18‐905‐cv Rosenwasser v. Fordham Univ.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ).

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

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of May, two thousand nineteen.

PRESENT: BARRINGTON D. PARKER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x MATTHEW J. ROSENWASSER, Plaintiff‐Appellant, v. 18‐905‐cv FORDHAM UNIVERSITY, JOHN CARROLL, Head of Security, JOSEPH MCSHANE, President, Defendants‐Appellees. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x FOR PLAINTIFF‐APPELLANT: Matthew J. Rosenwasser, pro se, New York, New York.

FOR DEFENDANTS‐APPELLEES: James Gerard Ryan, Cullen and Dykman LLP, Garden City, New York.

Appeal from the United States District Court for the Southern District of New York (Sullivan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Matthew Rosenwasser, proceeding pro se, appeals the district courtʹs judgment entered March 15, 2018, dismissing his claims under 42 U.S.C. § 1983 and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., against defendants‐appellees Fordham University and its head of security and president (collectively, ʺFordhamʺ). Rosenwasserʹs claims arise from events that occurred in May 2010 when Fordham banned Rosenwasser from its campus after a security guard complained that he had harassed her.1 On June 11, 2011, Rosenwasser commenced an action in state court against Fordham based on the May 2010 events.

The state court dismissed all but one of Rosenwasserʹs claims on Fordhamʹs motion to dismiss and dismissed the final claim on summary judgment on May 12, 2017. Two months after the state courtʹs May 2017 decision, Rosenwasser filed the current action below, alleging similar, if not identical, claims to those raised in the state court. By

1 The facts relied on for our review are drawn from Rosenwasserʹs federal court complaint filed July 10, 2017, as well as his state court complaint filed June 11, 2011, and the state courtʹs May 12, 2017 summary judgment decision, which are incorporated by reference into the federal court complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (ʺ[A] complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.ʺ (internal quotation marks omitted)).

‐ 2 ‐ order entered March 14, 2018, the district court granted Fordhamʹs motion to dismiss, holding that Rosenwasserʹs federal claims were untimely. We assume the parties= familiarity with the underlying facts, procedural history of the case, and issues on appeal.

We review de novo the dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), ʺconstruing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffʹs favor.ʺ Chambers, 282 F.3d at 152; see also City of Pontiac Gen. Emps.ʹ Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011) (reviewing district courtʹs interpretation and application of statute of limitations at pleadings stage de novo). The complaint must plead ʺenough facts to state a claim to relief that is plausible on its face,ʺ Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007), and to ʺallow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,ʺ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We construe pro se complaints liberally to raise the strongest claims they suggest, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam), but we ʺcannot read into pro se submissions claims that are not consistent with the pro se litigantʹs allegations, or arguments that the submissions themselves do not suggest,ʺ id. at 477 (internal quotation marks and citation omitted).

As an initial matter, Rosenwasser does not raise on appeal his primary argument in the district court that the three‐year statute of limitations on his federal

‐ 3 ‐ claims was tolled while he litigated in state court from June 2011 to May 2017.2 Therefore, we deem the argument abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92‐93 (2d Cir. 1995) (noting that, despite the special solicitude afforded to them, pro se appellants abandon issues not presented in their appellate briefs, especially when they raised them below and elected not to pursue them on appeal).

Instead, Rosenwasser argues that the statute of limitations was equitably tolled based on three additional grounds. These grounds, however, were neither alleged in his pleadings nor raised in the district court, and therefore they are waived and cannot be raised at this juncture for the first time. See Morse v. Univ. of Vt., 973 F.2d 122, 125 (2d Cir. 1992) (declining to address appellantʹs equitable tolling argument that was not raised in the district court); Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (ʺ[I]t is a well‐established general rule that an appellate court will not consider an issue raised for the first time on appeal.ʺ).

Even assuming Rosenwasser did not waive these arguments, we conclude that he failed to present ʺrare and exceptional circumstancesʺ warranting equitable tolling. Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (noting that we will apply equitable tolling where ʺextraordinary circumstances prevented a party from timely

2 Although Rosenwasser contends that his Title IX claims are not subject to a statute of limitations, it is well established that New Yorkʹs three‐year limitation period for personal injury actions is applicable to claims brought under Title IX and § 1983. See Curto v. Edmundson, 392 F.3d 502, 504 (2d Cir. 2004) (Title IX claims); Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009) (§ 1983 claims); see also N.Y. C.P.L.R. § 214(5).

‐ 4 ‐ performing a required act, and . . . the party acted with reasonable diligence throughout the period he sought to tollʺ (internal quotation marks and alterations omitted)). First, Rosenwasser argues that Fordham misled him as to the proper cause of action by labeling the security guardʹs complaint as ʺharassmentʺ ‐‐ instead of ʺsexual harassmentʺ ‐‐ to avoid triggering Title IX. This assertion is unavailing because, even if the allegations were mislabeled, Rosenwasser was aware of the facts underlying the security guardʹs complaint. Second, Rosenwasser contends that Fordham prevented him from exercising his rights by refusing to conduct a Title IX investigation. The fact that Rosenwasser did not ʺdiscover[] the existence of Title IXʺ until ʺafter years of legal research,ʺ Appellantʹs Reply Br. at 8, however, is of no moment because ignorance of the law is not sufficient to justify equitable tolling. See Ormiston v. Nelson, 117 F.3d 69, n.5 (2d Cir. 1997). Finally, Rosenwasserʹs claim that he timely filed his complaint but in the wrong forum is similarly meritless because New York state courts have concurrent jurisdiction with federal courts over Title IX and § 1983 claims and thus these claims could have been brought in his state court action. See Town of Orangetown v. Magee, 88 N.Y.2d 41 (1996) (adjudicating § 1983 claim in state court); In re Mularadelis v. Haldane Cent. Sch. Bd., 427 N.Y.S.2d 458 (2d Depʹt 1980) (adjudicating Title IX claim in state court). Therefore, Rossenwasserʹs reasons for delay do not support equitable tolling.

‐ 5 ‐ * * * We have considered Rosenwasserʹs remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

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

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