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Monday, January 16, 2017

Jim Calantjis on Chancellor Carmen Farina's "Fake News" in the Letter 1/16/17 to the NY POST

Jim Calantjis is a well-known, very respected advocate for teachers for many years. He has the following bio on his excellent blog School Leadership Team Support Center:

I am one of the founding members of the School Leadership Team Empowerment Alliance (an incorporated non-profit organization)along with Jacob Morris (a parent advocate from Manhattan) and Val Mello (formerly an education researcher at the National Center for Schools and Communities at Fordham University). I have been an educator in New York City schools for 23 years.I was elected as a teacher representative to our SLT in 1998 and served until 2006.During that time, I was Co-Chairman(2 years) and Chairman(2 years)of our School Leadership Team. I became an advocate for SLT empowerment in early 2004 as I saw that the NYCDOE was not supporting the collaborative role of SLTs as mandated by State law and Chancellor's Regulations. As a result, SLTs were shut out of the budget process and Principals began to dominate teams.Due to lack of training and lack of DOE committment, most teams are not functioning today. My purpose is to support parents and teachers on SLTs through this web site

Below is his letter in response to Carmen Farina's letter to the NYPOST:

From: calantjis <>
To: cgfarina <>
Cc: sedelman <>; letters <>
Sent: Mon, Jan 16, 2017 11:51 am
Subject: Letter to NY Post by Chancelor Farina -1/16/2017

 Chancellor Farina in her letter to the NY Post entitled, "Progress in the City Schools" (1/16/2017) claims, " NYC's schools are the most successful they have ever been." She then cites certain "facts" to support her claims.
  However, when we delve more deeply into these assertions, we find them mostly hollow. She cites a graduation rate of 70.5% (2015-2016) but leaves out that only about 34.6% of these students are "college ready." "Many High Schools had 70% average graduation rates but college readiness rates lower than 20%."(Daily News, June 29,2016). She cites a college enrollment rate of 55%, as if that low number were anything to brag about,even though many of these students will never graduate due to inadequate academic preparation.A reason for this is that the High School graduation rate is inflated due to social promotion practices such as "credit recovery" and pressuring teachers to pass students regardless of merit.

 Chancellor Farina says the  dropout rate  "is the lowest on record", but at 9%, is still way too high for a school system of over 1.1 million students.

 While she cites that crime "is down 35% over 5 years", the problem of lack of discipline and disregarding of school rules is an issue that also needs to be addressed. Students are setting the tone in many of our middle and high schools while teachers feel helpless as administrators play the "blame game" and the DOE waters down discipline codes because of outside political pressure. Absenteeism and cutting of classes is rampant.

 The Chancellor mentions "record numbers of parents involved in their children's education", yet, School Leadership Teams, which  are made up of 50% parents are a scam. Principals have usurped the lawful responsibilities of School Leadership Teams to develop Comprehensive Educational Plans and participate in the development of school budgets. The DOE consistently undermines SLTs as legal school governance bodies. They have tried to keep  SLT meetings closed so that there is no transparency until the recent court decision on the Open Meetings Law.

 She states "working with dedicated teachers and principals",yet continues to maintain an ATR pool of teachers, guidance counselors, social workers,etc., who are dedicated educators. With nearly 1000 of these educators doing substitute duties in school rotation, the DOE wastes about 100 million taxpayer dollars a year. The ATR pool should be disbanned and these educators permanently placed.

 The Chancellor ends with the statement that everyone is entitled "to their own opinion, but not their own facts", criticizing  a Post Editorial citing " the city's failures to educate kids in its public schools". However, the facts the Chancellor states do not support the conclusion that the NYC schools are " the most successful they have ever been" and "moving in the right direction."

 The Chancellor is an experienced educator with many years in the NYC public school system. She knows what the real problems are and that they will only be fixed when we hold students to high academic standards and discipline expectations, respect our teachers, and truly invite parents to participate.

James Calantjis
NYC Educator
Middle Village, NY

Wednesday, January 11, 2017

Mobbing at the Workplace

When an employee "loses it" at work and decides to get revenge, he/she may gather a group of friends or act alone, but the behavior which occurs is shocking. Most prevalent is a constant belittling, for little or no reason. The effort to diminish a person is unrelenting.

There is no  place for anyone who acts in such a way. They need help, counseling, and to be in an environment far from people who want to work.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Noa Zanolli

When Conflict In The Workplace Escalates To Emotional Abuse

 by Noa Zanolli

Millions of men and women of all ages, ethnic, and racial backgrounds all across the U.S. hate going to work, gradually fall into despair and often become gravely ill. Some flee from jobs they used to love, others endure the situation unable to figure a way out. "Every day was like going into battle. I never knew when the next bomb would be dropped. I was afraid to trust anyone for fear they were the enemy. My physical and mental reserves were depleted. I knew I had to have relief soon. But there was no letup," said Diana when we asked how she felt each day. What is going on? Why is this happening? How prevalent is this? What can be done?
What we are describing here has been identified as "mobbing" and "bullying" at the workplace. Co-workers, superiors or subordinates, attack a person's dignity, integrity and competence, repeatedly, over a number of weeks, months or even years. A person is being subjected to emotional abuse, subtly or bluntly, often falsely accused of wrongdoing, and is persistently humiliated.
Dr. Heinz Leymann, a psychologist and medical scientist, pioneered the research about this workplace issue in Sweden in the early 80ties. He identified the behavior as mobbing and described it as "psychological terror" involving "hostile and unethical communication directed in a systematic way by one or a few individuals mainly towards one individual." Leymann identified some 45 typical mobbing behaviors such as withholding information, isolation, badmouthing, constant criticism, circulation of unfounded rumors, ridicule, yelling, etc.
Because the organization ignores, condones or even instigates the behavior, it can be said that the victim, seemingly helpless against the powerful and many, is indeed "mobbed." The result is always injury -- physical or mental distress or illness, social misery, and often, but not always, expulsion from the workplace. And sadly, the victims did not have a reputation of not performing well, not meeting organizational standards, or who could not get along with others to begin with. Quite the contrary, more often than not, the targets had been esteemed members of the organization.
Although mobbing and bullying behaviors overlap, mobbing denotes a "ganging up" by the leader--organization, superior, co-worker, or subordinate--who rallies others into systematic and frequent "mob-like" behavior. In contrast to bullying, mobbing is clearly a group behavior. Bullying, on the other hand, denotes a one-on-one harassment. In a mobbing, management is often tacitly involved. This is why, in such a case, a victim rarely can find recourse.
Mobbing can happen to anyone. It is not aggression against someone who belongs to a protected class, i.e. discrimination based on age, gender, race, creed, nationality, disability or pregnancy. It is therefore that bullying/mobbing behaviors have been termed general or "status-blind" harassment by Prof. David Yamada of the Suffolk University Law School.
Impact of Mobbing
Mobbing--the emotional abuse--is a form of violence. In fact, in the book Violence at Work, published by the International Labor Office (ILO) in 1998, mobbing and bullying are mentioned in the same list as homicide, rape, or robbery. Even though bullying and mobbing behaviors may seem "harmless," in contrast to rape or other manifestations of physical violence, the effects on the victim--especially if the mobbing is happening over an extended period of time--have been so devastating for individuals that some have contemplated suicide. And, we cannot exclude that some cases of the "going postal syndrome" may not also have been a consequence of what those individuals perceived as emotional abuse on the job.
Mobbing and bullying affect primarily a person's emotional well-being and physical health. Depending on the severity, frequency, and duration of the occurrences and how resilient an individual may be, persons may suffer from a whole range of psychological and physical symptoms: from occasional sleep difficulties to nervous breakdowns, from irritability to depression, from difficulties to concentrate, to panic- or even to heart attacks. What were occasional absences may become frequent and extended sick leaves.
Many persons who have become a target of a mobbing are damaged to such an extent that they can no longer accomplish their tasks. At the end, they resign--voluntarily or involuntaril--,are terminated, or forced into early retirement. Ironically, the victims are portrayed as the ones at fault, as the ones who brought about their own downfalls. And in numerous instances, the symptoms after a person has been terminated or resigned, can continue and intensify and have led to the diagnosis of post-traumatic stress disorder, PTSD.
And it is not only a person's health and sense of well-being that is seriously affected. Their families and their organizations are gravely impacted as well. Relationships suffer, and company productivity is impacted as energies revolve around the mobbing and divert attention from important and significant tasks at hand.
How It Starts and Why It Happens
It often starts with a conflict, any type of conflict. However, no matter how hard an individual may try to resolve an issue, it does not get resolved. The individual does not seem to get recourse. The issue does not go away and escalates to a point of no return.
What could have been resolved with a bit of good will and the appropriate mechanisms in place, now becomes a contest between who is right and who is wrong. Some of the accusations and demeaning attacks may be guided by a scapegoat mentality, the need for personal power over others, and by personal animosities, by fears or jealousies. Group-psychology and a complex array of social-organizational dynamics begin to play their part.
How, you might ask, when there seem to be more structures and laws designed to protect workers than ever before, is this particular workplace behavior--mobbing--so prevalent and yet awareness about the issue so scarce? We believe there are three reasons.
One is that mobbing behaviors are ignored, tolerated, misinterpreted or actually instigated by the company or the organization's management as a deliberate strategy. The second reason is that this behavior has not yet been identified as a workplace behavior clearly different from sexual harassment or discrimination. And thirdly, more often than not, the victims are worn down. They feel exhausted and incapable of defending themselves, let alone initiating legal action.
The Costs of Mobbing
In 1991 C. Brady Wilson, a clinical psychologist who specializes in workplace trauma, wrote in the Personnel Journal (now Workforce Magazine) that real or perceived abuse of employees amounted to a loss of billions of dollars: "Workplace trauma, as psychologists refer to the condition caused by employee abuse, is emerging as a more crippling and devastating problem for employees and employers alike than all the other work-related stresses put together." The actual costs in terms of lost productivity, health care and legal costs, not to speak of the psycho-social implications, are yet to be measured.
Dr. Harvey Hornstein, professor of social-organizational psychology at Columbia University Teachers College, in his book Brutal Bosses and Their Prey, estimated that as many as 20 million Americans face workplace abuse on a daily basis--a near epidemic.
Awareness Grows
Nevertheless, awareness is growing. Bullying and mobbing at work is increasingly being discussed in the media and in professional organizations. Researchers in organizational behavior are now devoting their attention to this topic and a number of articles have appeared in academic journals and a handful of books have been written over the last three years devoted to work abuse, brutal bosses, bullying, and mobbing.
What Can Be Done
Persons who have been mobbed or become targets of bullies have several options. Most importantly, they need to understand that there is a name for what they are experiencing, that the phenomenon is well known and is increasingly being researched in this country. They need to understand that they have become victimized and that there is very little that they could have done differently. Secondly, they need to assess all their options in the short, medium, and long run: Is there any way to gain recourse that they haven't tried yet? Is finding another job within the company a possibility? Are they prepared to look for another job? What do they need to do to prepare for the transition? Do they need medical or therapeutic intervention? We advise people to weigh all their options carefully, to be assertive and most importantly, to take control of their situation. And, we advise to leave their workplace sooner rather than later and accept temporary sacrifices rather than to endure ongoing humiliation that could have much more serious health effects later.
Management too, needs to be vigilant and spot any early signals of mobbing. A company policy that enforces respectful treatment of employees and rewards civility at the workplace can go along way in preventing mobbing from occurring.
Because of the extensive literature and media coverage in Europe, the awareness of mobbing in the workplace has become very widespread there. Mobbing has not only become a household word in Scandinavia and in German-speaking countries but several countries have enacted new proactive and protective occupational safety laws, including emotional well-being on the job, to address the mobbing behavior legally. For example, in 1993 the Swedish National Board of Occupational Safety and Health has adopted an Ordinance Concerning Victimization at Work. In addition, new organizations have been created to help victims of mobbing all across Europe, and Australia. Measures have been initiated in a relatively brief time period to deal with mobbing behaviors, help mobbing victims and help prevent further mobbing from occurring. For example, telephone hot lines have been installed and contact addresses for receiving counseling or advice have been published in the daily press.
Mobbing is emotional mistreatment, abuse, committed directly or indirectly by a group of co-workers directed at anybody. People who have been affected by mobbing are suffering immensely. Mobbing is as a serious workplace issue most often leading to voluntary or nonvoluntary resignation or dismissal. The social and economic impact of the mobbing syndrome has yet to be measured in quantitative terms in the U.S.
Mobbing can only persist as long as it is allowed to persist. Organizational leadership plays the most important part in its prevention. By enforcing decency, civility, and high ethical standards in the workplace and by creating a nourishing environment, bullying and mobbing will not surface. There are millions of enlightened managers and leaders and thousands of companies that do just that. They serve as good examples and places of refuge.

Noa Zanolli, Ph.D., is a Swiss social anthropologist, teacher and mediator living in Bern, Switzerland. In the U.S., she worked for several years as a mediator in a community mediation center in Ames, IA, was Director of Education at the Iowa Peace Institute, and has been working internationally as a mediator trainer. She now is a member of the editorial board of the German/Swiss/Austrian quarterly journal „perspektive mediation“ ( and an associate of the IMTD (Institute for Multi-Track Diplomacy,  Her website lists her books and articles (some in English, some in German). She is co-author of "Mobbing: Emotional Abuse in the American Workplace". The book can be downloaded as a PDF at

NY State Regents Discuss Overhauling The Teacher Certification Process

Regents discuss revamping New York state teacher certification requirements

New York may ease the burden on prospective educators by overhauling what critics contend is a difficult and costly teacher certification process.
On Tuesday, the Board of Regents discussed a set of recommendations proposed by a group of education officials and experts charged with evaluating the state’s current requirements. The state began to discuss strengthening certification exams in 2009 in an attempt to raise standards for those entering the teaching profession.
But some critics say those changes went too far and have become roadblocks, particularly for low-income aspiring teachers and those of color.
Prospective teachers in New York state have to clear four certification hurdles, demonstrating teaching skills, content knowledge and reading comprehension.
The proposed changes, which the policymaking body will likely vote on at a future meeting, include reviewing the passing score for the certification test, providing more vouchers to cover the exam’s cost, and possibly eliminating an exam that has produced significantly lower passing rates for black and Hispanic aspiring teachers.

Regents Chancellor Betty Rosa said the students who stand to benefit are often high-quality applicants faced with unfair testing constraints.
“These are students who have gotten very high scores … Their GREs [a graduate school entrance test] were through the roof,” Rosa said. “These were exceptional students and many of them students of color”
The state’s teachers union quickly praised the recommendations for maintaining rigor and eliminating unnecessary obstacles.
“The task force recommendations strike the right balance. If the Regents adopt them — and we urge them to do that — the new requirements will help to ensure that aspiring teachers know their subject area and how to teach it,” said NYSUT Vice President Catalina Fortino in a statement. “At the same time, it reduces some of the costs associated with these Pearson tests and eliminates an unnecessary and duplicative exam.”
The group called for state officials to potentially “recalibrate” the passing score on the edTPA, a test that requires prospective teachers to submit portfolios of work including lesson plans and a video of themselves teaching. And instead of relying entirely on test scores for those on the bubble, officials recommended considering additional factors like grade point average or a professor’s recommendation.
Part of the goal is likely to increase passing rates, since only 77 percent of aspiring teachers have passed the edTPA since its rollout in New York. Those who fail the test are still allowed to take the state’s previous exam, which reportedly yielded much higher pass rates.
Some Regents expressed concerns the changes could come across as lowered standards.
“We spent a lot of time talking about raising the bar,” said Regent Andrew Brown. “As I sat here and listened, it does sound like, at times, we’re talking about making it easier.”
But Regent Kathleen Cashin, who chairs the board’s committee on higher education, argued that revising the standards is fair since the exam is new and requires a slow, more deliberate rollout.
“Phasing in and implementation is wise,” she said. “It’s not weakening.”
The Regents discussed giving prospective teachers more time to prepare for assessments and to practice their craft. Currently, only 40 days inside a classroom are required.
“In medicine, if we had 40 days of internship we wouldn’t make very good doctors,” said Regent James Cottrell, who is a medical doctor.
The task force also recommended taking a hard look at — and possibly eliminating — another certification exam, known as the “Academic Literacy Skills Test,” while exploring other ways for teachers to demonstrate their literacy skills.
That exam, which tests things like writing and reading comprehension, has proven disproportionately difficult for aspiring teachers of color to pass. In the 2013-14, only 48 percent of prospective black teachers and 56 percent of prospective Hispanic teachers passed the exam, compared to 75 percent of prospective white teachers.
Both the Board of Regents and New York City have launched programs to increase the number of educators of color, particularly men of color, entering the teaching profession. Creating a test that discourages those students is antithetical to the state’s mission, Regents said.
“Diversity is not an option,” Regent Cashin said. “It’s essential.”
By Monica Disare         MDISARE@CHALKBEAT.ORG 

Thursday, January 5, 2017

The Outrageous Actions of David Jimenez, Brian Bradley, Daniel Albetta and Dennis Hernandez all at the Manhattan Center For Science and Mathematics

I think the Complaint filed by Michael P. Thomas shows outrageous actions taken against him by David Jimenez, Daniel Albetta, the school’s assistant principal of security; Brian Bradley, the assistant principal of special education; and Dennis Hernandez, school Dean. Read below. Mr. Thomas settled.

Thank you, students of MCSM for  contacting me!

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Michael P. Thomas' Amended Complaint

Michael P. Thomas' Complaint:
MICHAEL P. THOMAS,                                                     :
Plaintiff,                                   14-cv-8019 (JMF)
-v-                                                                MEMORANDUM AND ORDER
Defendants.                          :
JESSE M. FURMAN, United States District Judge:
This is the second case brought by Michael P. Thomas, a former public school teacher proceeding pro se, against the administration of the school where he was formerly employed.1 In this case, Thomas alleges principally that administrators violated his First Amendment rights by preventing him from distributing information about his blog to students. Thomas also seeks to pursue a claim of malicious prosecution in violation of the Fourth Amendment. Defendants move to dismiss the Amended Complaint (the “Complaint”) in its entirety. For the reasons explained below, that motion is largely denied, and Plaintiffs request to amend his Complaint to add a malicious prosecution claim is granted. In the first case, Thomas alleged that the Special Commissioner of Investigations for the New York City School District violated his due process rights by inadequately investigating his claims that the administration had retaliated against him in violation of New York law. The Court dismissed the case on July 10, 2015. (No. 14-CV-8554, Docket No. 21).
Defendants also request a stay of discovery pending the Court’s resolution of the motion to dismiss. (Mem. Law Supp. Defs.’ Mot. To Dismiss Am. Compl. (Docket No. 35) (“Defs.’ Mem.”) 13-14). That request is denied as moot, as the Court has not yet even entered a discovery schedule.
Generally, in considering a motion pursuant to Rule 12(b)(6), courts are limited to the facts alleged in the complaint and are required to accept those facts as true. See, e.g., LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009). A court may, however, consider documents attached to the complaint, statements or documents incorporated into the complaint by reference, matters of which judicial notice may be taken, public records, and documents that the plaintiff either possessed or knew about, and relied upon, in bringing the suit. See, e.g., Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (applying rule to district courts). In addition, because a pro se plaintiffs allegations must be construed liberally, it is appropriate for a court to consider factual allegations made in a pro se plaintiffs opposition memorandum, as long as the allegations are consistent with the complaint. See, e.g., Braxton v. Nichols, No. 08-CV-8568 (PGG), 2010 WL 1010001, at *1 (S.D.N.Y. Mar. 18, 2010); cf. Gill v. Mooney, 824 F.2d 192,
195 (2d Cir. 1987) (considering a pro se plaintiffs affidavit in opposition to a motion to dismiss in addition to the complaint). Accordingly, the following facts are taken from the Complaint, exhibits attached thereto, Plaintiffs opposition papers (to the extent they are consistent with the Complaint), and documents of which the Court may take judicial notice.
Plaintiff was employed by the New York City Department of Education as a mathematics teacher at the Manhattan Center for Science and Mathematics (“MCSM”) from September 1989 through July 2012, when he retired. (Am. Compl. (Docket No. 33) ^ 5). A few months after his retirement, Plaintiff created a blog criticizing the administration of MCSM. (Id. ^ 11). In January 2013, he was distributing business cards with information about the blog to MCSM students, when he was approached by Defendants Daniel Albetta, the school’s assistant principal of security; Brian Bradley, the assistant principal of special education; and Dennis Hernandez, who was performing the duties of the school’s dean of students. (Id. ^ 7-9, 12-13). Although Plaintiff attempted to distance himself from them, Albetta, Bradley, and Hernandez followed him and prevented him from interacting with students. (Id. ^ 16). Plaintiff was then approached by Defendant David Jimenez (together with Albetta, Bradley, and Hernandez, “Defendants”). (Id.
^ 18). Jimenez extended his arm “as if to shake hands,” but then grabbed Plaintiff’s hand, “threw himself to the ground,” and claimed that Plaintiff had assaulted him. (Id. ^ 19). When Plaintiff attempted to walk away, Albetta called 911, and Plaintiff was arrested. (Id. ^ 20-21).
Plaintiff was subsequently charged with assault in the third degree (although the charge was later reduced to attempted assault in the third degree) and harassment in the second degree, and was placed in a holding cell pending arraignment. (Id. ^ 21, 23). After his arraignment, Plaintiff was released on his own recognizance, but the court issued an order of protection prohibiting Plaintiff from having any contact with Jimenez. (Id. ^ 24). Upon the advice of counsel, Plaintiff took down his blog. (Id. ^ 25, 33). Plaintiff went to trial in September 2013. (Id. ^ 27). At trial, Defendants testified that students had reported that a man was handing out flyers near the school and harassing students. (Id. ^ 28). They further testified that they had a duty to ensure the safety of students along a route frequently used by students to get to MCSM, which they called the “safe corridor.” (Id. ^ 29). Plaintiff was found guilty of harassment in the second degree, but acquitted of the assault charge. (Id. ^ 35). As a result of the harassment conviction, the order of protection against Plaintiff was continued — and expanded to prohibit Plaintiff from entering the “safe corridor.” (Id. ^ 30).
Plaintiff filed this action on October 6, 2014, alleging that Defendants violated his First Amendment rights by preventing him from informing students about his blog and by filing false charges against him, which led him to remove the blog from the Internet. (Docket No. 1). Although such a claim is not stated explicitly in the Complaint, Plaintiff also believes that Defendants’ actions constituted malicious prosecution. (Docket No. 39). Defendants counter that the Complaint should be dismissed because Plaintiff has not adequately alleged that they were acting under color of state law and because Plaintiff may not bring claims that imply the invalidity of his harassment conviction. They further argue that the Court should neither consider Plaintiff’s newly raised malicious prosecution claim nor grant him leave to amend the Complaint. The Court will address each argument in turn.
In evaluating a motion to dismiss pursuant to Rule 12(b)(6), a court must accept all facts set forth in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. See, e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008). A claim will survive a Rule 12(b)(6) motion, however, only if the plaintiff alleges facts sufficient “to state a claim to relief that is plausible on its face.” BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). A plaintiff must show “more than a sheer possibility that a defendant has acted unlawfully,” id., and cannot rely on mere “labels or conclusions” to support a claim, Twombly, 550 U.S. at 555. If the plaintiffs pleadings “have not nudged [his or her] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Id. at 570. Here, because Plaintiff is proceeding pro se, his Complaint “must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted). Nonetheless, a pro se litigant must still state a plausible claim for relief. See, e.g., Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). In other words, the Court’s “‘duty to liberally construe a plaintiffs complaint is not the equivalent of a duty to re-write it.’” Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (quoting 2 Moore’s Federal Practice § 12.34[1][b], at 12-61).
Plaintiff’s Complaint alleges two First Amendment claims against Defendants, one for preventing him from distributing information about his blog to students and one for causing criminal charges to be filed against him, which resulted in the protective order, which, in turn, led him to take down his blog. (Am. Compl. ^ 34-35). Plaintiff would have a hard time maintaining the latter claim, as he voluntarily took the blog down based on the advice of his own criminal counsel and does not allege that he was required to do so by the order of protection. (Id. ^ 24-25). But, as Plaintiff himself acknowledges, the claim suffers from a more fundamental problem: Insofar as it is premised on the order of protection, and the order of protection was continued as a result of his conviction for harassment, the claim depends on the invalidity of his criminal conviction and sentence. (Pl.’s Mem. Law Opp’n Def.’s Mot. To Dismiss Am. Compl. (Docket No. 39) (“Pl.’s Mem.”) 1, 16-17). It follows that Plaintiff cannot pursue the claim unless and until his conviction is vacated. See Heck v. Humphrey, 512 U.S. 477, 489-90 (1994) (holding that a plaintiff may not bring an action pursuant to Section 1983 that “necessarily require[s] the plaintiff to prove the unlawfulness of his conviction”); Poventudv. City of N.Y., 750 F.3d 121, 129-30 (2d Cir. 2014) (similar). Accordingly, Defendants’ motion to dismiss is granted on consent as to that claim.
There is no basis, however, to dismiss Plaintiff’s claim that Defendants violated the First Amendment by preventing him from distributing information concerning his blog. Defendants argue that the claim must be dismissed because they were not acting “under color of state law,” as required for them to be held liable under Section 1983. See, e.g., Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). More specifically, Defendants argue that when they confronted Plaintiff they were acting as private citizens because they “had no power or authority under state law to prevent Plaintiff from handing out his cards.” (Defs.’ Mem. 6-9). It is well established, however, that where a defendant “uses his state authority to violate the plaintiff’s rights, he may be said to act under color of state law even though he acts contrary to law.” Rodriguez v. N.Y. City Transit Auth., No. 06-CV-13762 (RJS), 2009 WL 3817298, at *4 (S.D.N.Y. Nov. 10, 2009) (citing cases). Thus, to satisfy the state-action requirement, Plaintiff need not allege that Defendants had actual authority to prevent him from handing out business cards to students; he need allege only that Defendants “purport[ed] to act according to official power.” Emanuele v. Town of Greenville, 143 F. Supp. 2d 325, 331 (S.D.N.Y. 2001) (emphasis added); see also Pitchell, 13 F.3d at 548 (stating that an off-duty police officer could be found liable if he invoked the “apparent authority” of the police department); Dean v. City of Buffalo, 579 F. Supp. 2d 391, 404 (W.D.N.Y. 2008) (“A person may also be found to act under color of law when he acts under pretense of law.”). Construed liberally, the Complaint does just that, as it alleges that Defendants testified at Plaintiff’s trial that they approached him pursuant to their duty as school officials to maintain the safe corridor. (Am. Compl. ^ 29). In other words, the Complaint alleges that Defendants claimed to have authority, by virtue of their positions at MCSM, to prohibit Plaintiff from interacting with students at that location. That is sufficient at this stage.
B. Malicious Prosecution
Next, the Court turns to Plaintiffs request for leave to amend his Complaint to add a claim of malicious prosecution. (Pl.’s Mem. 11-16 & n.2). Defendants’ sole objection is that such an amendment would be futile. (Reply Mem. Law Supp. Defs.’ Mot. To Dismiss Am. Compl. (Docket No. 44) (“Defs.’ Reply”) 6-9). To prevail on a malicious prosecution claim, a plaintiff must prove: “(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant’s actions.” Manganiello v. City of N.Y., 612 F.3d 149, 171 (2d Cir. 2010). Here, Defendants argue that Plaintiff cannot satisfy the second prong — termination of the proceeding in his favor — because he was convicted of harassment. (Defs.’ Reply 7-9). But Plaintiff was acquitted of assault, and the Second Circuit has recognized that “[a] plaintiff charged with crimes of varying degrees of seriousness, and convicted on the lesser charges, may nonetheless sue for malicious prosecution on the more serious claims that were terminated in his favor.” Green v. Montgomery, 219 F.3d 52, 59-60 (2d Cir. 2000). The question, then, is whether the assault charge was “so closely intertwined with the offense of conviction” — that is, the harassment charge — “that there is no reasonable basis to conclude that the acquittal is sufficiently distinct to support a claim of malicious prosecution.” Fernandez v. City of N.Y., No. 02-CV-8195 (JGK), 2003 WL 21756140, at *6 (S.D.N.Y. July 29, 2003). To determine whether two charges are sufficiently distinct, a court must examine each charge separately, keeping in mind that “[c]harges may be sufficiently
Although Plaintiff concedes that the Complaint does not “explicitly” include a malicious prosecution claim (Pl.’s Mem. 11 n.2), he appears to ask the Court to read such a claim into his Complaint on the ground that the facts alleged would support one. It is not clear, however, that the Complaint, as currently drafted, would support a malicious prosecution claim. In any event, in the Court’s view, the better course is to treat Plaintiff’s request as one for leave to amend.
distinct even if they arose out of the same events occurring on the same occasion.” Reid v. City of N.Y. No. 00-CV-5164 (RCC) (JCF), 2004 WL 626228, at *5-6 (S.D.N.Y. Mar. 29, 2004).
Here, Plaintiff may have difficulty alleging — let alone proving — that the assault charge was sufficiently distinct from the harassment charge to pursue a claim of malicious prosecution. See, e.g., Fernandez, 2003 WL 21756140, at *6-7 (finding that a plaintiff who was acquitted of assault and convicted of harassment had not alleged that the charges were sufficiently distinct to pursue a claim of malicious prosecution). But the Court cannot reach that conclusion as a matter of law, particularly without giving Plaintiff an opportunity to amend his Complaint to include any and all relevant facts. Plaintiff could allege, for example, that he was convicted of harassment based on his conduct toward Albetta, Bradley, and Hernandez, while the assault charge was based on his supposed throwing of Jimenez to the ground. Alternatively, Plaintiff could allege facts to support a conclusion that the factfinder at his criminal trial found him guilty of harassing Jimenez (instead of, or in addition to, the other Defendants), but also found that Jimenez had staged the supposed assault. In either case, the allegations might be sufficient to show that Plaintiff received a “termination in his favor” on the assault charge, notwithstanding his conviction for harassment. Cf. Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991) (holding that a probable cause finding supporting disorderly conduct charges did not preclude the plaintiffs malicious prosecution claim for resisting arrest or assault because, otherwise, “an officer with probable cause as to a lesser offense could tack on more serious, unfounded charges which would support a high bail or a lengthy detention, knowing that the probable cause on the lesser offense would insulate him from liability for malicious prosecution on the other offenses”). In any event, mindful that Plaintiff is proceeding pro se, the Court concludes that the more appropriate, and prudent, course is to allow him to amend his Complaint.4
For the reasons stated above, Defendants’ motion to dismiss is granted on consent as to Plaintiffs claim that Defendants violated his First Amendment rights in causing criminal charges to be filed against him, but is otherwise denied. Further, Plaintiff is granted leave to amend his Complaint to add a claim for malicious prosecution. Any such Second Amended Complaint shall be filed within 30 days of this Memorandum Opinion and Order. Plaintiff is reminded that any Second Amended Complaint would replace, not supplement, the current Complaint, and advised that he should include any and all facts that may be relevant to his malicious prosecution claim, as it is unlikely that he would be given an additional opportunity to amend in the event that Defendants move to dismiss on the same ground that they oppose leave to amend here.
The Clerk of Court is directed to terminate Docket No. 34 and to mail a copy of this Memorandum Opinion and Order to Plaintiff.

Date: September 1, 2015
Defendants appear to suggest that allowing Plaintiff to pursue a malicious prosecution claim based on the assault charge would imply the invalidity of his harassment conviction (Defs.’ Reply 9), but that argument borders on frivolous. As noted above, the malicious prosecution claim can go forward only if the acquittal on the assault charge constitutes a termination in Plaintiff’s favor despite his (unchallenged) conviction on the other charge.
More on malicious prosecution and probable cause:

  • No. 10-4955-cv (2d Cir. Dec. 23, 2011)


We have considered plaintiffs' remaining arguments and find them to be without merit. 
For the foregoing reasons, the judgment of the district court is AFFIRMED.

Circuit Judges. 

SCOTT A. KORENBAUM, Esq. (Frederick K. Brewington, Esq., 
on the brief), New York, New York.

ANDREW S. WELLIN, Of Counsel (Larry A. Sonnenshein, Of Counsel, 
on the brief), for Michael A. Cardozo, Corporation Counsel of the

City of New York, New York, New York.

Appeal from a judgment of the United States District Court for the Southern District of New York (Richard M. Berman, Judge).
Plaintiffs Paul Selinger and Marsha Selinger appeal an award of summary judgment in favor of defendant Detective William Greene on claims of malicious prosecution and abuse of process brought pursuant to 42 U.S.C. § 1983 , and the dismissal of related state law claims for lack of jurisdiction. We review an award of summary judgment de novo, see Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010), "constru[ing] the evidence in the light most favorable to the plaintiff, [and] drawing all reasonable inferences and resolving all ambiguities in [his] favor," Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (internal quotation marks omitted). We assume familiarity with the underlying facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm. 

1. Malicious Prosecution
Because Marsha Selinger's claims are derivative of her husband's, we hereafter refer only to Paul Selinger's claims in discussing plaintiffs' appeal. Further, because plaintiffs do not appeal the award of summary judgment in favor of defendant the City of New York, we do not discuss that award further.

Selinger contends that he adduced sufficient evidence to defeat summary judgment on the question of whether Greene lacked probable cause to initiate Selinger's prosecution for insurance fraud. See Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010) (holding that § 1983 claim for malicious prosecution is assessed by reference to elements of related state tort, which, under New York law, requires proof of absence of probable cause). That claim fails for several reasons. First, because Selinger was prosecuted on an indictment, Greene is entitled to a presumption of probable cause, which may be rebutted only "by evidence that the indictment was procured by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith." Id. at 162 (internal quotation marks omitted). Plaintiffs have failed to introduce evidence of any such misconduct.

Second, even without the benefit of a presumption, there is no genuine issue as to the existence of probable cause to initiate the challenged prosecution. While probable cause requires more than "mere suspicion" of wrongdoing, Mallory v. United States, 354 U.S. 449, 454 (1957), its focus is on "probabilities," not "hard certainties," Illinois v. Gates, 462 U.S. 213, 231 (1983) (internal quotation marks omitted). It does not equate to a prima facie or preponderance showing. See id. at 235; Spinelli v. United States, 393 U.S. 410, 419 (1969). Nor does it demand a showing that a good faith belief be "correct or more likely true than false." Texas v. Brown, 460 U.S. 730, 742 (1983). It requires only such facts as make wrongdoing probable. See Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007). 

Such probability was established as a matter of law in this case from evidence showing that, before referring Selinger to the district attorney's office for prosecution, Greene had adduced evidence that the health clinic with which Selinger was associated had submitted fraudulent insurance claims on behalf of "Igor Gabjilov," an undercover police officer whom Selinger diagnosed with temporomandibular joint ("TMJ") disorder. Those claims sought reimbursements for medical treatments that Gabjilov purportedly received but that, in fact, were never provided. On at least one of these fraudulent claim forms, Paul Selinger's stamped signature appeared on the "signature of provider" line.

Plaintiffs assert that the record would permit a finding that Selinger legitimately diagnosed the undercover officer as suffering from TMJ disorder. But the validity of Selinger's medical diagnosis is irrelevant. As plaintiffs recognize, "[t]he essence of the insurance fraud scheme . . . was fraudulent billing," Le., insurance claims filed for medical treatments that were never performed. Pl.'s Br. 44. On this point, Greene undoubtedly had evidence of probable wrongdoing by Selinger: a fraudulent reimbursement claim bearing Selinger's stamped signature as the provider of services never performed. That document constituted "reasonably trustworthy information as to . . . facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief than an offense has been . . . committed by the person to be arrested." Manganiello v. City of New York, 612 F.3d at 161 (internal quotation marks omitted).
In urging otherwise, Selinger observes that Greene did not know whether Selinger actually stamped the form or was otherwise involved in submitting the insurance bills. But Selinger adduced no evidence suggesting that Greene had reason to question Selinger's signature on the claims form. See id. (recognizing that "failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause" (internal quotation marks omitted)). "[T]he fact that an innocent explanation may be consistent with the facts alleged . . . does not negate probable cause, . . . and an officer's failure to investigate an arrestee's protestations of innocence generally does not vitiate probable cause." Panetta v. Crowley, 460 F.3d 388, 395-96 (2d Cir. 2006) (internal quotation marks omitted).

Because Selinger has not submitted evidence raising a genuine issue of material fact as to lack of probable cause, summary judgment was properly granted to Greene on this claim. 

2. Abuse of Process
Selinger's § 1983 claim for abuse of process requires him to prove that Greene acted with malice, i.e., "with intent to do harm without excuse [or] justification, and . . . in order to obtain a collateral objective that is outside the legitimate ends of the process." Savino v. City of New York, 331 F.3d 63, 70 (2d Cir. 2003) (internal quotation marks omitted). On this record, there is no proof that Greene acted with such intent. To the extent Selinger urges an inference of malice from the lack of probable cause, see id. (noting that lack of probable cause permits inference of malice), his claim fails for reasons discussed in the prior section of this order. 
Nor can plaintiffs sustain this claim on the grounds that Greene sought Selinger's arrest and indictment for the collateral purposes of extracting restitution payments and attracting publicity. The record shows that the district attorney's office, not Greene, was responsible for demanding restitution in exchange for Selinger's guilty plea, as well as for the news release issued after Selinger and his co-defendants were indicted. Because those actions cannot be ascribed to Greene, Selinger fails to establish a triable issue of malice. Greene was therefore entitled to summary judgment on the abuse of process claim. 

3. State Law Claims
Because Greene was entitled to summary judgment on Paul Selinger's federal claims, the district court was within its discretion to decline exercising supplemental jurisdiction over plaintiffs' remaining state law claims. See Doninger v. Niehoff, 642 F.3d 334, 357 (2d Cir. 2011). 

4. Conclusion
We have considered plaintiffs' remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.