Trisvan v. Biden

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

------------------------------------x

JOHN TRISVAN,

Plaintiff, MEMORANDUM & ORDER

21-CV-5684(EK)(LB)

-against-

JOSEPH R. BIDEN, JR., et al.,

Defendants.

------------------------------------x

ERIC KOMITEE, United States District Judge:

Plaintiff John Trisvan filed this pro se action on

October 8, 2021 against President Joseph R. Biden, Jr.; former

Mayor Bill de Blasio;1 the United States Department of Labor

(DOL); the Occupational Safety and Health Administration (OSHA);

the Brooklyn Academy of Music; the New York Convention Center

Operating Corporation (commonly known as the “Javits Center”);

and the “United Postal Service,” which appears to be a reference

to the United Parcel Service (UPS).2 Compl., ECF No. 4.

1 Eric Adams became the Mayor of New York City on January 1, 2022.

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Eric Adams is

substituted for Mayor de Blasio. The Clerk of Court is respectfully directed

to update the caption accordingly.

2 The complaint lists the address for the “United Postal Service” as 55

Glenlake Parkway NE, Atlanta, Georgia 30328. Compl. 2. According to the

records of the Georgia Corporations Division, this address corresponds to

United Parcel Service, Inc. (the private company) rather than the United

States Postal Service. See Zhu v. Matsu Corp, No. 18-CV-0203, 2022 WL

972422, at *20 n.4 (D. Conn. Mar. 31, 2022) (taking judicial notice of the

registered address of a corporation “based on a Connecticut Business Records

Search”).

Trisvan’s claims are premised on vaccination

requirements imposed by the federal government and the City of

New York. His application to proceed in forma pauperis is

granted solely for the purpose of this order, but his Complaint

is dismissed without prejudice, as set forth below.

I. Background

Trisvan alleges that his religious beliefs prevent him

from receiving the COVID-19 vaccination. Compl. 4. His

Complaint sets out three categories of complaints that stem from

his unvaccinated status.

First, Trisvan claims that because of his unvaccinated

status, the Brooklyn Academy of Music refused to allow him to

attend a showing of The Lost Daughter. Compl. 3. Similarly, he

alleges that New York Convention Center Operating Corporation

refused to allow him to attend the “International Franchising

Expo” at the Javits Center. Id.

Second, Trisvan alleges that he sought employment from

UPS but was told he could not work for that entity unless and

until he obtained a COVID-19 vaccine. Compl. 4.

Third, Trisvan claims that President Biden unlawfully

issued, and DOL and OSHA unlawfully enforced, two executive

orders: Executive Order 14042, titled “Executive Order on

Enduring Adequate COVID Safety Protocols for Federal

Contractors”; and Executive Order 14043, “Executive Order on

Requiring Coronavirus Disease 2019 Vaccination for Federal

Employees.” Compl. 4–5. Similarly, he claims that Mayor De

Blasio unlawfully promulgated Emergency Executive Order 225,

which prohibits patrons from entering indoor business areas

without proof of vaccination status. Compl. 1.

As grounds for relief, Trisvan cites 42 U.S.C. §§ 1983

and 1985; the First, Fourth, Eighth, Tenth, and Fourteenth

Amendments to the U.S. Constitution; Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; and the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12112–12117.

He seeks compensatory and injunctive relief.

II. Standards of Review

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

an in forma pauperis action if 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.” Additionally, if the Court

“determines at any time that it lacks subject-matter

jurisdiction, the Court must dismiss the action.” Fed. R. Civ.

P. 12(h)(3); see also Cortlandt St. Recovery Corp. v. Hellas

Telecomms., S.À.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015)

(district court should dismiss an action for lack of subject

matter jurisdiction pursuant to Rule 12(b)(1) when it “lacks the

statutory or constitutional power to adjudicate it”).3

III. Discussion

Trisvan has failed to state a claim for any asserted

cause of action. I discuss each in turn.

A. Title VII and ADA Claims

Trisvan claims that UPS violated the ADA and Title VII

in refusing to hire him. Compl. 4.4 But he has failed to allege

that he has exhausted his administrative remedies, as required

to sustain an action under either statute. See McPartlan-Hurson

v. Westchester Cmty. Coll., 804 F. App’x 41, 43 (2d Cir. 2020)

(“Pursuant to Title VII and the ADA, a plaintiff must exhaust

her administrative remedies by filing a charge with the EEOC

within 300 days of a discriminatory act.”). Thus, those claims

are dismissed under Section 1915(e)(2)(B)(ii). Matos v. Hove,

940 F. Supp. 67, 71 (S.D.N.Y. 1996) (a plaintiff’s “Title VII

claims must be dismissed [if] she has failed to exhaust her

administrative remedies”); Shrira v. State Univ. of N.Y. at

3 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

4 I construe this claim to be asserted against UPS only because the

complaint does not contain a “short and plain statement” asserting grounds

for relief against any other defendant under Title VII or the ADA. See Fed.

R. Civ. P. 8(a). In dismissing this claim for failure to exhaust

administrative remedies, I express no view (at this time) on whether

Trisvan’s ADA or Title VII allegations are sufficient to state a claim on

which relief could be granted.

Buffalo, No. 02-CV-323A, 2004 WL 1083241, at *2 (W.D.N.Y. Feb.

10, 2004) (same, for ADA claims).

B. Section 1985 Claims

Trisvan has likewise failed to state a claim under 42

U.S.C. § 1985. “[T]o make out a violation of § 1985(3) . . . ,

the plaintiff must allege and prove four elements: (1) a

conspiracy; (2) for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities

under the laws; and (3) an act in furtherance of the conspiracy;

(4) whereby a person is either injured in his person or property

or deprived of any right or privilege of a citizen of the United

States.” United Brotherhood of Carpenters & Joiners of Am.,

Loc. 610, AFL-CIO v. Scott, 103 S. Ct. 3352, 3356 (1983).

A ”conspiracy” requires, for purposes of Section 1985,

“a plurality of actors committed to a common goal.” Frooks v.

Town of Cortlandt, 997 F. Supp. 438, 456 (S.D.N.Y. 1998), aff’d,

182 F.3d 899 (2d Cir. 1999). The Court is unable, even with a

liberal eye and broad construction, to identify any factual

allegations supporting the existence of a conspiracy. This

claim therefore is dismissed. See Geldzahler v. New York Med.

Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (“[D]ismissal

under Rule 12(b)(6) is proper if the complaint lacks an

allegation regarding an element necessary to obtain relief,” and

“the duty to liberally construe a plaintiff’s complaint is not

the equivalent of a duty to re-write it.”).

C. Section 1983 Claims

The complaint also falls short of alleging facts

sufficient to support an entitlement to relief under 42 U.S.C.

§ 1983.

1. Private Defendants

Generally speaking, Section 1983 applies only to the

conduct of state actors, not private entities. See Chin v.

Bowen, 833 F.2d 21, 23 (2d Cir. 1987). As UPS and the Brooklyn

Academy of Music are private entities, this cause of action is

dismissed as against them.

2. Federal Defendants

President Biden is a federal government official;

thus, claims against him “would not arise under § 1983, which

applies to state government officials.” Young v. Trump, No. 20-

CV-1546, 2020 WL 1331942, at *2 (S.D.N.Y. Mar. 20, 2020) (citing

Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017)). And “Section

1983 does not provide plaintiff with a right of action to sue a

federal agency” such as DOL or OSHA. In re Zyprexa Prod. Liab.

Litig., No. 04-MDL-1596, 2007 WL 2332544, at *1 (E.D.N.Y. Aug.

15, 2007). Thus, the Section 1983 claims against those

defendants are dismissed.5

3. Mayor of New York

Trisvan’s Section 1983 claim against the Mayor of New

York City is dismissed as moot, to the extent he is seeking

injunctive relief.6 The basis of Trisvan’s claim against the

Mayor is Emergency Executive Order 225. Compl. 4. Order 225

required indoor entertainment, recreation, dining, and fitness

facilities to deny entry to patrons and employees unless the

individual displayed proof of Covid-19 vaccination. See Office

of the Mayor, City of New York, Emergency Executive Order 225,

Key to NYC: Requiring COVID-19 Vaccination for Indoor

Entertainment, Recreation, Dining and Fitness Settings (Aug. 16,

2021), https://www1.nyc.gov/office-of-the-mayor/news/225-

001/emergency-executive-order-225.

5 Even if construed as alleging claims under Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), Trisvan still

has not adequately stated a claim, because neither the President of the

United States nor federal agencies may be sued under Bivens. See Nixon v.

Fitzgerald, 457 U.S. 731, 749 n.27 (“[T]he President is absolutely immune

from civil damages liability for his official acts in the absence of explicit

affirmative action by Congress.”); FDIC v. Meyer, 510 U.S. 471, 485–86 (1994)

(refusing to extend Bivens to “agencies of the Federal Government”).

6 Trisvan does not allege that he is entitled to monetary damages from

New York City as a result of Emergency Executive Order 225, at least not in a

manner that satisfies the pleading requirements of the Federal Rules of Civil

Procedure. See Compl. 4; see also Fed. R. Civ. P. 8(a)(2) (a complaint must

contain “a short and plain statement of the claim showing that the pleader is

entitled to relief”).

However, on February 27, 2022, Mayor Eric Adams lifted

that order effective March 7, 2022. See Office of the Mayor,

City of New York, Mayor Adams’ Statement on Mask Mandates in

Schools, Vaccine Mandates Across NYC (Feb. 27, 2022),

https://www1.nyc.gov/office-of-the-mayor/news/096-22/mayor-

adams-on-mask-mandates-schools-vaccine-mandates-across-N.Y.C.

The Court may take judicial notice of that municipal act. Cf.

Polo v. City of New York, No. 12-CV-3742, 2013 WL 5241671, at *1

(E.D.N.Y. Sept. 17, 2013) (taking judicial notice of a municipal

law).

Federal courts “lack jurisdiction to review an appeal

that is moot.” Reale v. Lamont, No. 20-3707-CV, 2022 WL 175489,

at *1 (2d Cir. Jan. 20, 2022). “A case is moot when the issues

presented are no longer live or the parties lack a legally

cognizable interest in the outcome.” Tann v. Bennett, 807 F.3d

51, 52 (2d Cir. 2015). Because Order 225 has been rescinded,

any claim for equitable relief on this basis is now moot. See,

e.g., Chrysafis v. Marks, 15 F.4th 208, 213 (2d Cir. 2021)

(“Constitutional challenges to statutes are routinely found moot

when a statute is amended.”); Lamar Advert. of Penn, LLC v. Town

of Orchard Park, New York, 356 F.3d 365, 377 (2d Cir. 2004)

(“[W]e are hesitant to hold that a significant amendment or

repeal of a challenged provision that obviates the plaintiff’s

claims does not moot a litigation, absent evidence that the

defendant intends to reinstate the challenged statute after the

litigation is dismissed, or that the municipality itself does

not believe that the amendment renders the case moot.”).

To the extent Trisvan is seeking monetary damages on

this claim, rather than injunctive relief, the claim is

dismissed for failure to state a claim. The Federal Rules of

Civil Procedure require that a complaint contain “a short and

plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). Read liberally,

Trisvan’s Complaint alleges that he was subject to religious

discrimination. But it says little to nothing about how.

Trisvan “fails to mention his religious beliefs and fails to

state how [the defendant] failed to accommodate his alleged

religious beliefs,” which runs afoul of Rule 8(a) and therefore

“fails to state a claim of religious discrimination.” Smith v.

Frichtl Steel & Welding, No. 04-CV-4239, 2005 WL 1267203, at *1

n.1 (S.D. Ill. Apr. 29, 2005).

4. New York Convention Center Operating Corporation

(Javits Center)

That leaves Trisvan’s claim against the New York

Convention Center Operating Corporation, a New York State

Legislature–created “public benefit corporation” that operates

the Javits Center in Manhattan. See Aguilar v. N.Y. Convention

Ctr. Operating Corp., 174 F. Supp. 2d 49, 50 (S.D.N.Y. 2001).

But given that the Corporation is the only remaining defendant

at this point, Trisvan’s claims against it are not properly

filed here.

Pursuant to 28 U.S.C. § 1391, venue is proper only in

“(1) a judicial district where any defendant resides, if all

defendants reside in the same State, (2) a judicial district in

which a substantial part of the events or omissions giving rise

to the claim occurred . . . or (3) a judicial district in which

any defendant may be found, if there is no district in which the

action may otherwise be brought.” 28 U.S.C. § 1391(b). A

defendant corporation generally resides “in any judicial

district in which such defendant is subject to the court’s

personal jurisdiction with respect to the civil action in

question.” Id. § 1391(c)(2). A corporation resident (and

subject to personal jurisdiction) in a state with more than one

judicial district is “deemed to reside in any district in that

State within which its contacts would be sufficient to subject

it to personal jurisdiction if that district were a separate

State.” Id. § 1391(d).

The Court takes judicial notice of the fact that the

Javits Center is located in New York County. See Aguilar, 174

F. Supp. 2d at 50; Compl. 2–3. His claims thus arose in

Manhattan, in the Southern District of New York. See Compl. 3–4

(“Plaintiff attempted to attend the International Franchising

Expo . . . held by Defendant New York Convention Center

Operating Corp., at the Javits Center, located at 429 11th

Avenue, New York, NY 10001 . . . .”). Trisvan also alleges no

facts indicating that the Corporation would be subject to

personal jurisdiction in this District if it were a separate

state. Accordingly, Trisvan’s Section 1983 claim against the

Corporation should have been brought in the United States

District Court for the Southern District of New York, which

encompasses New York County. See 28 U.S.C. § 112(b).7 The Court

therefore dismisses this claim. See 28 U.S.C. § 1406(a) (“The

district court of a district in which is filed a case laying

venue in the wrong . . . district shall dismiss, or if it be in

the interest of justice, transfer such case to any

district . . . in which it could have been brought.”).

IV. Conclusion

For these reasons, Trisvan’s Section 1983 claim

against the New York Convention Center Operating Corporation is

dismissed for failure to file in the correct district, and his

remaining claims are dismissed for failure to state a claim.

The Clerk of Court is directed to enter judgment and to close

this case.

7 The undersigned previously was a member of the Board of Directors of

the Corporation, but that affiliation ended in 2017 — long before the events

recounted in Trisvan’s Compolaint, which took place in 2021.

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 also respectfully directed to

mail a copy of this order to Trisvan and note the mailing on the

docket.

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: July 30, 2022

Brooklyn, New York