Davis v. de Blasio

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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TONI MARIE DAVIS, MEMORANDUM AND ORDER

Plaintiff, 21-CV-4853 (KAM) (LB)

-against-

MAYOR BILL DE BLASIO; CITY OF

NEW YORK,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Toni Marie Davis, a resident of Baltimore,

Maryland, brings this pro se action pursuant to 28 U.S.C. §

1331, alleging that her constitutional rights have been violated

by New York City’s COVID-19 mask mandate. (ECF No. 1, Complaint

(“Compl.”).) Plaintiff’s request to proceed in forma pauperis

(“IFP”) is granted. (ECF No. 2.) For the reasons set forth

below, plaintiff’s claim is dismissed for lack of standing.

BACKGROUND

Plaintiff’s complaint contains many statements

reflecting her strong disagreement with the New York City COVID-

19 mask mandate, but fails to allege specific facts

demonstrating how the mandate violates plaintiff’s

constitutional rights. (See generally Compl.) Specifically,

plaintiff asserts that New York City Mayor Bill de Blasio “has

exercised Nazi style Tyrannical rule over the city of New York

including all 5 boroughs.” (Id. at 3.) She asserts that Mayor

de Blasio “is using Covid as an excuse to infringe on the

liberties and sovereignty of the American people in an attempt

to ultimately take control.” (Id. at 5.) Plaintiff claims that

Mayor de Blasio’s actions will lead to forced vaccine mandates

which will lead to “civil war.” (Id. at 6.) Plaintiff

questions how President Biden can restrict travel for Americans

due to the COVID-19 pandemic but use taxpayers money to evacuate

“30,000 unvaccinated covid having Afghans into this country.”

(Id.) Plaintiff seeks fifteen billion dollars in punitive

damages “for the horrific acts against the freedoms of the

American people and the Will of God who said WHOM THE LORD SETS

FREE IS FREE INDEED.” (Id. at 11 (emphasis in original)).

STANDARD OF REVIEW

A complaint must plead “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). A claim is 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.” Matson v. Bd. of Educ., 631 F.3d 57,

63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). Although all allegations contained in the complaint

are assumed to be true, this tenet is “inapplicable to legal

conclusions.” Iqbal, 556 U.S. at 678. In reviewing a pro se

complaint, the court must be mindful that the plaintiff’s

pleadings should be held “to less stringent standards than

formal pleadings drafted by lawyers.” Erickson v. Pardus, 551

U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429

U.S. 97, 106 (1976)); see also Harris v. Mills, 572 F.3d 66, 72

(2d Cir. 2009) (noting that even after Twombly, courts “remain

obligated to construe a pro se complaint liberally”).

In addition to requiring sufficient factual matter to

state a plausible claim to relief, pursuant to Rule 8 of the

Federal Rules of Civil Procedure, plaintiff must provide a

short, plain statement of claim against each defendant named so

that they have adequate notice of the claims against them.

Iqbal, 556 U.S. 678 (Rule 8 “demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.”). A pleading

that only “tenders naked assertions devoid of further factual

enhancement” will not suffice. Id. (internal citations and

alterations omitted). To satisfy this standard, the complaint

must at a minimum “disclose sufficient information to permit the

defendant to have a fair understanding of what the plaintiff is

complaining about and to know whether there is a legal basis for

recovery.” Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir.

2000) (internal quotation marks omitted).

Under 28 U.S.C. § 1915(e)(2)(B), a district court

shall dismiss an in forma pauperis action where it is satisfied

that the action “(i) is frivolous or malicious; (ii) fails to

state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such

relief.” An action is “frivolous” when either: (1) “the

‘factual contentions are clearly baseless,’ such as when

allegations are the product of delusion or fantasy”; or (2) “the

claim is ‘based on an indisputably meritless legal theory.’”

Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d

Cir. 1998) (internal citation omitted).

DISCUSSION

To bring suit in a federal court, a plaintiff must

establish that she has standing to pursue her claims under

Article III of the United States Constitution. E.M. v. N.Y.C.

Dep’t of Educ., 758 F.3d 442, 449 (2d Cir. 2014). “‘The

irreducible constitutional minimum of standing’ derives from

Article III, Section 2 of the U.S. Constitution, which limits

federal judicial power to ‘cases’ and ‘controversies.’” Natural

Res. Def. Council, Inc. v. U.S. Food & Drug Admin., 710 F.3d 71,

79 (2d Cir. 2013) (quoting U.S. Const. art. III, § 2 and Lujan

v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “To establish

that a case or controversy exists so as to confer standing under

Article III, a plaintiff must satisfy three elements: (a) the

plaintiff must suffer an ‘injury in fact,’ (b) that injury must

be ‘fairly traceable’ to the challenged action, and (c) the

injury must be likely to be ‘redressed by a favorable decision’

of the federal court.” Id. (citations omitted); see also

Hollingsworth v. Perry, 570 U.S. 693, 704 (2013) (“[F]or a

federal court to have authority under the Constitution to settle

a dispute, the party before it must seek a remedy for a personal

and tangible harm.”). To have standing to bring a

constitutional claim, a plaintiff must show that she was

personally deprived of rights or privileges guaranteed by the

United States Constitution. See Collins v. W. Hartford Police

Dep’t, 324 F. App’x 137, 139 (2d Cir. 2009) (summary order);

Cunningham v. U.S., No. 18-cv-4492, 2020 WL 6799685, at *2

(E.D.N.Y. Nov. 19, 2020).

Here, plaintiff, a resident of Maryland, has failed to

allege facts to show how she is personally affected by the New

York City mask mandate. Furthermore, even if she had alleged

that she was personally deprived of her rights, her allegations

would not constitute an injury in fact that is concrete and

particularized to establish standing. Any alleged harm is

speculative and hypothetical as plaintiff has not alleged an

actual injury. Accordingly, because plaintiff fails to allege

any facts to show that she has personally suffered a

constitutional injury she lacks standing to bring this suit.

See e.g., Schiavo v. Carney, No. 20-cv-1384, 2021 WL 2936137, at

*3–4 (D. Del. July 13, 2021) (noting that there are no

allegations in the complaint of an injury personal to plaintiff

as a result of the mask mandate); Beaudoin v. Baker, No. 20-cv-

11187, 2021 WL 1162927, at *4 (D. Mass. Mar. 25, 2021) (finding

plaintiff has no standing to challenge mask mandate); Bechade v.

Baker, No. 20-cv-11122, 2020 WL 5665554, at *3 (D. Mass. Sept.

23, 2020) (plaintiff who did not show mask requirement caused

any concrete and particularized or actual or imminent harm did

not have standing).

CONCLUSION

Plaintiff’s complaint is dismissed without prejudice

for lack of subject matter jurisdiction due to Plaintiff’s lack

of standing. See Fed. R. Civ. P. 12(h)(3); 28 U.S.C. §

1915(e)(2)(B). The court certifies pursuant to 28 U.S.C. §

1915(a)(3) that any appeal from this order would not be taken in

good faith and therefore in forma pauperis status is denied for

purpose of an appeal. See Coppedge v. United States, 369 U.S.

438, 444-45 (1962). The Clerk of Court is respectfully directed

to enter judgment, close this case, send a copy of this Order

and the judgment to plaintiff, and note service on the docket.

SO ORDERED.

/s/

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

Dated: October 4, 2021

Brooklyn, New York