Komatsu v. The City of New York

USDC SDNY

UNITED STATES DISTRICT COURT DOCUMENT

SOUTHERN DISTRICT OF NEW YORK 2} | aL

------------------------------------------------------------ X DATE FILED: 9/30/2019

TOWAKI KOMATSU, :

Plaintiff, : 18 Civ. 3698 (LGS)

-against- : OPINION AND ORDER

THE CITY OF NEW YORK, et al. :

Defendants. :

□□ OX

LORNA G. SCHOFIELD, District Judge:

Pro se Plaintiff Towaki Komatsu brings this action against the City of New York (the

“City”), the New York City Police Department (“NYPD”)! and numerous officials in their

individual and official capacities. The individual Defendants are members of the NYPD and

Mayor’s Community Affairs Unit, and Court Officers of the New York State courts.

The Second Amended Complaint alleges violations of the U.S. Constitution pursuant to

42 U.S.C. § 1983 and of state law. Plaintiff requests: (1) compensation for the violation of his

constitutional rights and for his pain, suffering and mental anguish, (2) punitive damages, (3) the

voiding of the 2017 Mayoral election and the New York City Council election, (4) attorneys’

fees and costs and (5) any further relief deemed just and proper.

The Defendants filed motions to dismiss for failure to state a claim pursuant to Federal

Rule of Civil Procedure 12(b)(6) and lack of jurisdiction based on Rule 12(b)(1). For the

following reasons, the motions are granted in part and denied in part. A claim for relief is

' As a municipal agency, the NYPD is generally prohibited from being sued. See Golian v. New

York City Admin. for Children Servs, 282 F. Supp. 3d 718, 725 (S.D.N.Y. 2017); Ximines v.

George Winggate High Sch., 516 F.3d 156, 160 (2d Cir. 2008) (per curiam) (“New York City

departments, as distinct from the City itself, lack the capacity to be sued.”). Instead, the City is

generally the proper Defendant. See id.

sufficiently stated as to the claims that Plaintiff’s First Amendment and Equal Protection rights

were violated outside a City-organized Town Hall on April 27, 2017, and that the City has

adopted an unconstitutional practice and policy to exclude Plaintiff from public events that the

New York City Mayor attends.

I. BACKGROUND

The following facts are taken from the Second Amended Complaint, documents

incorporated by reference in it, and other documents Plaintiff has filed (collectively, the

“Complaint”).2 While these additional documents would not be considered on a motion to

dismiss if Plaintiff were represented by counsel, they are considered here because he is pro se.

See Coke v. Med., Dep’t of Corr. & Cmty. Supervision, No. 17 Civ. 0866, 2018 WL 2041388, at

*1 n.2 (S.D.N.Y. Apr. 30, 2018) (“[W]hen a pro se plaintiff’s opposition memorand[um] raises

new allegations that are ‘consistent with the allegations’ in the Complaint, these allegations may

be read as ‘supplements to th[e] pleadings.’”) (some alteration in original).3 As required on a

motion to dismiss, these facts are accepted as true and construed in the light most favorable to

Plaintiff. Raymond Loubier Irrevocable Tr. v. Loubier, 858 F.3d 719, 725 (2d Cir. 2017).

2 The Complaint for the purpose of this motion includes the Second Amended Complaint (1:18-

cv-3698, ECF Dkt. (“Dkt. No.”) 45); Plaintiff’s pre-motion letter (Dkt. No. 66); Affidavit if

Towaki Komatsu, sworn to May 2, 2019 (Dkt 176); Affidavit of Towaki Komatsu, sworn to May

2, 2019 (Dkt. No. 177); and four letters from Plaintiff to the Court (Dkt. Nos. 124, 195, 210,

221).

3 The Court’s Individual Rules limit the parties to twenty-five pages for memoranda of law in

support of and in opposition to dispositive motions. Plaintiff’s filings total well over a hundred

pages. In addition, Plaintiff has made numerous voluminous and irrelevant filings, many of

which exceed a hundred pages in length. See, e.g., Dkt. No. 108. Plaintiff was directed to file

only materials to aid in the disposition of the Second Amended Complaint. See Dkt. No. 118.

Only the additional filings relevant to this motion are considered -- not, for example, docket

entries 154, 202 and 211.

A. The Parties

Plaintiff is a New York resident and Navy veteran. The “Town Hall Defendants” are

Inspector Howard Redmond, Officer Rafael Beato, Officer Yu Liu, Lieutenant Ralph Nieves,

Detective Raymond Gerola, all with the NYPD; as well as two members of the New York City

Mayor’s Community Affairs Unit, Pinny Ringel and Harold Miller. The “Resource Fair

Defendants” are Defendants Nieves and Gerola; another member of the Community Affairs Unit,

Rachel Atcheson; NYPD Detective Andrew Berkowitz and Bronx Court Officers Captain

Anthony Manzi, Sergeant Matthew Brunner and Sergeant Ramon Dominguez.4

B. The Town Hall Incident

On April 27, 2017, Plaintiff sought to attend a public “Town Hall” event where New

York City Mayor Bill de Blasio was scheduled to speak. The Town Hall was taking place at a

public high school in Long Island City, New York. Plaintiff had reserved a spot at the event and

arrived early to wait in line. While in line, Plaintiff was given a ticket to enter the building.

The line started moving, but Defendants Miller and Ringel prohibited Plaintiff from

entering the building. Plaintiff rejoined the line, and Miller again prohibited his entry. Plaintiff

objected to this treatment to unidentified members of the NYPD, but they did not intervene on

his behalf.

4 The claims against the Bronx Court Officers -- Defendants Manzi, Brunner and Dominguez --

in their official capacities are dismissed. The Eleventh Amendment bars suit against them under

the doctrine of sovereign immunity. See U.S. Const. amend. XI; Gollomp v. Spitzer, 568 F.3d

355, 365 (2d Cir. 2009). Their employer, the State of New York, has not waived, and Congress

has not abrogated, sovereign immunity to allow for § 1983 claims in federal court. See Estate of

M.D. by DeCosmo v. New York, 241 F. Supp. 3d 413, 421-22 (S.D.N.Y. 2017). The claims

against them in their individual capacities are not dismissed for lack of jurisdiction.

Defendant Redmond approached Plaintiff while he was waiting outside and made

physical contact with Plaintiff’s body, which Plaintiff “immediately considered to be offensive.”

Redmond told Plaintiff that he was prohibited from entering the event because Plaintiff had

previously harassed New York City Human Resources Commissioner Steven Banks. Plaintiff

had criticized Commissioner Banks at a public event about six weeks prior to the Town Hall.

Others who were standing in line to attend the Town Hall were allowed to enter the building.

After speaking with Redmond, Plaintiff retrieved from his backpack papers that were critical of

New York City officials, and he spoke with other members of the public about being barred from

entering the event.

Plaintiff next stood on the sidewalk roughly forty-five feet from the entry to the school.

Defendant Beato shoved Plaintiff three times while he stood there. Beato’s colleagues,

Defendants Liu, Nieves and Gerola, witnessed this and did not intervene. These four Defendants

then stood in front of Plaintiff so that he could not see and call out to the Mayor as he left the

event.

C. The Resource Fair Incident

On May 23, 2017, Plaintiff sought to attend a public “Resource Fair” at a courthouse in

the Bronx, New York, where Mayor de Blasio and other City officials were scheduled to attend.

The purpose of the event was to “[m]eet with top city commissioners and senior staff during

scheduled office hours to address your questions and concerns.”5 Plaintiff had reserved a spot at

the event. The online registration form asked what questions Plaintiff planned to bring to the

resource fair, and his response was “Proof NYC agencies haven’t been doing their jobs.”

5 The Complaint refers to the webpage for the New York City Resource Fairs. See 1:18-cv-3698

ECF Dkt 124 at 2 (reference to the event web page). The quote comes from the web page.

Plaintiff also attended the event to engage in whistleblowing activity and to seek assistance in

obtaining employment and legal assistance from New York City government agencies. Plaintiff

was permitted to enter the courthouse.

Defendants Atcheson, Manzi and Brunner prohibited Plaintiff from entering the room

where the event was taking place and directed him to move away from the entrance. The other

Resource Fair Defendants saw or were aware of these actions and did not intervene. At the same

time, other members of the public were allowed to enter the event.

Defendants Nieves, Gerola and Berkowitz were present at this time in the courthouse and

communicating with one another. While waiting outside the entrance, Nieves observed Plaintiff

speak with a reporter about having filed suit against a City agency and his objections to being

kept out of the Resource Fair. At around the same time, Dominguez told Plaintiff that there was

an intention to keep “undesirable” people out of the event. Defendant Manzi briefly seized

Plaintiff’s bag in the presence of Brunner and Dominguez, but Plaintiff took the bag from Manzi

moments later. Manzi swore at Plaintiff when he retrieved his bag.6

II. STANDARD

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the pleaded factual

content allows the court to draw the reasonable inference that the defendant is liable for the

6 The Complaint also describes an incident on December 26, 2017. Plaintiff states that he raises

these allegations so that “equitable tolling [will] be applied to my claims in this action.” As

Defendants do not contend that Plaintiff’s claims are time barred, the tolling issue and December

26 incident are not addressed.

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). It is not enough for a plaintiff to

allege facts that are consistent with liability; the complaint must “nudge[]” claims “across the

line from conceivable to plausible.” Twombly, 550 U.S. at 570. “To survive dismissal, the

plaintiff must provide the grounds upon which his claim rests through factual allegations

sufficient ‘to raise a right to relief above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar

Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 545). On a Rule

12(b)(6) motion, “all factual allegations in the complaint are accepted as true and all inferences

are drawn in the plaintiff's favor.” Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 59 (2d

Cir. 2016) (internal quotation marks omitted).

Courts must “liberally construe pleadings and briefs submitted by pro se litigants, reading

such submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the

Blind, 864 F.3d 154, 156 (2d Cir. 2017) (internal quotation marks omitted). “We afford a pro se

litigant ‘special solicitude’ by interpreting a complaint filed pro se to raise the strongest claims

that it suggests.” Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 489 (2d Cir. 2018)

(internal quotation marks omitted).

III. DISCUSSION

The Complaint asserts claims against the individual Defendants under 42 U.S.C. § 1983.

In order to succeed on a claim under § 1983, “a plaintiff must allege that (1) the defendant was a

state actor, i.e., acting under color of state law, when he committed the violation and (2) the

defendant deprived the plaintiff of rights, privileges or immunities secured by the Constitution or

laws of the United States.” Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015) (citations

omitted). A defendant can be liable under § 1983 “only if that individual is personally involved

in the alleged deprivation.” Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015);

accord Brandon v Kinter, --- F.3d ---, 2019 WL 4263361, at *10 (2d Cir. Sept. 10, 2019)

(internal quotation marks omitted) (“It is well settled in this Circuit that personal involvement of

defendants in alleged constitutional deprivations is a prerequisite to an award of damages under §

1983.”). Only the second element is disputed here, whether Defendants deprived Plaintiff of his

constitutional rights under the First, Fourth and Fourteenth Amendments.

A. The First Amendment Claim (Count One)

1. The Town Hall and the Individual Defendants

The Complaint states a First Amendment claim as to the Town Hall Incident against

Defendants Redmond, Beato, Liu, Nieves and Gerola, but not Ringel and Miller. The First

Amendment, which “guarantees freedom of speech . . . extends not only to the right to speak, but

also to the right to listen and receive information.” Kass v City of New York, 864 F.3d 200, 207

(2d Cir 2017).

“[T]he level of judicial scrutiny that must be applied to state actions inhibiting speech

varies with the nature of the forum in which the speech occurs.” Johnson v. Perry, 859 F.3d 156,

171 (2d Cir. 2017) (citing Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 625

(2d Cir. 2005)). “Traditional public forums include areas such as streets and parks which have

immemorially been held in trust for the use of the public . . . [T]he state may not enact content-

based restrictions [in traditional public forums] unless they are necessary to serve a compelling

state interest.” Id. at 172 (quoting Peck, 426 F.3d at 625-26) (internal quotations omitted). “A

limited public forum is created when the State opens a non-public forum but limits the

expressive activity to certain kinds of speakers or to the discussion of certain topics.” Id.

(quoting Peck, 426 F.3d at 626) (internal quotations omitted). For a limited public forum,

“regulations governing the content of speech are allowed, so long as they are reasonable and

viewpoint-neutral.” Id. (quoting Peck, 426 F.3d at 626). These content regulations are

“permissible if [they] preserve[] the purposes of that limited forum.” Bronx Household of Faith

v. Board of Educ. of City of New York, 650 F.3d 30, 36 (2d Cir. 2011) (citing Rosenberger v.

Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 830 (1995)). A reasonable restriction may

prohibit disruptive behavior, as the Government has “a significant interest in conducting its

meeting[s] in an orderly and effective fashion.” Madden v. Town of Hempstead, No. 16 Civ.

6835, 2019 WL 1439935, at *15 (E.D.N.Y. Mar. 29, 2019).

The Government also may not retaliate against a private citizen for engaging in First

Amendment activity. See Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir. 2010). “‘To plead a First

Amendment retaliation claim a plaintiff must show [that]: (1) he has a right protected by the First

Amendment; (2) the defendant’s actions were motivated or substantially caused by plaintiff’s

exercise of that right; and (3) the defendant’s actions caused him some injury.’” Smith v.

Campbell, 782 F.3d 93, 100 (2d Cir. 2015) (citing Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160

(2d Cir. 2013)) (internal alteration omitted).

The Complaint pleads a sufficient First Amendment Claim against Defendant Redmond

for barring Plaintiff from the Town Hall. The Town Hall was a limited public forum. The

Government opened this forum to public expression for the limited purpose of allowing

attendees to hear the Mayor speak and, potentially, ask the Mayor questions. See, e.g., Santucci

v. Levine, No. 17 Civ. 10204, 2019 WL 3742286, at *10 (S.D.N.Y. Aug. 8, 2019) (citing Malta

v. Slagle, No. 5 Civ. 342S, 2007 WL 952045, at *3 (W.D.N.Y. Mar. 29, 2007); see also Smith v.

City of Middletown, No. 3:09 Civ. 1431, 2011 WL 3859738, at *4 (D. Conn. Sept. 1, 2011)

(“Numerous courts have held that city council meetings which have been opened to the public

are limited public fora.”). Accordingly, regulations on speech at the Town Hall had to be

reasonable and viewpoint-neutral, and content-restrictions were permitted to the extent that they

“preserve[d] the purposes of that limited forum.” See Bronx Household of Faith, 650 F.3d at 36.

The Complaint alleges that Defendant Redmond barred Plaintiff from the Town Hall because he

had criticized Commissioner Banks’ policies. This restriction was not view-point neutral and

was unreasonable and retaliatory, and therefore pleads a sufficient First Amendment Claim.

The Complaint also pleads a First Amendment claim against Defendants Beato, Liu,

Nieves and Gerola, plausibly alleging that they blocked Plaintiff’s line of sight because they

witnessed Plaintiff retrieve from his backpack material critical of City officials and did not want

him communicating his criticisms to the Mayor. The sidewalk where Plaintiff was standing was

a traditional public forum where content-based restrictions on speech are impermissible unless

they are necessary to serve a compelling state interest. See Johnson v. Perry, 859 F.3d at 171-72.

Liberally construing the Complaint, this restriction did not serve a compelling state interest, was

not viewpoint-neutral and is retaliatory.

Drawing all inferences in Plaintiff’s favor, the Complaint alleges no facts to suggest that

Plaintiff intended to be disruptive at the event or was disruptive prior to the event. The

restrictions placed on Plaintiff at the Town Hall therefore were unreasonable and did not serve a

compelling state interest. With the benefit of discovery, a basis for some restrictions on

Plaintiff’s access may be shown, but at this stage of the litigation, the First Amendment claim as

to the Town Hall against Defendants Redmond, Defendants Beato, Liu, Nieves and Gerola is

sufficient.

2. Qualified Immunity and the Town Hall Defendants

Qualified immunity does not bar Plaintiff’s claim for money damages against Defendants

Redmond, Beato, Liu, Nieves and Gerola regarding their conduct at the Town Hall event.

Qualified immunity should be resolved “‘at the earliest possible stage in litigation.’” Lynch v.

Ackley, 811 F.3d 569, 576 (2d Cir. 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231-32

(2009)). When a defendant presents an immunity defense on a motion to dismiss instead of a

motion for summary judgment, a “more stringent standard” applies. Edrei v. Maguire, 892 F.3d

525, 532 (2d Cir. 2018) (citing McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004)). At this

stage of the litigation, the court accepts “the complaint’s factual allegations as true and draw[s]

all reasonable inferences in the plaintiffs’ favor, including both those that support the claim and

those that defeat the immunity defense.” Id. (internal quotation marks omitted).

“Qualified immunity shields government officials from civil damages liability unless the

official violated a statutory or constitutional right that was clearly established at the time of the

challenged conduct.” Brown v. City of New York, 862 F.3d 182, 190 (2d Cir. 2017). “A

defendant is entitled to qualified immunity if (1) [the defendant’s] conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known, or (2) it was objectively reasonable for [the defendant] to believe that his actions were

lawful at the time of the challenged act.” Kinter, 2019 WL 4263361, at *12 (internal quotation

marks omitted). “To determine whether the relevant law was clearly established, [courts]

consider the specificity with which a right is defined, the existence of Supreme Court or Court of

Appeals case law on the subject, and the understanding of a reasonable officer in light of

preexisting law.” Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014).

Plaintiff has a clearly established right not to be barred from a limited public forum

because he previously exercised his First Amendment rights by criticizing a public official. See

New York Times Co. v. Sullivan, 376 U.S.254, at 269 (1964) (“The maintenance of the

opportunity for free political discussion to the end that government may be responsive to the will

of the people and that changes may be obtained by lawful means, an opportunity essential to the

security of the Republic, is a fundamental principle of our constitutional system. It is a prized

American privilege to speak one’s mind, although not always with perfect good taste, on all

public institutions.”) (internal quotations omitted). He also has a clearly established right not to

be barred from communicating with a public official because he had intended to communicate

negative views. See id. These rights are widely known, deeply held and enshrined in the United

States Constitution’s First Amendment. See U.S. Const. amend. I (“Congress shall make no law

. . . abridging the freedom of speech”).

The Town Hall Defendants make no argument that a reasonable officer would have

believed it was constitutional to bar Plaintiff on account of his past speech from the Town Hall

or from seeing the Mayor in order to speak to him. Accordingly, qualified immunity is not a

defense to Plaintiff’s First Amendment claim for money damages against Defendants Redmond,

Beato, Liu, Nieves and Gerola for their conduct at the Town Hall event.

3. The Resource Fair and the Individual Defendants

The Complaint does not state a First Amendment claim against the Resource Fair

Defendants as to the Resource Fair. The Resource Fair also was a limited public forum. The

Government hosted the Resource Fair for the limited purpose of allowing New York residents to

“[m]eet with top city commissioners and senior staff during scheduled office hours to address . . .

questions and concerns.” 1:18-cv-3698, ECF Dkt. No. 124 at 2; see Santucci, 2019 WL

3742286, at *10 (public official meetings are generally considered limited public forums).

Plaintiff informed the City officials that he intended to attend the event to “[p]ro[ve that] NYC

agencies haven’t been doing their jobs.” The Complaint plausibly alleges that Plaintiff was

barred from the forum for this reason. Plaintiff’s stated intention was accordingly consistent

with the purpose of providing this forum. See Bronx Household of Faith, 650 F.3d at 36.

Barring his attendance on this basis was therefore unreasonable and not content-neutral, and

contrary to the First Amendment.

However, the Complaint does not plausibly allege that the Resource Fair Defendants

were personally aware of Plaintiff’s purpose in attending the event, nor that they barred his entry

for that reason. The Complaint at most suggests that they were communicating with each other

and -- at someone’s direction -- barred Plaintiff from the event because he was “undesirable.”

Accordingly, even though the Complaint adequately alleges a constitutional violation as to the

Resource Fair, it fails to allege that any Resource Fair Defendant is personally liable for the

violation. See Kinter, 2019 WL 4263361, at *10. The First Amendment claim against the

Resource Fair Defendants as to the Resource Fair is dismissed.

B. The Selective Enforcement Claim (Count One)

Plaintiff asserts that he was discriminated against based on his viewpoint in violation of

the Fourteenth Amendment. A plaintiff who does not assert being a member of a protected class

may bring a selective enforcement Equal Protection claim. Smolen v. Wesley, 16 No. Civ. 2417,

2019 WL 4727311, at *15 (S.D.N.Y. Sept. 25, 2019). A selective enforcement claim requires

that Plaintiff received selective treatment when compared to others similarly situated, and that

the selective treatment was motivated by an intention to discriminate because of impermissible

considerations, such as the exercise of a constitutional right. See Berg v. Kelly, 897 F.3d 99, 113

(2d Cir. 2018).

The factual allegations and analysis here are the same as for Plaintiff’s First Amendment

claims. Liberally construed, the Complaint also alleges that Plaintiff was similarly situated to

others standing in line. A claim is sufficiently stated as to the Town Hall against Defendants

Redmond, Beato, Liu, Nieves and Gerola, as Plaintiff was targeted on the basis of his decision to

exercise his constitutional right to free speech. For the same reasons discussed above, qualified

immunity does not bar a request for money damages. Also as discussed above, a claim is not

stated as to the Resource Fair Defendants because the Complaint does not allege facts to show

that they knowingly excluded him from the event because of constitutionally protected activity.7

C. The Municipal Liability Claim (Count Two)8

“To bring a [§] 1983 lawsuit for municipal liability, a plaintiff must prove that action

pursuant to official municipal policy caused the alleged constitutional injury.” Hu v. City of New

York, 927 F.3d 81, 104 (2d Cir. 2019); see also Monell v. Dep’t of Social Servs., 436 U.S. 658,

694-95 (1978). A municipality may be held liable “if the plaintiff's injury was caused by ‘action

pursuant to official municipal policy.’ ‘Official municipal policy includes the decisions of a

government's lawmakers, the acts of its policymaking officials, and practices so persistent and

widespread as to practically have the force of law.’” Hernandez v. United States, --- F.3d ---,

2019 WL 4419379, at *9 (2d Cir Sept. 17, 2019) (internal citations omitted) (quoting Connick v.

7 The Complaint suggests that the Fourteenth Amendment claim is based on the decision in

Knight First Amendment Inst. at Columbia Univ., et al. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y.

2018), aff’d, 928 F.3d 226 (2d Cir. 2019). The issue there was whether, under the First

Amendment (not the Fourteenth Amendment), a citizen could be barred from an online forum

based on the content of his or her speech. The decision in Knight is consistent with the Court’s

holding regarding the First Amendment claim, supra, but is not relevant to Plaintiff’s Fourteenth

Amendment claim.

8 The Complaint suggests that the City violated New York State’s Open Meetings Law when

Plaintiff was barred from entering the Town Hall or Resource Fair. Section 103 of the Open

Meetings Law provides that the law pertains to a “meeting” of a “public body.” N.Y. Pub. Off.

Law § 103(a) (McKinney). Neither event here qualifies as a “meeting” or “public body” as

defined by the statute. See id. §§ 102(1) (“‘Meeting’ means the official convening of a public

body for the purpose of conducting public business”); 102(2) (“‘Public body’ means any entity,

for which a quorum is required in order to conduct public business . . . performing a

governmental function”). The Complaint does not plead a sufficient claim under the Open

Meetings Law.

Thompson, 563 U.S. 51, 60-61 (2011)). “Although ‘official policy’ often refers to formal rules

or customs that intentionally establish ‘fixed plans of action’ over a period of time, when a

municipality ‘chooses a course of action tailored to a particular situation,’ this may also

‘represent[ ] an act of official government ‘policy’ as that term is commonly

understood.’” Montero v. City of Yonkers, New York, 890 F.3d 386, 403 (2d Cir. 2018)

(considering a narrow policy and practice of retaliation against the plaintiff but affirming

dismissal where the complaint did not allege that the retaliatory acts had been initiated by a

policymaking official). “‘[E]ven a single action by a decisionmaker who ‘possesses final

authority to establish municipal policy with respect to the action ordered’ may deprive the

plaintiff of his or her constitutional rights.” Id. (quoting Amnesty Am. v. Town of W. Hartford,

361 F.3d 113, 126 (2d Cir. 2004)).

The Complaint adequately pleads a municipal liability claim for the persistent practice

and policy of excluding Plaintiff from public events where the Mayor attends. In addition to the

Town Hall and Resource Fair, the Complaint alleges that Plaintiff was barred by police officers

or other City officials from attending at least ten additional events where Mayor de Blasio was

speaking. The Complaint plausibly suggests that these actions were taken at the behest of a

policymaking official, based on the consistent actions of many different City officials and police

officers at various events, and the allegation that one of the defendants said that Plaintiff had to

wait for a decision about whether he and another person would be permitted to enter the Town

Hall event. At this stage in the litigation, and construing the pleadings in Plaintiff’s favor, the

Complaint alleges a persistent practice and policy to prohibit Plaintiff from such events due to

his intention to speak out critically.

The Complaint, liberally construed, also requests permanent injunctive relief against the

City so that Plaintiff can access public events. See Hardaway, 879 F.3d at 489 (“We afford a pro

se litigant ‘special solicitude’ by interpreting a complaint filed pro se to raise the strongest claims

that it suggests.” (quotation marks omitted)). This request for relief ultimately would be granted

only if Plaintiff succeeds on the merits of the constitutional claims after the facts are more fully

developed in discovery, and if the four factors required for permanent injunctions are satisfied:

[A] plaintiff seeking a permanent injunction must satisfy a four-

factor test before a court may grant such relief. A plaintiff must

demonstrate: (1) that [he] has suffered an irreparable injury; (2) that

remedies available at law, such as monetary damages, are

inadequate to compensate for that injury; (3) that, considering the

balance of hardships between the plaintiff and defendant, a remedy

in equity is warranted; and (4) that the public interest would not be

disserved by a permanent injunction. J

U.S.S.E.C. v Citigroup Glob. Markets, Inc., 752 F.3d 285, 296 (2d Cir. 2014) (quoting eBay Inc.

v MercExchange, L.L.C., 547 US 388, 391 (2006)).

The request for permanent injunction relief is not dismissed because the Complaint

alleges sufficient facts that if proven would satisfy the four eBay factors. “The loss of First

Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable

injury.” New York Progress and Protection PAC v Walsh, 733 F.3d 483, 486 (2d Cir. 2013)

(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); see Knight First Amendment Inst. at

Columbia Univ. v Trump, 302 F Supp. 3d 541, 577 (S.D.N.Y. 2018), aff’d, 928 F.3d 226 (2d Cir.

2019). The balance of hardships tilts in Plaintiff’s favor; the opportunity to voice objections to

political officials is “a fundamental principle of our constitutional system,” New York Times Co.,

376 U.S. at 269, whereas Defendants need only provide Plaintiff access as long as he complies

with reasonable conditions. Monetary damages cannot adequately compensate Plaintiff for these

injuries because of this fundamental interest. Id. Finally, “securing First Amendment rights is in

the public interest.” Walsh, 733 F.3d at 488; see also Amarin Pharma, Inc. v. U.S. Food & Drug

Admin., 119 F. Supp. 3d 196, 237 (S.D.N.Y. 2015). A narrowly tailored injunction that allows

Plaintiff access to public events so long as he does not act in a disruptive manner would be in the

public interest and respect both Plaintiff’s First Amendment rights and the City’s right to conduct

civic meetings in an orderly fashion.

Liberally construed, and construing all facts in Plaintiff’s favor, the Complaint states a

constitutional claim against the City, which still must be proved. In the event that Plaintiff

sustains his burden of proof, an appropriately tailored injunction that lifts the bar on Plaintiff’s

attending City events may be appropriate.

D. The Fourth Amendment Claim (Count Three)

The Fourth Amendment protects against unreasonable searches and seizures by the

Government. U.S. Const. amend. IV. The “seizure of property occurs when there is some

meaningful interference with an individual’s possessory interest in that property.” United States

v. Iverson, 897 F.3d 450, 458 (2d Cir. 2018) (citing United States v. Jacobsen, 466 U.S. 109, 113

(1984)). The Complaint incorporates by reference security footage of the Bronx courthouse on

the day of the Resource Fair Incident.9 See Garcia v. Does, 779 F.3d 84, 87-88 (2d Cir. 2015)

(allowing consideration of videos incorporated by reference into the complaint on a motion to

dismiss where the parties did not object, but without reaching the issue). The footage shows that

Defendant Captain Manzi took possession of Plaintiff’s bag for less than five seconds and that

9 See e.g., Dkt. No. 45 ¶ 6(d) (“Mr. Manzi is shown at 9:47 am on 5/23/17 in video footage that

was recorded by the security camera controlled by the New York State Office of Court

Administration that was recording from a location near Room 105 in the Bronx Supreme Court,

as Mr. Manzi used his left hand to make a hand gesture to illegally direct me away from the

entrance. . . . Additionally, at 9:49 am on 5/23/17, the same security camera I just discussed

recorded Mr. Manzi using his right hand to illegally seize a bag of mine”); Dkt No. 66 at 19-25

(where Plaintiff took still images of the video footage and described their events).

Plaintiff immediately retrieved the bag thereafter. This is not meaningful interference with

Plaintiff's possession, and therefore Plaintiff does not state a claim for interference with a

property interest.

IV. CONCLUSION

For the foregoing reasons, the State Defendants’ motion to dismiss is GRANTED. The

City Defendants’ motion to dismiss is GRANTED in part and DENIED in part as follows:

Defendants Ringel and Miller are dismissed. The claims that Plaintiffs First and Fourteenth

Amendment rights were violated at the Town Hall survive against Defendants Redmond, Beato,

Liu, Nieves and Gerola. The Monell claim survives against the City.

The Clerk of Court is respectfully directed to close the motions at Docket Numbers 80,

85, and to mail a copy of this Opinion and Order to pro se Plaintiff.

Dated: September 30, 2019

New York, New York

UNITED STATES DISTRICT JUDGE

17