reasons already stated to this Court in his Memorandum of
Law, August 30, 2015, Doc. # 61.
This conclusion is further supported by the inference that inevitably follows from this
circumstance that former-Dean Mutua lied under oath, which reduces the probative and
persuasive value of the rest of his testimony and argumentation to less than zero.
If there is any basis for disputing the legitimacy of Professor Malkans promotion, the
evidence lies in the testimony of the witnesses who can corroborate former-Dean Mutua. The
names of those witnesses, however, are in the Attorney Generals sole possession. It was
therefore necessary for the Magistrate, under Rule 56(d), to issue an order requiring the
Attorney General to disclose those names before granting summary judgment to former-Dean
Mutua.
Attorney General at this late date should also have been required to accompany those
names with affidavits or declarations attesting under oath to the truth of their recollections.
Only then would the Court be dealing with a disputed issue of material fact. Without those
names Professor Malkan has been deprived of facts essential to justify his opposition to the
Magistrates recommended grant of summary judgment to former-Dean Mutua.

OBJECTIONS
Objections to the denial of Rule 11 sanctions against AAG Sleight and former-Dean Mutua
Objection #1: As there is no evidence before the Court to suggest anything other than
differing recollections of a meeting of tenured faculty on April 28, 2006, there is no
basis for the accusation of perjury against Dean Mutua. Slip Op., at 25. [T]here is
no evidence before the Court to suggest that Dean Mutua testified falsely as to his
recollection of events on April 28, 2006. Slip Op., at 28. While the fact that Mr.
Mutuas recollection differs from that of every other individual in the room may very
well suggest that his recollection is faulty plaintiff has proffered no evidence that his
testimony was intentionally false. In other words, plaintiff had no legal or factual basis
for the accusations of perjury set forth in his Rule 11 motion against Dean Mutua and
AAG Sleight. Slip. Op. at 34.
The evidence that the Magistrate found was missing is, in fact, before this Court is in the
record in the form of the Motion to Sever Trials, submitted by Professor Charles P. Ewing, Dkt.
#59, and the accompanying declarations and documentary evidence provided by eleven
members of the tenured faculty of SUNY Buffalo Law School. The contemporaneous
handwritten tally sheets of the vote count are attached, for the Courts convenience, to the
accompanying Declaration of Jeffrey Malkan, December 11, 2015, as Exhibit B.
Objection #2: [T]here is no evidence to suggest that AAG Sleight possesses actual
knowledge that Professor Mutua is lying about his recollection of that meeting. AAG
Sleight should not be maligned for accurately depicting witnesses differing
recollections of the meeting in his Statement of Undisputed Facts. In any event, as
there is no disagreement over the fact that plaintiff was promoted to the position of
Clinical Professor, the events of April 28, 2006 are immaterial. Slip Op., at 25-26.
This is untrue as a matter of both fact and law. The knowledge standard must be applied
only after the attorney has made the requisite inquiry into the facts, as reasonable under the
circumstances, that is mandated by Rule 11. The facts before this Court demonstrate that AAG
Sleight failed to make the requisite inquiry, but instead has been trying to preserve a pretense of
plausible deniability. That pretense is contrary to the express language of the statute.
7

In addition, the standard that must be applied in this situation is the standard of objective
reasonableness.
It must be noted that there is considerable confusion in the Magistrates reading of the
Attorney Generals position on the issue of the knowledge standard. The Attorney General
advocated for a subjective standard in the application of Rule 11. AAG Sleight wrote:
Doe does not support the proposition that a lawyers actual
knowledge of a witnesss false testimony is judged by an objective
standard. In fact to the contrary, it supports the proposition that is
is judged by a subjective standard, that is, actual knowledge.
The Second Circuit in Doe approved the definition used in Virginia
for when actual knowledge is clearly established. Id. at 62.
Information is clearly established when the client acknowledges
to the attorney that he has perpetrated a fraud on the court. Id.
(emphasis in original). That is not an objective standard.
Slip Op. at 16 (emphasis supplied).
The Magistrate, however, found that the objective standard must be applied to an
attorneys knowledge on a Rule 11 motion. In effect, he found that AAG Sleights position was
wrong. He cited the following authority in support of this conclusion.
A pleading, motion or paper violates Rule 11 if it is frivolous,
legally unreasonable, or factually without foundation, even though
not signed in subjective bad faith. Wechsler v. Hunt Health
Systems, Ltd. 216 F. Supp.2d 347, 356 (S.D.N.Y. 2002). The
appropriate standard is an objective standard of reasonable
inquiry. Business Guides, 498 U.S. at 554; see Fed. R. Civ. Pro.
11 advisory committee. Rule 11 is violated when it is clear under
existing precedents that a pleading has no chance of success and
there is no reasonable argument to extend, modify, or reverse the
law as it stands. Corroon v. Reeve, 258 F.3d 86, 92 (2d Cir.
2001); see Oliveri v. Thompson, 803 F.2d 1265, 1275 (2d Cir.
1986) (sanctions are appropriate when it appears that a competent
attorney could not form the requisite reasonable belief as to the
validity of what is asserted in the paper.). cert. denied sub. nom
Suffolk County v. Grascek, 480 U.S. 918 (1987).
8

Id., (emphasis supplied).

Therefore, the Magistrate should have found that AAG Sleights reliance on the dont
ask, dont tell defense is misplaced. Even if Mr. Sleight had advised his client (as criminal
defense attorneys sometimes do) that he should not confess anything incriminating, the attorney
in a civil action is not protected by his willful blindness to the obvious facts. What matters is
what a reasonable attorney under the circumstances would be presumed to know about his
clients perjury. A reasonable attorney in this case, in light of the irrefutable documentary
evidence annexed as Exhibit B to the Malkan Declaration (concurrently submitted on December
11, 2015), could not avoid knowing that the only ethical course of conduct, under the
circumstances, would be to ask the remaining professors, who had not yet spoken, what had
happened at the proceedings on Professor Malkans tenure application.
The knowledge standard, as it applies to the rules and principles of professional ethics,
was explained in further detail in the Plaintiffs Memorandum of Law in Opposition to
Defendants Cross-Motion for Rule 11 Sanctions, August 24, 2015, Dkt. # 88
The knowledge standard has two sources Rule 11 of the Federal
Rules of Civil Procedure, and the New York Rules of Professional
Conduct. These two standards are consistent and must, in this case, be
applied together.
The Attorney General has taken the position that he does not have
actual knowledge of former-Dean Mutuas perjury because his client
hasnt confessed to him and has been consistent in his mendacity over the
past five years. This motion requires him now to honor his duty of candor
to this Court and drop that pretense. Rule 11 is based on the premise that
an attorney must verify the facts in his signed submissions to the Court in
a manner that is reasonable under the circumstances. The circumstances
here include allegations that are so well-documented that they have been
reported on the front page of the Buffalo News and have resulted in Makau
W. Mutuas hasty removal from the Deans Office three weeks into the
fall semester of 2014.
9

(b) Representations to the Court. By presenting to the court

a pleading, written motion, or other paperwhether by
signing, filing, submitting, or later advocating itan
attorney or unrepresented party certifies that to the best of
the person's knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose,
such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument
for extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary
support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on
the evidence or, if specifically so identified, are reasonably
based on belief or a lack of information.
Fed. R. Civ. Pro. Rule 11(b) (emphasis added).
Only after the Attorney General has followed the mandate of Rule
11 may he conclude that he does not have actual knowledge and that he is
not in jeopardy of deceiving the Court with false evidence and perjured
testimony.
Mr. Sleights approach has been to skip the reasonable inquiry
stage and jump straight to actual knowledge. At this point, a reasonable
attorney might agree with Mr. Sleight that there is nothing to investigate.
The same attorney, however, would conclude that no investigation is
warranted because the evidence is already conclusive. It is impossible for
Mr. Sleight to deny actual knowledge of the fact that former-Dean Mutua
lied under oath and thereby committed a crime against the judicial process.
The Rules of Professional Conduct provide the following
definitions of knowledge in Rule 1.0, Terminology:
(k) Knowingly, known, know, or knows
denotes actual knowledge of the fact in question. A
persons knowledge may be inferred from circumstances.
(q) Reasonable or reasonably, when used in relation
to conduct by a lawyer denotes the conduct of a reasonably
10

prudent and competent lawyer. When used in the context of

conflict of interest determinations, reasonable lawyer
denotes a lawyer acting from the perspective of a
reasonably prudent and competent lawyer who is
personally disinterested in commencing or continuing the
representation.
(r) Reasonable belief or reasonably believes, when
used in reference to a lawyer, denotes that the lawyer
believes the matter in question and that the circumstances
are such that the belief is reasonable.
(s) Reasonably should know, when used in reference to
a lawyer, denotes that a lawyer of reasonable prudence and
competence would ascertain the matter in question.
The Attorney General knows that former-Dean Mutua lied under
oath. It is hardly worth belaboring the point. The pretense that he has
somehow avoided knowing what everyone else knows is unworthy of his
Office. It is impossible for a lawyer of reasonable prudence and
competence to have failed to ascertain the truth of the matter in question.
A persons knowledge may be inferred from circumstances. R.P.C.
1(k). The circumstances to which this proviso refers are the same
circumstances that, under Rule 11(b)(4), mandate a reasonable inquiry
into the evidence-backed factual allegations of his clients perjury the
inquiry that Mr. Sleight claims that he has no duty to make, although it is
difficult to believe that he has not already done so and simply refuses, in
an excess of misguided zeal, to admit it.
Rule 1.13 of the Rules of Professional Conduct is clear about the
range of conduct that is considered reasonable for a lawyer who is
assessing a conflict of interest between an organization and a rogue
employee. Under Rule 1.0(k), a lawyers knowledge can be inferred
from circumstances, and a lawyer cannot ignore the obvious. See id.,
Comment [3] (emphasis added). The Attorney General has been trying to
ignore the obvious, but his denials of actual knowledge do not lie within
the range of reasonable belief.
Objection #3: As it is clear that Rule 11 imposes no obligation upon his attorney to
amend his pleading, plaintiff has no grounds to move to sanction AAG Sleight regarding
the answer. Moreover, AAG Sleight articulated sufficient grounds for his denial of
knowledge and information sufficient to form a belief as to the truth or falsity of the
allegation contained in paragraph 11 at the time the Answer was filed. Slip Op., at 31.

11

The issue before this Court is the fundamental issue of whether AAG Sleight had an
obligation, under Rule 11 and the New York Rules of Professional Conduct, to inform the Court
that he had discovered that his client was attempting to perpetrate on a fraud on the Court, rather
than, more narrowly, whether he had an obligation to amend the Answer.
The two issues are facets of the same duty the ethical duty of candor to the court
because ethical duty of candor entails the procedural duty to plead truthfully. AAG Sleight
knew that his client had already testified at PERB. He knew the substance of that testimony and
that his client was bound by it. That was why AAG Sleight agreed in his discussions with Mr.
Ostroves associate to amend the Answer.
AAG Sleight, moreover, admits that Deny accurately described his position at the time
the Answer was filed. That was why he was willing to amend the Answer in the first place. He
knew the substance of his clients PERB testimony and acknowledged that the Answer he was
filing on his behalf could not contradict that testimony.
He has, moreover, stated that, if he were to amend the Answer, he would deny the
allegations. Dkt. #75, p. 10. See Slip Op. at 30. That has been his position throughout this
matter. The Magistrate is therefore wrong in his report that AAG Sleight articulated sufficient
grounds for his denial of knowledge and information sufficient to form a belief as to the truth or
falsity of the allegation contained in paragraph 11 at the time the Answer was filed.
Objection #4: The Magistrate failed to address the Attorney Generals violation of
professional responsibility when he failed to recognize or remediate the conflict of
interest between his client, the State University of New York (which is an agency of New
York State), and the defendant in this case, Makau W. Mutua.
The Attorney General should have been sanctioned under this Courts inherent powers
because he violated his statutory obligations under the New York Public Officers Law 1712

19, and his ethical obligations under the New York Rules of Professional Conduct, R. 1.13, in
these three respects.
1. The Public Officers Law does not allow the Attorney General to defend a lawsuit
against a rogue employee. The New York Court of Appeals held in Lancaster v. Village of
Freeport, 22, N.Y. 3d 30, 38-41, 978 N.Y.S.2d 101 (2013) that the Attorney General may be
obliged to withdraw if the state official whom he is defending obstructs the settlement process,
or fails to cooperate in his own defense. In the present case, former-Dean Mutua refused to
mediate in good faith and refused to appear at the mandatory mediation. That was a sufficient
basis for the Attorney General to withdraw. In addition, former-Dean Mutua evidently lied to
the Attorney General by falsely describing the facts and circumstances surrounding the P&T
Committee meeting of April 28, 2006. This perjury put the Attorney General in jeopardy of
violating federal criminal law as well as the New York Rules of Professional Conduct.
2. In addition, the Public Officers Law does not allow the Attorney General to act as a
criminal defense lawyer for a state official. If a state official is accused of a crime, he or she
must retain private counsel, subject to the provision that he or she is entitled to reimbursement
for the costs of defense if and when the state official is exonerated. That is the effect of Public
Officers Law 19, which provides for compensation to private counsel after an acquittal. In the
present case, the Attorney General knows, or reasonably should know, that he has undertaken
the role of a criminal defense lawyer by defending former-Dean Mutuas perjury. He knows,
therefore, that the only proper course of action under the statute was to withdraw and require his
client to obtain and pay for private counsel.

13

3. When an attorney for an organization, including the State, is assigned to represent an

employee or agent of the organization, the attorneys allegiance still belongs to the organization.
See New York Rules of Professional Conduct (RPC) R. 1.13. When it becomes clear, as it
has in the case of former-Dean Mutua, that the employee has gone rogue and is behaving in a
manner that is detrimental to the interests of the organization, as well as its principles and
values, the attorney must withdraw and inform the court of his or her reasons for doing so.
The Court is referred to the arguments presented in Plaintiffs Memorandum of Law in
Opposition to Cross-Motion for Rule 11 Sanctions, August 24, 2015, Dkt. # 88.
Objections to the grant of Rule 11 sanctions against Mr. Ostrove and Professor Malkan
Objection # 5: [T]he Court can fathom no reason to fixate on Professor Mutuas
recollection of this meeting other than to harass Professor Mutua, needlessly increase
the costs of this litigation and unduly burden the Court. Neither plaintiff nor his
attorney has ever articulated how plaintiffs claim would be strengthened if Professor
Mutuas recollection aligned with the recollection of the other faculty members present
at the [P&T Committee] meeting on April 28, 2006 nor have they articulated how
Professor Mutuas differing recollection compromises plaintiffs claim. Slip Op. at 34.
The reason why the Rule 11 motion was necessary at this point in the litigation was that
the Attorney General was moving for summary judgment based on a record tainted by perjury
and fraud. Professor Malkan, in his Declaration of July 22, 2015, Dkt. # 82, explained exactly
what effect the perjury would have on the disposition of this summary judgment motion.
65. There are four case-specific reasons why this Rule 11 motion had to be
filed before this Court decided the summary judgment motion that is also
pending before it.
66. First, a summary judgment motion is a dispositive motion that must be
decided on a record of undisputed facts. If Makau W. Mutua's perjury is left
open as a disputed question of fact, summary judgment could be granted by
this Court without the evidence of his perjury ever being addressed. That
would be unlawful and unjust, and yet another deliberately induced
14

miscarriage of justice for me. Mr. Sleight is trying to slip a dispositive

pretrial motion between the cracks in a case that he knows can never go to
trial. If it did go to trial, his client would be called to testify and would have
to perjure himself yet again, unless he invoked his Fifth Amendment right to
avoid self-incrimination, which would end the civil aspect of this matter
then and there.
67. Second, former-Dean Mutua's perjury pertains to a material fact. Mr.
Sleight's client has testified and still maintains the position that the P&T
Committee's failure to make an up or down recommendation on my
promotion resulted in an "ultra vires" recommendation by then-Dean R. Nils
Olsen, Jr., which, in turn, nullified my faculty appointment. His client's
position, in other words, is that the perjured fact is not just a material fact,
but the dispositive fact. Mr. Sleight cannot disown his client's long-held and
still-held position.
68. Mr. Sleight tries to sidestep the perjury by claiming that he has not
expressly based any of his legal arguments on it. He is well aware,
however, that regardless of whatever arguments he does or does not make,
his client's lie is fair game for whatever the Court deems appropriate to do
with it.
69. Third, the perjury goes to an issue that pervades every aspect of this
case, former-Dean Mutua's credibility. He has leveraged the credibility of
his office into a miscarriage of justice in state court, and is trying to do the
same here. He has maintained a devastating lie about a faculty appointment
over a period of more than five years. Nothing he says about anything can
ever be believed. Every fact and every legal pretext he has offered in this
case is irrevocably tainted by his crime against the judicial process. The
only barrier that stands between former-Dean Mutua and a federal
prosecutor is Mr. Sleight's protection of his perjury.
70. Finally, fourth, Mr. Sleight's alternative grounds for summary judgment
must fall along with his client's credibility. No court could ever find that the
victim of perjury received adequate post-deprivation due process through a
legal process tainted by perjury. No court could ever find that a state
official is entitled to qualified immunity based an objectively reasonable
belief in the legality of his actions in a matter where the state official has
perjured himself. Even to explain this reasoning, much less attempt to
justify it, is to give voice to propositions that are simply absurd.
Objection #6: Plaintiffs disclosure of his mediation statement on the internet [sic]
and discussion of the mediation proceedings with SUNY Buffalo Spectrum is
contemptuous. Slip. Op. at 37.
15

Both parties asked this Courts permission to opt out of the mandatory mediation, but the
Court denied permission.
TEXT ORDER: the joint motion 22 to opt out of ADR is denied. The excuse of
plaintiff for filing the motion late does not excuse the failure timely to file the
joint motion by defendants. Moreover, the Court has carefully reviewed the
grounds offered in support of the motion and finds no good cause to opt out of
ADR. The individual request of plaintiff that the Court order non-parties to
attend the mediation is also denied. Because the Court did not decide the joint
opt out motion sooner, an extension of time to confer and select a Mediator,
confirm availability of the Mediator, ensure the Mediator does not have a
conflict with any parties, identify a date and time for the initial mediation
session, and to file the stipulation confirming the selection of the Mediator, is
granted nunc pro tunc to January 18, 2013. The action remains committed to
Magistrate Judge Schroeder pursuant to the Courts October 5, 2012 Text Order
22. Issued by Hon. Richard J. Arcara on December 12, 2012. (WJG) (Entered:
12/12/2012)

See Text Order, Dkt. # 28.

Professor Malkan, therefore, proceeded in good faith to the mediation. Former-Dean
Mutua, in contrast, decided to defy this Courts order. Professor Malkan was left to mediate
with an empty chair.
Professor Malkan did not disclose anything about what former-Dean Mutua said at the
mediation. He could not have done so because former-Dean Mutua obviously did not say
anything. The only information about the mediation publicly revealed by Professor Malkan was
his own legal position, which he has before and since disclosed in many different forms, and the
unprotected fact that former-Dean Mutua did not show up.2
Professor Malkan was harmed by former-Dean Mutuas refusal to comply with this
Courts mandatory ADR rules because he had no notice that mediation was not going to occur
and was burdened with the expense of traveling, with counsel, 450 miles to Buffalo. This was
2

Professor (former Vice-Dean) Charles P. Ewing did show up. He and Professor Malkan had a
successful mediation that resulted in a settlement of their differences. Professor Malkan has
disclosed nothing about this mediation.
16

money subtracted from Professor Malkans total budget for litigating this case while still
maintaining his basic life necessities. Professor Malkan was further harmed because he was
denied the benefit of a mediation that might have ended this case two and a half years ago.
The Magistrate concurred with AAG Sleights concession that a financial sanction
would be inappropriate in light of plaintiffs current circumstances. He stated that it is
important to the parties and to the integrity of the judicial system that plaintiffs allegations be
resolved on the merits and therefore declined to recommend dismissal of this action even
though Mr. Malkans conduct during the course of this litigation would easily warrant even such
a severe sanction. Slip Op. at 37 (emphasis added).
The plaintiffs current circumstances are that he was, in effect, barred from his
profession and therefore has been living with both hardship and disgrace for the past seven and
a half years, which is how long this protracted legal struggle has been going on. This dire
circumstance has come to pass entirely because of former-Dean Mutuas criminal misconduct
and the Attorney Generals complicity in his subversion of the judicial process.
[T]he integrity of the judicial system, to which the Magistrate refers in his
recommendation, has been undermined by perjury and destruction of subpoenaed evidence3 by
the Dean of SUNY Buffalo Law School. The Magistrate, nevertheless, recommended no
penalty for him and his counsel, but instead bestowed this Courts protection on the perjurer.
Finally, the Magistrate stated that he has declined to recommend dismissal of this
action as a penalty for Professor Malkans indiscretion (Dkt. # 97). This, however, is a paltry

Dean Mutua testified at his December 19, 2013 deposition that he could not produce Professor
Malkans P&T file, including his dossier, because someone had vandalized the Deans Office
personnel records and it had disappeared into thin air. See Mutua Dep., at 72.
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consolation in light of his concurrent opinion (Dkt. #96) in which he recommended that formerDean Mutuas motion for summary judgment be granted.
While the Magistrate said that he was not dismissing the action as a penalty, in his
concurrent opinion did exactly that. The Magistrate did what he had just said he would not do
and what he recognized would be detrimental to the integrity of the judicial system.
Objection to the grant of summary judgment to former-Dean Mutua
Objection #7: [W]hatever the intent of the agreement between Dean Olsen and Mr.
Malkan, the Court cannot permit the parties to circumvent the rules and regulations
applicable to term appointments in an attempt to afford plaintiff the protected interest of
a continuing appointment under the label of a term appointment. In other words,
plaintiff can have no protected property interest in continued employment beyond that
which is provided for term appointments by New Yorks Code, Rules, and Regulations.
Since plaintiff remained employed for the duration of the term of his employment, it is
recommended that defendants motion for summary judgment be granted. Slip. Op. at
10.
The Magistrate erred by recommending the dismissal of Professor Malkans due
process claim for failing to establish the threshold element of a protected property interest.
To be specific, he incorrectly reported that all term contracts are revocable at the
Deans discretion every time they come up for renewal in this case, every three years even
though the Law School could not qualify for ABA accreditation if it disclosed that it does not
provide any job security to clinical professors or junior (i.e., assistant or associate) professors,
who are all initially hired on consecutive term contracts.
1. Dean Olsen did not exceed the scope of this authority by appointing
Professor Malkan to the state title and academic rank of Clinical Professor.
Professor Malkan does not contend that former-Dean Olsen appointed him to the title
and rank of Clinical Professor. Dean Olsen received a favorable recommendation from the
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P&T Committee, endorsed that recommendation, and sent it to the Provost, who in turn
endorsed it and sent it to the President. The President, accepting these recommendations,
issued a Letter of Appointment to Professor Malkan. The Presidents signature was the act of
appointment. Former-Dean Mutua and Professor Malkan are in agreement that this has always
been the Universitys practice and procedure.
2. The Contract was in accord with the Law Schools institutional guidelines
and procedures, including the SUNY Trustees Policies.
(a) The SUNY Trustees Policies. The Magistrate found that the Policies of the SUNY
Board of Trustees4 unconditionally forbid presumptively-renewable term contracts for Clinical
Professors. See SUNY Trustees Policies Art. X, 3(b).
Professor Malkan does not dispute that SUNY term contracts automatically expire
unless they are renewed (id., Art. XI, Title D, 1), that they are subject to a twelve-month
notice requirement to keep them from rolling over for an additional one-year term, (id., Art.
XI, Title D, 5), and that these notices may be served prior to whatever in-house consultation
is deemed by the institution to be appropriate (id., Art. XI, Title A, 1).5
The rest of the Magistrates findings, however, are wrong. The SUNY Trustees
Policies do not forbid presumptively-renewable term contracts. This is the key provision:
4. Renewal of term. Except as provided in this Article, term
appointments may be renewed by the chief administrative officer
of the college for successive periods of not more than three years
each; such renewals shall be reported to the Chancellor. No term
appointment, of itself, shall be deemed to create any manner of

Policies of the SUNY Board of Trustees, at http://www.suny.edu/media/suny/contentassets/documents/boardoftrustees/SUNY-BOT-Policies-June2014.pdf (codified at 8 N.Y.

Comp. Codes R. & Regs., tit. 8, 325, et seq.) (last visited, December 9, 2015).
5

The usual practice, however, is for the Dean to provide the twelve-month notice after any inhouse reviews have been completed.
19

legal right, interest or expectancy in any other appointment or

renewal.
Id., Art. XI, Title D, 4 (emphasis added).
The Magistrate interprets this language to mean that presumptively-renewable term
contracts are categorically forbidden. He neglects, however, to explain the qualification of
itself. An accurate paraphrase would have to provide a reference for that qualification. No
term contract, of itself, creates a legal right, interest or expectancy of renewal, but conditions
may be added to provide that legal right, interest or expectancy of renewal.
The renewal of term provision, in other words, rules out a breach of contract claim
based on an implied expectation of renewal, but not one based on an express expectation of
renewal.
Dean Olsen provided an express expectation of renewal in Professor Malkans
Contract. Subsequent to the P&T Committees recommendation that Professor Malkan be
granted an ABA Standard 405(c)-protected contract, Dean Olsen extended an expectation that
the Contract would be renewed by providing a presumption of renewal, a good cause standard
of review, and due process rights before a committee comprised of the entire tenured faculty at
his rank or higher (the Committee on Clinical Promotions and Renewals or CCPR) as
specified in the Faculty Bylaws. Bylaws and Standing Orders of the Faculty of SUNY Buffalo
Law School, III.E.4, available on-line at
http://www.law.buffalo.edu/infoStaff/facultyBylaws.html.
These provisions were intended to create tenure-like protection through a burdenshifting process. They were perfectly legal and, indeed, necessary. A legal presumption in
this case a rebuttable presumption mandates that, after a prima case for continued
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employment is presented, a decision will be made in favor of the presumption-holder unless

evidence is proffered to rebut the presumption.
This means that upon a showing that the professor has continued to perform his or her
duties as expected the contract will be renewed unless evidence is provided, and accepted as
persuasive, that good cause has been stated for not renewing it. The burden of persuasion will
then shift, requiring the professor to present reasons, with the assistance of an advocate, for
why his or her failure of performance or personal misconduct should be overlooked and a
renewal term granted.
(b) The ABA Standards. This presumption of renewal is legal for the additional reason
that the Policies of the SUNY Board of Trustees confer discretion upon the Dean to approve
policies and procedures in matters of appointment, evaluation, and promotion as required by
the operating requirements of the college. See SUNY Trustees Policies, Art. XI, Title A,
1; id., Art. XII, Title A, 2; id., Art. XX, Title B, 1. The operating requirements of the
college, in this context, are the ABA accreditation standards with which the Law School must
comply in order to certify its students for the bar examinations of New York and other states.
The applicable provision of the ABA Standards for Accreditation Law Schools is
Standard 405(c) the clinical faculty standard which provides as follows: A law school
shall afford to full-time clinical faculty members a form of security of position reasonably
similar to tenure, and non-compensatory perquisites reasonably similar to those provided other
full-time faculty members. A law school may require these faculty members to meet standards
and obligations reasonably similar to those required of other full-time faculty members. See

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http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/201
3_2014_standards_chapter4.authcheckdam.pdf (last visited December 9, 2015). The phrase
emphasized in italics, a form of security of position reasonably similar to tenure, is the
source of the tenure-like protection that all parties agree the Contract provides.
(c) The Faculty Bylaws and Clinical Faculty Appointments Policy. It is mandatory for
the faculty of each college to prepare and adopt bylaws, and for these bylaws to be
consistent with and subject to the Policies of the Board of Trustees of the State University of
New York, the laws of the State of New York, and the provisions of agreements between the
State of New York, and the certified employee organization established pursuant to Article 14
of the Civil Service Law. SUNY Trustees Policies, Art. X, 5 (a) and (b). The
administrative officer at SUNY Buffalo who is responsible for monitoring the consistency of
the Faculty Bylaws with the SUNY Trustees Policies is none other than the state official to
whom Dean Mutua reports, the former-Provost/now President Satish K. Tripathi. See id., Art.
IX, Title A, 3.
The Faculty Bylaws and the Clinical Faculty Appointments Policy both of which
were in place in their present form in spring 2009, the last semester of Professor Malkans
employment provide that Clinical Professors in the Law School must be granted
presumptively-renewable term contracts and in-house due process protections sufficient to
protect their academic freedom in accord with ABA Standard 405(c). The Faculty Bylaws
require that before a Clinical Professor may be dismissed, the faculty shall deliberate and make
a recommendation to the Dean in the Committee on Clinical Promotion and Renewal
(CCPR). Id., III.E.4, (emphasis added).

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The Clinical Faculty Appointments Policy specifies the process that implements the
structure of faculty self-governance adopted in the Faculty Bylaws. See id., I.(e)-(g). It
includes
(i) a presumption of renewal it is expected that, absent unusual circumstances, the
three-year term contracts for Clinical Professors will be renewed,
(ii) a good cause standard of review [i]n cases where the issue is the performance
of the Clinical Professor, the Dean shall base a decision not to renew on clear evidence of a
failure to maintain the demonstrated ability established in the prior reviews and
recommendations in the promotion and renewal process,
(iii) an in-house appeal from a negative decision by the Dean, and
(iv) a recognition that the ABA five year term will become the standard contract term
for Clinical Professors if and when the SUNY Trustees Policies are amended to grant
permission.
Former-Dean Mutua did not allow the faculty to recommend Professor Malkans term
contract renewal or hear his grievance about the denial of his right to due process under the
Bylaws, either in the Committee on Clinical Promotion and Renewal (CCPR) or in any other
in-house forum, including the Grievance Committee. The effect was a complete denial of due
process overriding the rules and regulations implemented by the faculty for the protection of
its integrity and academic freedom in which former-Dean Mutua took the unprecedented step
of firing a member of the voting faculty at the rank of Clinical Professor with a full-time,
indefinitely renewable appointment, without consulting or even informing the faculty.

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(d) The Universitys personnel policies and procedures.

In his August 28, 2008 letter to Professor Malkan, former-Dean Mutua failed to
mention that before the decision became final, he have to would receive in-house due process,
and that after the decision was final, he would have to receive a written notice informing him
of his right to appeal to the Provost. See Notice of Nonrenewal, in Faculty-Staff Handbook,
II.B.2.c, at http://www.business.buffalo.edu/UbbContent/Hrs/facultyhandbook/III.htm#A.
What is particularly unsettling is that former-Dean Mutua argues that his predecessor,
Dean R. Nils Olsen, Jr., abused his authority by granting an ultra vires employment contract
to a Clinical Professor while neglecting to mention that all parties agree that he was doing
exactly the same thing himself providing tenure-like protection to Clinical Professors.
The other two Clinical Professors, George Hezel and Suzanne Tomkins, whose
contracts expired on the exact same date as Professor Malkans, August 31, 2009, and were
due to be renewed at the same time, were brought before the faculty by former-Dean Mutua on
April 22, 2009, at which time they received favorable decisions on their reappointments.
Former-Dean Mutua reported the facultys April 22, 2009 vote to then-Provost Tripathi
and asked for the Provosts endorsement of these two renewals. In this request, former-Dean
Mutua wrote identical memoranda for both Clinical Professors stating that their
reappointment[s] to the title of Clinical Professor [are] pursuant to our Law School Standards
for Clinical Appointments, approved by the faculty on March 20, 2009. These Standards
identify a renewable contract alternative to tenure-track appointments and a regularized
process for appointment and retention decisions at a qualified rank.
Provost Tripathi, when he received these memoranda from former-Dean Mutua, was
already fully aware of the Law Schools regularized process to provide security of
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employment to Clinical Professors reasonably similar to tenure, as required by ABA

Standard 405(c), the Faculty-Staff Handbook, and the Faculty Bylaws.
It was entirely logical for former-Dean Mutua, in his memoranda to then-Provost
Tripathi, to refer to a regularized process because they both knew that the SUNY Trustees
Policies do not forbid presumptively renewable contracts with pre-deprivation due process
rights. They also must have known that then-Provost Tripathi was responsible for the
regularized process for reviewing and granting final approval of term contract renewals. See
Faculty-Staff Handbook, at II.B.1.
To repeat, this was exactly the process that was due Professor Malkan before the end of
his contract term and the process that former-Dean Mutua prevented him from receiving.
In addition, then-Provost Tripathi and former-Dean Mutua certified to the ABA Section
on Legal Education on the occasion of the ABA Site Visit on April 8-11, 2009 that the Law
School had never terminated a Clinical Professor and was in full compliance with Standard
405(c).
This certification took the form of the Self-Study Report, approved by the faculty on
January 21, 2009 and revised on March 2, 2009. On October 17, 2011, the ABA Consultant on
Legal Education, Hulett H. Askew, Esq., by letter, informed then-President John B. Simpson
and former-Dean Makau W. Mutua that the Law Schools reaccreditation was approved and
enclosed the final Findings of Fact of the Site Evaluation Team. The ABAs Findings of Fact
regarding Standard 405(c) were based entirely on the Self-Study Report and information
provided by the Law School while it was on-campus, and included the following:
(48) The Law School recently adopted a new Clinical Faculty
Appointment Policy. The policy provides for the initial
appointment of non-tenure-track clinical faculty who are eligible
25

for long term renewable appointments, as well as for the

promotion to the ranks of associate and full clinical professor and
for a presumption of renewability once a person achieves the
rank of full clinical professor.
(50) The Policy expressly provides that: [i]n cases where
the issue is the performance of the Clinical Professor, the Dean
shall base a decision not to renew on clear evidence of a failure
to maintain the demonstrated ability established in the prior
reviews and recommendations in the promotion and renewal
process.
ABA Site Visit Team Findings of Fact, Oct. 17, 2011, at 9 (emphasis added).
These Findings of Fact prove that then-Provost Satish K. Tripathi was aware that the
Law School was required to provide tenure-like protection to Clinical Professors and was
doing so, unless he wants to admit that he and former-Dean Mutua were attempting to
perpetrate a fraud on the ABA.
CONCLUSION
For the foregoing reasons, Professor Malkan respectfully requests this Court, (1) to grant
his objections and reject the Magistrates report and recommendations, (2) to grant summary
judgment to him on the issue of liability, on the Courts own motion and in the absence of any
disputed facts in the record, and to schedule for trial the issue of damages, and (3) to decide the
motions that are presently before it in a manner that is consistent with the interests of
professional ethics, legality, and substantive justice.
Dated: December 11, 2015
Saint James, New York
/s/_____________________________________
Jeffrey Malkan, pro se plaintiff
12 Valleywood Ct. W
Saint James, New York 11780
(631) 862-6668

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CERTIFICATION PURSUANT TO RULE 72 (c)

I certify that the objections raised in the Memorandum do not raise new legal/factual
arguments. My concurrent request for this Court, in accord with these objections, to grant
summary judgment to the Plaintiff, sua sponte, does not state any facts or arguments that were
not raised to the Magistrate Judge prior to his report and recommendations.

Dated: December 11, 2015

Saint James, New York
/s/_____________________________________
Jeffrey Malkan, pro se plaintiff
12 Valleywood Ct. W
Saint James, New York 11780
(631) 862-6668

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