Timothy M. COHANE, Plaintiff-Appellant, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Tom Hosty, Stephanie Hannah, Jack Friedenthal, William R. Greiner, Dennis Black, Robert Arkeilpane, William Maher, Eric Eisenberg, Mid American Conference, and Robert Fournier, Defendants-Appellees.
No. 14-1411-cv
United States Court of Appeals, Second Circuit
May 15, 2015
For the reasons set forth above, and because we have considered all of Torres‘s remaining arguments and find them to be without merit, we VACATE the order of the district court to the extent it dismissed Torres‘s claim against the United States, and REMAND the case for entry of a judgment dismissing that claim with prejudice for failure to state a claim upon which relief may be granted.
*William Odle, Shook, Hardy, & Bacon, LLP, Kansas City, MO (Lawrence J. Vilardo, Connors & Vilardo, L.L.P., Buffalo, NY, on the brief), for Defendants-Appellees, National Collegiate Athletic Association, Hosty, Hannah, and Friedenthal.
Jeffrey W. Lang, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Andrea Oser, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, NY, for Defendants-Appellees, Greiner, Black, Arkeilpane, Maher, and Eisenberg.
R. Todd Hunt (Aimee W. Lane, on the brief), Walter Haverfield LLP, Cleveland, OH, for Defendants-Appellees, Mid American Conference and Fournier.
PRESENT: CHESTER J. STRAUB, B.D. PARKER, and SUSAN L. CARNEY, Circuit Judges.
SUMMARY ORDER
Plaintiff Timothy M. Cohane appeals the District Court‘s grant of summary judgment to defendants—the National Collegiate Athletic Association (“NCAA“), the Mid American Conference (“MAC“), and certain NCAA and MAC employees and/or affiliates, as well as certain employees of Cohane‘s former employer, the State Uni-
All claims stemmed from defendants’ investigations into alleged violations by Cohane of NCAA and/or MAC rules. Cohane resigned from SUNY Buffalo during the course of the investigations and eventually was issued a “show-cause” order by the NCAA‘s Committee on Infractions. The order stipulated that if Cohane sought “employment or affiliation in an athletically related position at an NCAA member institution” during a certain defined period of time, he and the institution would be “requested to appear before the ... Committee on Infractions to consider whether the member institution should be subject to certain [NCAA] show-cause procedures ..., which could limit the coach‘s athletically related duties at the new institution for a designated period.” Ex. N to Decl. of David J. State at 19-20, Cohane v. Greiner, No. 04-cv-943 (W.D.N.Y. Feb. 28, 2011), ECF No. 186-15. The show-cause order was stayed pending the outcome of Cohane‘s appeal to the NCAA Appeals Committee. The Appeals Committee modified the order to terminate on the date of the Appeals Committee‘s decision, with the result that the order was stayed for the duration of its term.
On defendants’ motions for summary judgment, the District Court, accepting in substantial part the magistrate judge‘s Report and Recommendation, granted judgment in defendants’ favor. Cohane timely appealed. We assume the parties’ familiarity with the underlying facts and the procedural history of the case, to which we refer only as necessary to explain our decision.
We review a district court‘s grant of summary judgment de novo. Segal v. City of New York, 459 F.3d 207, 211 (2d Cir. 2006). Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
While “[a] person‘s interest in his or her good reputation alone, apart from a more tangible interest, is not a liberty or property interest sufficient to invoke the procedural protections of the Due Process Clause or create a cause of action under
Cohane argues that notwithstanding the fact that the show-cause order imposed by the NCAA Committee on Infractions was stayed for the duration of its term, the order created a material burden constituting a “plus” by impairing his prospects of receiving another head coaching position. Cohane argues that the inclusion of his name and violations in the NCAA‘s permanent personnel records created the requisite material burden as well, also because of its expected effects on his job prospects. But we have explained that “deleterious effects flowing directly from a sullied reputation, standing alone, do not constitute a ‘plus’ under the ‘stigma plus’ doctrine.” Sadalhah v. City of Utica, 333 F.3d 34, 38 (2d Cir. 2003) (alterations and other internal quotation marks omitted). When, as here, the loss of job prospects is merely a “normal repercussion[] of a poor reputation,” it cannot be the basis for a stigma-plus claim. Valmonte v. Bane, 18 F.3d 992, 1001 (2d Cir. 1994).
Further, Cohane has not presented evidence that these purported material burdens were “state-imposed.” See Vega, 596 F.3d at 81. To show that a private entity acted as a state actor through joint activity with the state, a plaintiff must show that the private entity and the state “share[d] some common goal to violate the plaintiff‘s rights,” Betts v. Shearman, 751 F.3d 78, 85 (2d Cir. 2014), and that “the state was involved with the activity that caused the injury giving rise to the action,” Sybalaki v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257-58 (2d Cir. 2008) (per curiam) (emphasis and internal quotation marks omitted). Cohane has failed to raise a genuine dispute as to whether the NCAA, a private entity, and SUNY Buffalo, a state actor, shared a common goal to violate his rights, let alone that they shared such a goal with respect to the decision to impose the show-cause order or to place a record of Cohane‘s infractions in the NCAA‘s personnel files. Because there was no evidence of a material state-imposed burden or state-imposed alteration of Cohane‘s status or rights, the District Court properly granted summary judgment in defendants’ favor on Cohane‘s due process claims.
Finally, the only tortious interference claims at issue on this appeal are those against the MAC Defendants. See Cohane v. Nat‘l Collegiate Athletic Ass‘n, 215 Fed.Appx. 13, 15 (2d Cir. 2007) (summary order) (affirming the dismissal of Cohane‘s tortious interference claims against the NCAA Defendants). Under New York law, “[t]ortious interference with contract requires the existence of a valid contract between the plaintiff and a third party, defendant‘s knowledge of that contract, defendant‘s intentional procurement of the third party‘s breach of the contract without justification, actual breach of the contract, and damages resulting therefrom.” Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370 (1996) (citations omitted). Cohane now abandons his argument of tortious interference with his employment contract and focuses instead on the contract he entered into with SUNY Buffalo in effecting his resignation. But Cohane fails to raise a genuine dispute
We have considered Cohane‘s remaining arguments and find them to be without merit. We AFFIRM the judgment of the District Court.
PRESENT: GUIDO CALABRESI, REENA RAGGI and RICHARD C. WESLEY, Circuit Judges.
Brian ANDERSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 13-934-pr
United States Court of Appeals, Second Circuit
Sept. 9, 2015
Jennifer Gachiri (Margaret Garnett, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, NY, for Appellee.
PRESENT: GUIDO CALABRESI, REENA RAGGI and RICHARD C. WESLEY, Circuit Judges.
SUMMARY ORDER
Brian Anderson, who stands convicted after a guilty plea of wire fraud and conspiracy to commit wire fraud, see