Reale v. Haskell

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

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

DANIEL REALE and :

MIRIAM IRIZARRY, :

:

Plaintiffs, :

v. :

:

CHRISTI HASKELL; SCOTT SUGARMAN; :

PLAINFIELD BOARD OF EDUCATION; : Civil No. 3:21-cv-1349 (AWT)

KATHLEEN BARRY; ROXANNE BOISSEE; :

PEGGY BOUREY; MICHAEL BROUGHTON; :

ARRIANA LANDRY; HEATHER SMITH; :

AUDREY LEMIEUX; DIANE SUMMA; :

and PAUL BRENTON, :

:

Defendants. :

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

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

The defendants have moved for summary judgment on the

remaining claims in the Amended Complaint: Daniel Reale’s claim

under Title II of the Americans with Disabilities Act, 42 U.S.C.

§ 12101 et seq. (“ADA”) against Christi Haskell, Scott Sugarman,

and the Plainfield Board of Education (the “Board”) (Count One);

Reale’s First Amendment claim against the same defendants (Count

Two); and Miriam Irizarry’s First Amendment claim against

Sugarman and the Board (Count Three). Haskell has been the Chair

of the Board since 2017, and Sugarman has been the Assistant

Superintendent since 2019. The defendants move for summary

judgment on all these counts. For the reasons set forth below,

the motion is being granted.

I. FACTUAL BACKGROUND

During the COVID-19 pandemic, the Board issued a facemask

policy that applied to in-person attendance at Board meetings.

Reale’s claims in Count One and Count Two arise out of

enforcement of that policy against him at a Board meeting on

September 8, 2021. Irizarry’s claim in Count Three arises out of

a September 1, 2021 protest, outside the Plainfield Central

Middle School (the “Middle School”), in which she participated.

A. Reale

1. The Governor’s Executive Orders

In 2021, the Governor of Connecticut, Ned Lamont, issued a

series of executive orders relating to the COVID-19 pandemic.

Executive Order 13A, issued on August 5, 2021, contained the

following language:

A person while indoors in a public place who does

not maintain a safe social distance of approximately

six feet from every other person and who is not fully

vaccinated for COVID-19 shall cover their mouth and

nose with a mask or cloth face covering. A person

shall be considered fully vaccinated 14 days after

receiving the final recommended dose of a vaccine

approved for use against COVID-19 by U.S. Food and

Drug Administration, or as otherwise defined by the

Centers for Disease Control.

a. Nothing in this order shall require the use of

a mask or cloth face covering by anyone for whom doing

so would be contrary to his or her health or safety

because of a medical condition, behavioral condition,

or disability, or anyone under the age of 2 years. Any

person who declines to wear a mask or face covering

because of a medical condition, behavioral condition,

or disability shall be exempt from this order and any

requirement to wear masks or face coverings

promulgated in or pursuant to any COVID-19 Order, but

only if such person provides written documentation

that the person is qualified for the exemption from a

licensed or certified medical provider, psychologist,

marriage and family therapist, professional counselor,

social worker, or behavior analyst, the Department of

Developmental Services or other state agency that

provides or supports services for people with

emotional, intellectual or physical disabilities, or a

person authorized by any such agency. Such

documentation shall not be required to name or

describe the condition that qualifies the person for

the exemption.

b. The Commissioner of Public Health shall issue

a rule setting forth a comprehensive list of

facilities, venues, and other locations where masks

and cloth face coverings are required, including for

people who are vaccinated, and will amend said rule as

the Commissioner determines is warranted by public

health conditions. . . .

. . . .

e. Any business, nonprofit organization, property

owner, or state, regional, or municipal government or

agency may, subject to the exceptions in subsection

(a) of this order . . . require the universal use of

masks or face coverings or require staff to wear masks

or face coverings in settings under their ownership or

control, including, but not limited to, offices,

places of public accommodation, public venues, or

public meetings.

Defs.’ Local Rule 56(a)(1) Statement of Facts in Supp. of Summ.

J. (ECF No. 167-2) (“DSF”) Ex. 8 (ECF No. 167-10), at 4–6.1

Pursuant to paragraph b, on August 7, 2021, the State of

Connecticut Department of Public Health issued a rule stating

1 The page numbers cited to in this ruling for documents that have been

electronically filed refer to the page numbers in the header of the documents

and not to the page numbers in the original documents, if any.

that “all individuals, regardless of vaccination status, shall

wear a face-covering mask at all times when . . . [i]nside PreK-

12 public or non-public . . . school buildings, excluding

residential dormitories, when students are present,” but there

is “no need to wear a mask when in a school building on a

weekend or after hours when students are not present inside the

building . . . .” Defs.’ Supp. Local Rule 56(a)(1) Statement of

Undisputed Material Facts (ECF No. 183-1) (“Defs.’ Supp.”) Ex.

18 (ECF No. 183-2), at 1.

2. The Board’s Facemask Policy

At the time of the events at issue, the Board held in-

person public meetings in a public venue, the Plainfield High

School auditorium. The Board adopted a policy that required in-

person attendees to wear a facemask. The policy was published on

the Board’s website and was attached to each meeting agenda. The

policy stated that there was a facemask requirement

as outlined in Executive Order 13a [i]nside PreK-12

public or non-public (e.g., “private”, “independent”,

“boarding”, etc.) school buildings, excluding

residential dormitories, when students are present. As

students are present during all BOE meetings, masks

are required for all visitors. Individuals who are

unable to wear a mask in the building as outlined by

the executive order, shall be provided the ability to

view the meeting remotely and shall be accommodated in

accordance with Order 7b.

DSF Ex. 1 (ECF No. 167-3), at 7 (Ex. A). This requirement was in

effect until March 2022, after the events at issue here.

In accordance with its facemask policy, the Board’s

meetings were streamed online and there was an option for remote

participation. Instructions for remote participation were

published on the Board’s website. Those instructions provided:

Plainfield Public Schools provides access to

public Board of Education meetings virtually through

Zoom teleconference.

At designated meetings members of the public can

address the Board in real time by submitting a Public

Speaker request to tammy@plainfieldschools.org by

12:00 noon the day of the meeting. Comments will be

both live and virtual, but all speakers must sign up

via the form. . . .

. . . .

Members of the public may also submit public

comments via the following email address:

questions@plainfieldschools.org . . . . Members of the

public are encouraged to send their thoughts and

opinions to the Board at any time, but only those

received during the public comment submission window

will be included in the public record of a Board of

Education meeting.

Please note that [p]er BOE policy 9323.1, there

will be no dialogue between Board members and the

Public at Board meetings except to clarify the nature

of questions or comments.

Under the direction of the Board Chair, members

of the Board and the administration may respond to

comments. However, in consideration of those in

attendance and in an effort to proceed in a timely

manner, follow-up discussion may need to take place

outside of the meeting setting.

DSF Ex. 1, at 7 (Ex. A). Online participants were not required

to give any justification for their remote attendance and were

not required to wear a facemask. Reale knew that he could attend

remotely in this manner; he simply thought that “based on the

illegal executive orders, they had no right to preclude me from

being there in person.” DSF Ex. 11 (Reale Depo.) (ECF No. 168-

1), at 53:24–54:1.

3. The September 8, 2021 Board Meeting

On September 8, 2021, both Executive Order 13A and the

Board’s facemask policy were in effect. Students were present in

the auditorium for the entire duration of the September 8, 2021

Board meeting. Two student representatives sat on the stage with

the Board. See Defs.’ Supp. Ex. 19 (Supp. Haskell Aff.) (ECF No.

183-3) ¶ 10 (“Board of Education Student Representatives were

present for the entire duration of the September 8, 2021 Board

of Education meeting.”); Defs.’ Supp. ¶ 66 (authenticated video)2

(“BOE Video”), at 21:27–23:43 (showing two of the three student

representatives introducing themselves while in their Board

seats onstage).

That evening, Reale attended a Board meeting “in-person and

without a mask.” DSF ¶ 36; see BOE Video, at 44:00–45:12. “Prior

to the start of the meeting, [Sugarman] encountered two

individuals who were not wearing masks while inside of the

school building. One of those individuals was Daniel Reale.” DSF

2 Reale asserts “the audio and video did not adequately and completely capture

the entirety of the interactions among the Parties. In fact, I was unable to

hear all the interactions in this video. . . . This requires a trial.” Reale

Supp. Aff. (ECF No. 194-2) ¶ 3. Although Reale was not on camera, the audio

is clear, and there is no genuine issue as to what was said.

Ex. 2 (Sugarman Aff.) (ECF No. 167-4) ¶ 36. “[Sugarman] asked

both individuals to wear a mask and, after some discussion, one

of the two individuals put on a mask, but Mr. Reale continued to

refuse to wear a mask.” Id. ¶ 37. When it was Reale’s turn to

speak during the time for public comment, defendant Haskell

asked him to put on a mask before he gave his remarks. See BOE

Video, at 44:35-45:12. Haskell avers that “[she] did not know

what topic Mr. Reale intended addressing with the BOE during

public comment.” DSF Ex. 1 (Haskell Aff.) (ECF No. 167-3) ¶ 18.

Reale stated that he was exempt because he had a medical

exemption, but he provided no documentation as required by

Executive Order 13A. See BOE Video, at 44:35-45:12. Multiple

people asked Reale to put on a facemask, and he again stated

that he had an exemption. See BOE Video, at 44:00-45:12. When

Reale was asked, “Do you have some paperwork that suggests

you’re exempt from the state law?”, he responded, “Plenty of

medical records, don’t have them on me, don’t need to have them

on me, you can’t ask, that’s a Tier IV HIPAA violation.” BOE

Video, at 44:45-44:55. Reale offered to address the Board from

the back of the room, but the Board declined his offer because

that would have been in violation of the Executive Order.

Ultimately, Reale was asked to leave the building by the Board

because he refused to wear a mask.3 See BOE Video, at 44:53-

45:12.

While Haskell avers that she did not become aware that

Reale was not wearing a mask until it was his turn to speak,

Reale disputes this. He avers that “I was directly in front of

where the Board of Education sat . . . and was plainly not

wearing a mask at any time, in direct view of Defendant Haskell.

I was also wearing a suit and very plainly stood out.” Reale

Aff. (ECF No. 177-1) ¶ 12. However, Sugarman avers that “[he]

asked Mr. Reale to sit near the back away from other people,”

DSF Ex. 2 ¶ 40, and that “Reale moved his seat to the back of

the auditorium as requested,” id. ¶ 41. In any event, Reale

provides no evidentiary support for his contention that Haskell

saw him before it was his turn to speak; he only avers that he

was sitting where she could have seen him.

4. Reale’s Claimed Disability

Reale testified that, “from basically childhood,” he has

suffered from chronic rhinosinusitis and associated allergies,

which can “result in asthma.” DSF Ex. 11, at 47:11–12, 51:14–16.

Breathing in allergens, such as pollen, mold, and dust, through

3 Reale denies paragraph 45 of the defendants’ Local Rule 56(a)(1) Statement

of Undisputed Material Facts (ECF No. 167-2, at 9) but cites only to

documents that are inadmissible hearsay, namely freedom of information

requests written by him. Reale’s contention that the documents are business

records of Attorney Bona’s office lacks merit because they do not satisfy the

requirements of Federal Rule of Evidence 803(6) because, among other things,

making them was not a regular practice of Attorney Bona’s law office.

his nose and mouth exacerbates his condition. While at home,

Reale minimizes the impact of this condition by reducing the

amount of pollen, mold, and dust in his house. The last time

that Reale saw an allergist for what he calls his chronic

rhinosinusitis was in 2011. No doctor has ever recommended

surgery to treat it.

There are no medical records showing that a doctor has ever

diagnosed Reale as having chronic rhinosinusitis. Reale has

provided medical records for treatment he received on February

14, 2018, August 31, 2019, January 6, 2020, and July 7, 2020. On

two of those occasions his chief complaint included sinus and

chest congestion; on two occasions it did not. On one occasion

the duration was listed as two weeks on-and-off; on the other

occasion it was listed as one week. On all four occasions his

physical exam showed that his respiratory functions were normal.

On the two occasions when he was not complaining about sinus or

chest congestion, an examination showed that his ears, nose, and

throat were normal. He was prescribed Augmentin and Prednisone

for issues relating to his sinuses and chest.

Reale avers that a now-deceased allergist who saw him in

2011 “diagnosed his condition” and determined that Reale’s sinus

cavities were smaller than normal, Reale Aff. ¶ 6, but the

“medical record has been purged” due to its age, DSF Ex. 12

(Reale Depo.) (ECF No. 168-2), at 39:18–19.

When asked whether he has asthma, Reale testified that “I

have remediated a lot of my asthma . . . .” DSF Ex. 11, at

51:14–16. When asked whether he uses an inhaler, Reale testified

that “I used to have an inhaler, although what had happened --

that was more true when I was 90 pounds heavier than I am now.”

Id. at 51:8–20. When asked when he last used an inhaler, Reale

responded, “I wanna say 2018.” Id. at 51:21–22. That inhaler was

not one for which a prescription was required. Rather it was an

over-the-counter Primatene Mist. The parties disagree about

whether Reale ever had an inhaler for which a prescription was

required, but Reale does not dispute that the last time he used

an inhaler was in 2018 and that it was an over-the-counter

product.

Reale testified that he cannot wear a facemask because

“[i]t gets really uncomfortable really quickly. I heat up and it

kind of [i]s just--it’s like recycling my own air to the point

where it’s like the mask just has to come off.” DSF Ex. 11, at

49:12–15. He also testified that a ”face shield kind of has the

same effect. I mean, it can’t stay on for more than like 10

minutes,” or else “[i]t just gets really uncomfortable and hard

to breathe.” Id. at 49:18–20, 23–24.

Reale testified that in or around May 2020 he wore an N95

mask during a “one-man protest in Lions Park” against

enforcement of COVID-19 regulations and walked four laps around

a track. DSF Ex. 12, at 69:18–19. He avers that the mask was not

tight enough to form a seal and that he “purposefully had air

gaps in it so [he] could breathe.” Reale Aff. ¶ 8. When asked

whether he exercises, Reale testified, “I try to take walks.”

DSF Ex. 11, at 50:1.

B. Irizarry

The students at the Middle School are in grades 6 through

8. The Middle School is located on Canterbury Road. The Middle

School grounds extend out to a portion of public sidewalk that

runs the length of the grounds, but no further. The entry point

for buses and other vehicles from Canterbury Road is at one side

of the grounds, towards the right if one is facing the Middle

School. There is a school parking lot past that entry point. The

exit for buses and other vehicles is further along Canterbury

Road, to the left if one is facing the Middle School. The

sidewalk runs the entirety of the space between that entrance

and that exit, and continues on beyond the exit. It does not

extend beyond the entrance in the other direction. See DSF Ex.

2, at 14 (Ex. C) (map annotated by Sugarman). At 7:00 a.m. on

school days, school buses are in the process of dropping off

children. “Parents will occasionally stop their vehicles on

Canterbury Road and drop their children off at the school

entrance rather than enter the school parking lot.” DSF ¶ 14.

The protest in which Irizarry participated began at 7:00

a.m., and it was attended by Irizarry, Stacy Vargas, and a man

named Ryan. At 7:00 a.m., buses and parents were in the process

of dropping off children and school was scheduled to begin at

7:55 a.m. The area where the protesters had located themselves

was on the sidewalk, at the corner of the entrance to the school

grounds, in an area commonly used by parents to drop off their

children, and children were being dropped off at that time. See

DSF Ex. 14 (Irizarry Depo.) (ECF No. 169-2), at 31:13–14

(“Parents were dropping them off and school [buses] were

dropping them off.”). Ryan had parked his truck on the grass

next to the sidewalk. See id. at 33:7 (confirming that Ryan’s

car was parked in this location). Irizarry and Vargas had parked

their cars in the high school parking lot. Ryan’s truck was

parked in a manner that impeded the flow of traffic and

obstructed the buses and cars from entering the school grounds.

Initially two security officers, John Nisbet and Paul

Cloke, approached the protestors, but Irizarry was not present

for this interaction. Nisbet informed Ryan that he needed to

move his truck because it was impeding the flow of traffic.

Nisbet also informed Ryan, who was smoking, that smoking was not

allowed on school grounds, and Ryan responded by blowing smoke

into Nisbet’s face. Nisbet and Cloke left to get the Assistant

Superintendent, Sugarman.

When Sugarman arrived on the scene, accompanied by Nisbet

and Cloke, Sugarman “asked the owner of the truck to relocate

his vehicle to an area that was not impeding traffic and

obstructing the [buses] and cars from entering the school

grounds.” DSF Ex. 2 ¶ 22. Sugarman also “asked the protestors to

relocate to a different location that was either across the

street or further down the sidewalk.” Id. ¶ 23. In addition, he

explained that “smoking was prohibited on school grounds and

their presence was obstructing parents from dropping off their

children for school.” Id. “The protestors complied with

[Sugarman’s] request to relocate and [Sugarman] had no further

interaction with them after that.” Id. ¶ 24.

Sugarman identified on a map the area where the protesters

were located and the two places he suggested as alternative

locations. One place was just past the exit from the Middle

School grounds used by buses and other vehicles, and was on the

sidewalk. The other alternative was on the other side of the

entrance to the Middle School property just across from the

driveway from where the protesters were located; there was no

sidewalk in this area. During her deposition, Irizarry could not

recall what alternative location Sugarman suggested to the

protesters.

During his deposition Sugarman testified that “there w[ere]

three people there that [he] asked politely to move.” DSF Ex. 13

(Sugarman Depo.) (ECF No. 169-1), at 38:10–11. Sugarman avers

that he “never prohibited the protestors from protesting,” id.

¶ 28, and “never threatened to have any of the protestors

arrested or trespassed from the school property,” id. ¶ 29.

Although a Plainfield police officer visited the Middle School

while the protesters were present, the officer was “across the

street” and “was patrolling” before “pull[ing] into the school.”

DSF Ex. 14, at 43:18–20. The officer “did not come out far.” Id.

at 44:19. The police officer was not called by Sugarman.

In their Local Rule 56(a)(1) Statement of Undisputed

Material Facts, the defendants cite to portions of Irizarry’s

deposition testimony. See DSF Ex. 14. However, the plaintiffs do

not cite to any of her testimony, either in their Local Rule

56(a)(2) Statement or in their briefs. Despite the fact that

Irizarry is the only plaintiff who was present at the September

1, 2021 protest, and thus has personal knowledge, she has not

submitted any affidavit of her own, nor any affidavit of Stacy

Vargas or Ryan.

In paragraph 57 of their Local Rule 56(a)(2) Statement, the

plaintiffs cite to paragraph 14 of Reale’s affidavit in which he

refers to a YouTube video and states, “I have also viewed my co-

Plaintiff’s recorded interaction which involves her First

Amendment claims at the following URL . . . .” However, this

YouTube video has not been authenticated and is therefore

inadmissible. Under Federal Rule of Evidence 901(a), “[t]o

satisfy the requirement of authenticating or identifying an item

of evidence, the proponent must produce evidence sufficient to

support a finding that the item is what the proponent claims it

is.” Reale was not present on September 1, 2021, so he is not “a

witness with knowledge” of the event, Fed. R. Evid. 901(b)(2),

and there is no suggestion in the plaintiffs’ papers that there

is any other basis on which he could authenticate the video.

The plaintiffs object to certain paragraphs in the

defendants’ Local Rule 56(a)(1) Statement, stating that they

“were denied the reasonable ability to have access to Mr. Nisbet

for a deposition, and examination of him requires either a

deposition or a trial.” Pls.’ Local Rule 56(a)(2) Statement in

Opp. to Summ. J. (ECF No. 177-2) (“PSF”) ¶ 33. See also id.

¶¶ 34–35, 51–57, 59–65 (making the same statement). This does

not create a genuine issue with respect to any of the facts set

forth in the defendants’ Local Rule 56(a)(1) Statement. In

addition, the court notes that the defendants made a

supplemental disclosure about Nisbet approximately three weeks

before the close of discovery, after he had been mentioned in a

deposition, and that briefing of discovery disputes continued

after that disclosure. Thus Irizarry, who is represented by

counsel, had ample time to take steps to depose Nisbet. As the

defendants state, “Nisbet’s disclosure was made to Plaintiffs

while discovery was still open. Plaintiffs knew the security

guards existed since well before this lawsuit was filed. Despite

this knowledge, Plaintiffs never requested any information as to

the identities of the school security officers at any point[]

during discovery.” Defs.’ Reply in Supp. of Summ. J. (ECF No.

185) (“Defs.’ Reply”), at 8.

II. LEGAL STANDARD

A motion for summary judgment may not be granted unless the

court determines that there is no genuine issue of material fact

to be tried and that the facts as to which there is no such

issue warrant judgment for the moving party as a matter of law.

Fed. R. Civ. P. 56(a). See Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986); Gallo v. Prudential Residential Servs., 22

F.3d 1219, 1223 (2d Cir. 1994). Rule 56(c) “mandates the entry

of summary judgment . . . against a party who fails to make a

showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp., 477 U.S. at

322.

When ruling on a motion for summary judgment, the court

must respect the province of the jury. The court, therefore, may

not try issues of fact. See, e.g., Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks Bd. of

Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987); Heyman v. Commerce

of Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). It is

well-established that “[c]redibility determinations, the

weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of the

judge . . . .” Anderson, 477 U.S. at 255. Thus, the trial

court’s task is “carefully limited to discerning whether there

are any genuine issues of material fact to be tried, not

deciding them. Its duty, in short, is confined . . . to issue-

finding; it does not extend to issue-resolution.” Gallo, 22 F.3d

at 1224.

Summary judgment is inappropriate only if the issue to be

resolved is both genuine and related to a material fact.

Therefore, the mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly

supported motion for summary judgment. An issue is “genuine

. . . if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson, 477 U.S. at

248 (internal quotation marks omitted). A material fact is one

that would “affect the outcome of the suit under the governing

law.” Id. As the Court observed in Anderson: “[T]he materiality

determination rests on the substantive law, [and] it is the

substantive law’s identification of which facts are critical and

which facts are irrelevant that governs.” Id. Thus, only those

facts that must be decided in order to resolve a claim or

defense will prevent summary judgment from being granted. When

confronted with an asserted factual dispute, the court must

examine the elements of the claims and defenses at issue on the

motion to determine whether a resolution of that dispute could

affect the disposition of any of those claims or defenses. See

Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d

Cir. 2014) (“‘[A] complete failure of proof concerning an

essential element of the nonmoving party’s case necessarily

renders all other facts immaterial.’” (quoting Celotex, 477 U.S.

at 323)). Immaterial factual disputes will not prevent summary

judgment.

When reviewing the evidence on a motion for summary

judgment, the court must “assess the record in the light most

favorable to the non-movant . . . and draw all reasonable

inferences in [the non-movant’s] favor.” Weinstock v. Columbia

Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Delaware & Hudson

Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir.

1990) (alteration in original)). Nonetheless, the inferences

drawn in favor of the nonmovant must be supported by the

evidence. “[M]ere speculation and conjecture is insufficient to

defeat a motion for summary judgment.” Stern v. Trustees of

Columbia Univ., 131 F.3d 305, 315 (2d Cir. 1997) (Calabresi, J.,

dissenting) (internal quotation marks omitted) (quoting W. World

Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990)).

Moreover, the “mere existence of a scintilla of evidence in

support of the [nonmovant’s] position will be insufficient;

there must be evidence on which [a] jury could reasonably find

for the [nonmovant].” Anderson, 477 U.S. at 252.

Also, the nonmoving party cannot simply rest on the

allegations in its pleadings since the essence of summary

judgment is to go beyond the pleadings to determine if a genuine

issue of material fact exists. See Weinstock, 224 F.3d at 41.

“Although the moving party bears the initial burden of

establishing that there are no genuine issues of material fact,”

id., if the movant demonstrates an absence of such issues, a

limited burden of production shifts to the nonmovant, who must

“demonstrate more than some metaphysical doubt as to the

material facts, . . . [and] must come forward with specific

facts showing that there is a genuine issue for trial,”

Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d

Cir. 1993) (emphasis, quotation marks and citations omitted).

“Accordingly, unsupported allegations do not create a material

issue of fact.” Weinstock, 224 F.3d at 41. If the nonmovant

fails to meet this burden, summary judgment should be granted.

Because one of the plaintiffs in this case is proceeding

pro se, the court must read the pro se plaintiff’s pleadings and

other documents liberally and construe them in a manner most

favorable to the plaintiff. See Burgos v. Hopkins, 14 F.3d 787,

790 (2d Cir. 1994). Moreover, because the process of summary

judgment is “not obvious to a layman,” Vital v. Interfaith

Medical Ctr., 168 F.3d 615, 620 (2d Cir. 1999) (internal

quotation marks and citation omitted), the district court must

ensure that a pro se plaintiff understands the nature,

consequences, and obligations of summary judgment. See id. at

620-21. Thus, the district court may itself notify the pro se

plaintiff as to the nature of summary judgment; the court may

find that the opposing party’s memoranda in support of summary

judgment provide adequate notice; or the court may determine,

based on thorough review of the record, that the pro se

plaintiff understands the nature, consequences, and obligations

of summary judgment. See id.

After reviewing the defendant’s memorandum in support of

summary judgment and the pro se plaintiff’s submissions in

opposition to summary judgment in this case, the court concludes

that the pro se plaintiff understands the nature, consequences

and obligations of summary judgement. First, the defendant

served the notice to pro se litigants required by Local Rule

56(b). Second, the defendant’s memorandum states the nature and

consequences of summary judgment. Third, the plaintiffs’

memorandum also states the nature and consequences of summary

judgment. See Pls.’ Mem. in Supp. of Obj. to Mot. for Summ. J.

(ECF No. 177-3) (“Pls.’ Obj.”), at 4–5. The court therefore

finds that the pro se plaintiff in this case understands the

nature, consequences and obligations of summary judgment.

Finally, “the Court may consider only admissible evidence

in ruling on summary judgment.” Ferraresso v. Town of Granby,

646 F. Supp. 2d 296, 301 (D. Conn. 2009).

III. DISCUSSION

A. Count One: ADA Claim by Reale

Reale claims that Haskell, Sugarman, and the Board violated

Title II of the ADA4 when they enforced a facemask requirement

against him at a public meeting during the coronavirus pandemic.5

“To establish a claim under Title II, a plaintiff must

demonstrate ‘(1) that she is a qualified individual with a

disability; (2) that she was excluded from participation in a

public entity’s services, programs or activities or was

otherwise discriminated against by a public entity; and (3) that

such exclusion or discrimination was due to her disability.’”

Tardif v. City of New York, 991 F.3d 394, 404 (2d Cir. 2021)

(quoting Davis v. Shah, 821 F.3d 231, 259 (2d Cir. 2016)). The

first element, i.e. that a plaintiff is a qualified individual

4 The Amended Complaint cites to Title III of the ADA, see Am. Compl. ¶¶ 17–

19, 22, 26, but is undisputed that his claim is being brought under Title II.

5 Reale purports to sue defendants Haskell and Sugarman in their individual

capacities for a Title II violation. However, “neither Title II of the ADA

nor § 504 of the Rehabilitation Act provides for individual capacity suits

against state officials.” Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn,

280 F.3d 98, 107 (2d Cir. 2001); see also Walker v. Thibault, No. 23-7896,

2025 WL 294507, at *3 (2d Cir. Jan. 24, 2025) (holding that municipal

officials “were entitled to summary judgment on these claims” in their

individual capacities under Title II pursuant to Garcia).

with a disability, can be shown by any one of three ways. “The

term ‘disability’ means, with respect to an individual--(A) a

physical or mental impairment that substantially limits one or

more major life activities of such individual; (B) a record of

such an impairment; or (C) being regarded as having such an

impairment.” 42 U.S.C. § 12102(1).6 “Major life activities”

include but are not limited to “caring for oneself, performing

manual tasks, seeing, hearing, eating, sleeping, walking,

standing, lifting, bending, speaking, breathing, learning,

reading, concentrating, thinking, communicating, and

working.” Id. § 12102(2)(A).

Here there has been a complete failure of proof by Reale

with respect to each of the three ways a plaintiff can show that

he is a qualified individual with a disability. Because Reale

cannot establish the first element of this claim, the defendants

are entitled to summary judgment on Count One.

1. Substantially Limits a Major Life Activity

Reale has failed to offer evidence that creates a genuine

issue as to whether he has “a physical or mental impairment that

substantially limits one or more major life activities.” Id.

6 Reale contends that the ADA Amendments Act of 2008 (“ADAAA”) encompasses his

alleged disability and thus presents a “fatal flaw in Defendants’ argument.”

Pls.’ Obj., at 9. “Congress, however, retained the term ‘substantially

limits’ in this amendment, while instructing that ‘the definition of

disability . . . shall be construed in favor of broad coverage . . . , to the

maximum extent permitted by the terms of this chapter,’ 42 U.S.C.

§ 12102(4)(A) (emphasis added).”). B.C. v. Mount Vernon Sch. Dist., 837 F.3d

152, 161 n.10 (2d Cir. 2016).

§ 12102(1)(A).

“[I]n assessing whether a plaintiff has a disability, [we]

have been careful to distinguish impairments which merely affect

major life activities from those that substantially limit those

activities.” B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 160

(2d Cir. 2016) (alteration in original) (quoting Ryan v. Grae &

Rybicki, P.C., 135 F.3d 867, 870 (2d Cir. 1998)). “A plaintiff

seeking redress under the ADA must ‘show that any limitations

are in fact substantial, not amounting to only a mere difference

in conditions, manner, or duration.’” Id. (quoting Bartlett v.

N.Y. State Bd. of Law Exam’rs, 226 F.3d 69, 80 (2d Cir. 1998)).

“Factors to consider in determining whether a major life

activity is substantially limited include: the nature and

severity of the impairment; its duration or expected duration;

and the existence of any actual or expected permanent or long

term impact.” Dominguez v. Bd. of Educ. of Yonkers City Sch.

Dist., No. 23 CIV. 2460 (NSR), 2024 WL 3427217, at *4 (S.D.N.Y.

July 16, 2024) (internal quotation marks and citations omitted).

It is “well-established that an impairment does not

significantly restrict a major life activity if it results only

in mild limitations.” Id. (internal quotation marks and

citations omitted).

[C]ourts in this circuit have held that a substantial

limitation on breathing is established when a

plaintiff puts forward evidence of episodes requiring

medical interventions or chronic breathing problems.

Compare Gorbea v. Verizon N.Y., Inc., No. 11 Civ.

3758, 2014 WL 917198, at *8 (S.D.N.Y. Mar. 10, 2014)

(finding plaintiff’s asthma, which was exacerbated by

high temperatures, chemicals, and dust, did not

substantially limit her breathing, despite a history

of asthma, use of an inhaler, and a diagnosis of

reactive airway dysfunction syndrome and

bronchospasm); Boughton v. Town of Bethlehem, No. 13

Civ. 1583, 2015 WL 5306077, at *5–6 (N.D.N.Y. Sept.

10, 2015) (finding plaintiff’s “uncontrolled

hypertension,” exacerbated by extreme weather, did not

substantially limit his ability to breathe when it

resulted in “infrequent breathing problems” of chest

tightness and breathing difficulties), with Hoeffner

v. Cnty. of Orange, No. 17 Civ. 9344, 2020 WL 1165851,

*6 (S.D.N.Y. Mar. 10, 2020) (finding plaintiff who

suffered nineteen asthma attacks during a three-month

period caused by her exposure to mold had a disability

within the meaning of the ADA); Murtha v. N.Y. State

Gaming Comm’n, 2019 WL 4450687, *10 (S.D.N.Y. Sept.

17, 2019) (finding plaintiff adequately pleaded that

his ability to breathe was substantially impaired when

he alleged that his asthma, caused by a respiratory

allergy, resulted in “medical emergencies including

three hospitalizations over a three-month period”).

Norman v. NYU Langone Health Sys., 492 F. Supp. 3d 154, 164

(S.D.N.Y. 2020), aff’d, No. 20-3624-CV (L), 2021 WL 5986999 (2d

Cir. Dec. 17, 2021).

In Shine v. New York City Housing Authority, the plaintiff

“allege[d] that she experiences ‘trouble breathing at night.’”

No. 19-CV-04347 (RA), 2020 WL 5604048, at *7 (S.D.N.Y. Sept. 18,

2020). The court concluded that she had failed to plead facts

that established a substantial limitation. The court explained:

Breathing is one of the enumerated major life

activities covered under the ADA regulations. 28

C.F.R. § 35.108(c)(1)(i). As described above, courts

in this Circuit have established that plaintiffs must

plead more than vague or conclusory allegations

regarding “difficulty” or “trouble” conducting a major

life activity. See [Parada v. Banco Indus. De

Venezuela, C.A., 753 F.3d 62, 69 (2d Cir. 2014)];

Farina, 458 F. App'x. at 15; [Nadel v. Shinseki, 57 F.

Supp. 3d 288, 296 (S.D.N.Y. 2014)]. Shine is thus

required to plead additional facts beyond simply

claiming that she has “trouble breathing at night,”

Compl. ¶ 42, to establish a substantial limitation,

Farina, 458 F. App’x. at 15; Nadel, 57 F. Supp. 3d at

296.

Id. On the other hand, Shine alleged with respect to her minor

son that his “difficulty breathing is severe enough that he

requires use of an asthma machine to ‘breathe properly.’” Id.

The court concluded that “[t]his is sufficient to allege that

C.W. experiences a substantial limitation to the major life

activity of breathing, and therefore has a cognizable disability

within the meaning of the ADA.” Id.

In Johnson v. Mount Sinai Hospital Group, Inc., the

plaintiff alleged that facemasks “are uncomfortable and hot to

wear,” and that “[t]hey make it difficult to breathe,” and the

court concluded that she had failed to plausibly allege a

substantial limitation of her breathing. No. 22-CV-2936 (AMD)

(JRC), 2023 WL 2163774, at *4 (E.D.N.Y. Feb. 22, 2023), aff’d,

No. 23-466, 2024 WL 3289475 (2d Cir. July 3, 2024).

“Whether a plaintiff with asthma is substantially limited

in his ability to work or to breathe is a fact specific

question.” Murtha, No. 17 CIV. 10040 (NSR), 2019 WL 4450687, at

*10 (S.D.N.Y. Sept. 17, 2019) (citing Burke v. Niagara Mohawk

Power Corp., 142 Fed. App’x 527, 529 (2d Cir. 2005) (noting that

“asthma does not invariably impair a major life activity”)). See

also id. (quoting Hendler v. Intelecom USA, Inc., 963 F. Supp.

200, 207 (E.D.N.Y. 1997) (“Because one plaintiff with asthma is

substantially limited in the major life activity of breathing

does not mean that every plaintiff with asthma has a qualifying

disability under the ADA.”)).

Reale has merely offered evidence that he suffers from

sinus and chest congestion, which in February 2018 and in

January 2020 resulted in him seeing a doctor because the

condition had persisted for one or two weeks. He also has

produced evidence that he has associated allergies, which can

result in asthma, and that prior to 2018 he used an over-the-

counter inhaler. While the parties disagree about whether Reale

at any time used an inhaler for which a prescription was

required, that is not a material issue because any such use at

some unspecified time prior to 2019 does not create a genuine

issue as to his condition in September 2021 in light of the more

recent medical records. Reale provides no evidence that either

of his conditions has ever limited his breathing to any

significant degree. The only medical records show that, upon

examination, his respiratory functions were found to be normal--

so much so that for exercise, he tries to take walks. While

Reale gets uncomfortable and feels that it is hard to breathe if

he wears a facemask or face shield, that discomfort was not so

great that he was deterred from walking four laps around a

track, wearing an N95 mask in or around May 2020.

Thus, Reale has failed to put forth evidence that could

show that he has a condition that is severe, or even a condition

that has had a permanent or long-term impact on him; nor any

evidence that he has had episodes requiring medical intervention

or that he has had chronic breathing problems, such as the

evidence in Shine with respect to Shine’s son. Rather, the

evidence offered by Reale shows only that his conditions have

resulted in mild limitations, i.e. at most, infrequent breathing

problems. Thus Reale’s claim is comparable to that of the mother

in Shine and the plaintiff in Johnson, as opposed to the claim

with respect to Shine’s son.

2. Record of Such an Impairment

Reale has failed to offer evidence that creates a genuine

issue as to whether he has “a record of such an impairment.”

“[T]he Second Circuit has held that to form the basis for an ADA

claim, the ‘record of’ disability ‘must be one that shows an

impairment that satisfies the ADA.’” Williams-Moore v. Quick

Int’l Courier, LLC, No. 22-CV-3592 (RPK) (RML), 2023 WL 6292540,

at *4 (E.D.N.Y. Sept. 26, 2023) (quoting Colwell v. Suffolk

Cnty. Police Dep’t, 158 F.3d 635, 645 (2d Cir. 1998)). “[A]

record reflecting a plaintiff’s classification as disabled for

other purposes or under other standards is not enough.” Niles v.

New York City Hum. Res. Admin., No. 22-CV-6307 (AMD) (JAM), 2024

WL 496346, at *5 (E.D.N.Y. Feb. 8, 2024) (quoting Colwell, 158

F.3d at 645). Reale has offered no records of a physical or

mental impairment that substantially limits a major life

activity, nor has he presented any other evidence from which a

legitimate inference can be drawn that he has a record of such

an impairment.

3. Regarded as Having Such an Impairment

Reale has failed to offer evidence that creates a genuine

issue as to whether he was ever “regarded as having such an

impairment” under 42 U.S.C. § 12102(1)(C). “[T]he plaintiff must

show that the [defendant] regarded [him] as . . . having an

impairment that substantially limited a major life activity.”

Ragusa v. Malverne Union Free Sch. Dist., 381 F. App’x 85, 88

(2d Cir. 2010) (quoting Colwell, 158 F.3d at 646); accord

Whitehead v. United Parcel Serv., Inc., 387 F. App’x 16, 18 (2d

Cir. 2010) (quoting Murphy v. United Parcel Serv., Inc., 527

U.S. 516, 521–22 (1999)). Reale has offered no evidence that any

defendant ever regarded him as having a physical or mental

impairment of any kind, much less one that substantially limits

a major life activity.

B. Count Two: First Amendment Claim by Reale

Reale claims that Haskell, Sugarman, and the Board violated

his rights under the First Amendment when they refused to let

him speak in-person without a facemask during the September 8,

2021 Board meeting. He argues that “under color of law, custom

and usage per 42 U.S.C. § 1983, the facts set forth clearly in

the Record demonstrate that Plaintiff Reale’s rights to be

present in person, to be not challenged as to his right to

comment per the Board of Ed’s own comment policy and that the

Plaintiff be allowed to publicly comment were violated.” Pls.’

Obj., at 11. The defendants maintain that they did not violate

the plaintiff’s First Amendment rights by enforcing the state

mask mandate in accordance with the Board’s facemask policy. The

court agrees.7

In their memorandum of law, the defendants maintain that

the test that is applicable to Reale’s First Amendment claim, as

opposed to Irizarry’s First Amendment claim, is that used in

Jacobson v. Massachusetts, 197 U.S. 11 (1905). That proposition

has been called into question by the Supreme Court’s decision in

Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020).

But Jacobson has not been overruled, nor does the per curiam

7 Because the facemask policy did not violate the First Amendment, the court

need not undertake a qualified immunity analysis as to defendants Haskell and

Sugarman in their individual capacities. See Pearson v. Callahan, 555 U.S.

223, 236 (2009) (“The judges of the district courts and the courts of appeals

should be permitted to exercise their sound discretion in deciding which of

the two prongs of the qualified immunity analysis should be addressed first

in light of the circumstances in the particular case at hand.”). Similarly,

the court need not analyze whether the policy was a municipal or state policy

for purposes of a Monell claim against the Board, because the policy was

constitutional.

opinion Roman Catholic Diocese state what limitations there are

with respect to its applicability. Thus, a number of courts have

concluded that it is unclear whether the traditional First

Amendment analysis should be used for a claim such as Reale’s

claim in this count, as opposed to the test in Jacobson.8

8 In Jones v. Cuomo, the court explained:

[I]n a per curiam opinion in Roman Catholic Diocese, the Supreme

Court temporarily enjoined the enforcement of a New York

executive order that placed restrictions on in-person religious

services. 141 S. Ct. at 63. In reaching this determination, the

Court undertook a traditional constitutional analysis of

Plaintiffs’ First Amendment free exercise claims, and found that

the executive order was unable to withstand strict scrutiny. Id.

at 66-68. Any discussion of or reference to the Jacobson standard

is notably absent from the Court’s decision. Instead, in a

concurring opinion, Justice Gorsuch indicated that the “usual

constitutional standards should apply during the current

pandemic.” Id. at 71 (Gorsuch, J., concurring). Referring

specifically to Jacobson, Justice Gorsuch characterized the case

as a “modest decision” that has been “mistaken . . . for a

towering authority that overshadows the Constitution[.]” Id.

Justice Gorsuch emphasized that Jacobson “involved an entirely

different mode of analysis, an entirely different right, and an

entirely different kind of restriction.” Id. at 70.

On remand, the Second Circuit determined that the parties’

and lower courts’ reliance on Jacobson “as support for the notion

that courts should defer to the executive in the face of the

COVID-19 pandemic” “was misplaced.” Agudath Israel of Am., 983

F.3d at 635. The Court observed that Jacobson “predated” the

“tiers of scrutiny,” “was decided before the First Amendment was

incorporated against the states, and ‘did not address the free

exercise of religion.’” Id. (quoting Phillips v. City of New

York, 775 F.3d 538, 543 (2d Cir. 2015)).

In the wake of the Roman Catholic Diocese decision, some

courts’ confidence in Jacobson has similarly waned. See, e.g.,

Amato, 2021 WL 1430918, at *7 & n.11 (applying traditional tiers

of scrutiny to COVID-19 restrictions); Plaza Motors of Brooklyn

v. Cuomo, No. 20 Civ. 4851 (WFK) (SJB), 2021 WL 222121, at *4-5

(E.D.N.Y. Jan. 22, 2021) (declining to apply Jacobson to

challenge of the same executive order at issue in Roman Catholic

Diocese). However, other courts in this Circuit have cabined the

Roman Catholic Diocese decision to First Amendment free exercise

challenges, and have continued to apply Jacobson to other

challenges to COVID-19 restrictions. See Hopkins Hawley LLC v.

Cuomo, No. 20 Civ. 10932 (PAC), 518 F.Supp.3d 705, 712–13,

(S.D.N.Y. Feb. 9, 2021) (“Although Roman Catholic Diocese and

Consequently, this court has analyzed Reale’s First Amendment

claim under both the traditional First Amendment analysis and

under the Jacobson test. Having done so, the court concludes

that the defendants are entitled to summary judgment regardless

of whether the traditional First Amendment analysis is used or

the test in Jacobson is used.

Accordingly, the defendants’ motion for summary judgment is

Agudath Israel raise doubts as to Jacobson’s continuing

viability, Jacobson bears directly on this case and has not been

explicitly overruled, which means that this Court is bound by

it.”); see also Our Wicked Lady, 2021 WL 915033, at *3; Moxie

Owl, Inc. v. Cuomo, No. 21 Civ. 194 (MAD) (DJS), 527 F.Supp.3d

196, 201 n.1 (N.D.N.Y. Mar. 18, 2021). And a number of courts in

other circuits have taken similar approaches. See, e.g., Big Tyme

Inv., L.L.C. v. Edwards, 985 F.3d 456, 470-71 (5th Cir. 2021)

(holding that Jacobson “govern[s] our review of emergency public

health measures, regardless of the rights at stake.”); Stewart v.

Justice, No. 20 Civ. 611 (RCC), 518 F.Supp.3d 911, 917, (S.D.W.

Va. Feb. 9, 2021) (“[T]he Court declines to read the tea leaves

of Roman Catholic Diocese and will follow the [Jacobson] rule

adopted by a majority of courts.”); M. Rae, Inc. v. Wolf, No. 20

Civ. 2366 (CCC), 509 F.Supp.3d 235, 246, (M.D. Pa. Dec. 23, 2020)

(“The bottom line for our purposes is that Jacobson is

controlling precedent until the Supreme Court or Third Circuit

Court of Appeals tell us otherwise.”).

More recently, a sister court in this District held that

Jacobson remained applicable on stare decisis grounds, reasoning

that if a Supreme Court decision “‘has direct application in a

case, yet appears to rest on reasons rejected in some other line

of decisions, the [lower court] should follow the case which

directly controls, leaving to [the Supreme] Court the prerogative

of overruling its own decisions.’” Hopkins Hawley LLC, 2021 WL

1894277, at *5 n.4 (quoting Rodriguez de Quijas v. Shearson/Am.

Exp., Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526

(1989)). The Court finds this reasoning persuasive. That said, in

an abundance of caution, the Court will assess the Executive

Order and Plaintiff's claims thereto under both Jacobson and the

traditional tiers of scrutiny.

542 F. Supp. 3d 207, 217–19 (S.D.N.Y. 2021) (footnote omitted) (alterations

in original). See also Amato v. Elicker, 534 F. Supp. 3d 196, 210 n.11 (D.

Conn. 2021) (“However, in view of the uncertainty created by Roman Catholic

Diocese of Brooklyn, this Court applies . . . the traditional tiers of

scrutiny.”).

being granted as to Count Two.

1. Traditional First Amendment Analysis

The First Amendment standards applicable to the Board

meeting, which took place at a public school, depend on what

type of forum it was. “We analyze speech restrictions on

publicly owned property according to a forum-based approach.

Under this approach, ‘[f]ora for expression are classified into

four categories, which fall along a spectrum extending from

those deserving the greatest constitutional protection to those

deserving the least constitutional protection: (1) the

traditional public forum; (2) the designated public forum; (3)

the limited public forum; and (4) the non-public forum.’” Tyler

v. City of Kingston, 74 F.4th 57, 61 (2d Cir. 2023) (quoting

R.O. ex rel. Ochshorn v. Ithaca City Sch. Dist., 645 F.3d 533,

539 (2d Cir. 2011)) (citing Cornelius v. NAACP Legal Def. &

Educ. Fund, Inc., 473 U.S. 788, 797, 799–800 (1985)).

The third of these options, “the ‘limited’ public forum,

exists ‘where the government opens a non-public forum but limits

the expressive activity to certain kinds of speakers or to the

discussion of certain subjects.’” Hotel Emps. & Rest. Emps.

Union, Loc. 100 of New York, N.Y. & Vicinity, AFL CIO v. City of

N.Y. Dep’t of Parks & Rec., 311 F.3d 534, 545 (2d Cir. 2002)

(quoting N.Y. Magazine v. Met. Transp. Auth., 136 F.3d 123, 128

n.2 (2d Cir. 1998)). “Examples of limited public fora include

. . . open school board meetings . . . .” Id. (citing City of

Madison Joint Sch. Dist. No. 8 v. Wis. Emp. Rels. Comm’n, 429

U.S. 167, 174–76 (1976)). See also Potanovic v. Town of Stony

Point, No. 23-204-cv, 2024 WL 3159221, at *1 (2d Cir. June 25,

2024) (“[T]he public input component of the Town Board meetings

is clearly a limited public forum.” (citing Tyler, 74 F.4th at

61)); Jones v. Bay Shore Union Free Sch. Dist., 947 F. Supp. 2d

270, 278 (E.D.N.Y. 2013) (“Typically, school board meetings are

limited public fora.”).

“[I]n limited public fora such as city council meetings,

government entities are permitted to restrict the form or manner

of speech offered by members of the public, even if such speech

addresses the topic or agenda of that forum. Such restrictions

on the form of speech are not subject to strict scrutiny; courts

need only assess whether the restrictions are reasonable and

viewpoint neutral.” Tyler, 74 F.4th at 63. “[F]or those who seek

to speak on a topic or in a manner not contemplated by the

public entity in opening the limited public forum[,] there is no

fundamental right of freedom of speech.” The Good News Club v.

Milford Cent. Sch., 202 F.3d 502, 510 (2d Cir. 2000) (internal

quotation marks omitted), rev’d on other grounds sub nom. Good

News Club v. Milford Cent. Sch., 533 U.S. 98 (2001).

a. Reasonableness

“In a limited public forum, the reasonableness analysis

turns on the particular purpose and characteristics of the forum

and the extent to which the restrictions on speech are

‘reasonably related’ to maintaining the environment the

government intended to create in that forum.” Tyler, 74 F.4th at

63 (quoting Hotel Emps., 311 F.3d at 554 (internal quotation

marks omitted)). “‘[T]o survive First Amendment scrutiny[,] the

restriction need not be the most reasonable or the only

reasonable limitation imaginable,’ . . . but simply ‘consistent

with the government’s legitimate interest in preserving the

property for the use to which it is lawfully dedicated[.]’” Id.

(alterations in original) (quoting Byrne v. Rutledge, 623 F.3d

46, 59 (2d Cir. 2010); Hotel Emps., 311 F.3d at 554).

“Significantly, the existence of ‘alternative channels’ of

communication is a relevant factor in assessing the

reasonableness of a restriction on speech in a limited public

forum.” Id. (quoting Perry Educ. Ass’n v. Perry Loc. Educators’

Ass’n, 460 U.S. 37, 53 (1983)).

There is no genuine issue of material fact as to whether

the Board’s facemask policy was reasonable because it was

consistent with a legitimate interest of the Board.

As to the Board’s legitimate interest, the facemask policy

begins by incorporating by reference Executive Order 13A.

Executive Order 13A is titled Protection of Public Health and

Safety During COVID-19 Pandemic – Revised Order for Masks and

Face Coverings, Nursing Home Staff Testing. There is no genuine

issue as to the fact that protection of public health and safety

during the COVID-19 pandemic is a legitimate governmental

interest. In Roman Catholic Diocese of Brooklyn v. Cuomo, the

Court stated that “[s]temming the spread of COVID-19 is

unquestionably a compelling interest.” 592 U.S. at 18. In

Stewart v. Justice, the court held that “[s]lowing the spread of

a novel virus that has already killed over 250,000 Americans is

a compelling, and at least significant, government interest”

supporting an executive order “requiring individuals to wear

masks indoors.” 502 F. Supp. 3d 1057, 1066 (S.D.W. Va. 2020)

(citations omitted). Also, in Murray-Nolan v. Rubin the court

held that a local school board in New Jersey had “substantial

and related underlying governmental interests” in the

“continuation of in-person proceedings while preventing of the

spread of COVID.” No. CV 22-801 (EP) (AME), 2022 WL 4104343, at

*9 (D.N.J. Sept. 8, 2022), aff’d sub nom. Falcone v. Dickstein,

92 F.4th 193 (3d Cir. 2024), cert. denied sub. nom. Murray-Nolan

v. Rubin, 144 S. Ct. 2560 (2024). See also Oakes v. Collier

County, 515 F. Supp. 3d 1202, 1216 (M.D. Fla. 2021) (citing

Roman Cath. Diocese, 592 U.S. at 18) (evaluating a facemask

requirement).

Nor is there any genuine issue as to whether the Board’s

facemask policy was consistent with the legitimate governmental

interest in protecting public health and safety during the

COVID-19 pandemic. As set forth in Executive Order 13A, the

Governor of Connecticut “issued various executive orders to

protect public health, limit transmission of COVID-19, and

mitigate the effects of the COVID-19 pandemic.” DSF Ex. 8, at 2.

The Governor explained that “the COVID-19 pandemic remains a

grave threat to public health and safety and civil preparedness

in the State of Connecticut,” id., in part because “according to

the CDC, as a result of increased infection rates and the higher

transmissibility of the Delta variant, all eight of

Connecticut’s counties are considered areas of substantial

transmission,” id. at 4. The Governor concluded that, because

“breakthrough infection and transmission among vaccinated people

are possible,” id., “in certain indoor settings where the risk

of COVID-19 infection is higher because of the concentration of

large numbers of people, the presence of people with underlying

conditions or compromised immune systems, the difficulty of

ascertaining who has been vaccinated may require the universal

wearing of masks and face coverings,” id. at 3. In Oakes the

court held that a similar mask requirement “promotes the

[government]’s interest more effectively than no requirement”

and “is not substantially broader than necessary . . . to

prevent the spread of COVID-19 . . . . In other words, it is

narrowly tailored.” 515 F. Supp. 3d at 1216.

Underscoring the reasonableness of the Board’s facemask

policy is the fact that an exemption was provided for people who

did not want to wear a facemask because of a medical condition,

behavioral condition, or disability, so long as they provided

written documentation from an appropriate source that they

qualified for the exemption, which documentation did not have to

name or describe the condition that qualified the person for the

exemption. Further underscoring the reasonableness of the policy

is the fact that it provided alternative means for participation

in the Board’s meetings. See Tyler, 74 F.4th at 63 (quoting

Perry, 460 U.S. at 53). Online participants were not required to

give any justification for their remote attendance, nor did they

have to wear a facemask. This policy was published on the

Board’s website, and it was attached to each meeting agenda.

Reale argues that the Board’s policy was not reasonable

because he could have socially distanced himself from other

attendees, see Pls.’ Obj., at 7, 11, and he states that he took

“measurements using a measuring tape” to demonstrate how much

space he had, Reale Aff. ¶ 2. But given that a time, place, and

manner restriction in a limited public forum does not have to be

“the most reasonable or the only reasonable limitation

imaginable,” Tyler, 74 F.4th at 63 (quoting Byrne, 623 F.3d at

59), Reale’s evidence as to what he maintains is a more

reasonable restriction does not create a genuine issue of

material fact.

b. Viewpoint Neutrality

There is no genuine issue of material fact as to whether

the Board’s facemask policy was viewpoint neutral. There is no

language in the policy that can be read as suggesting viewpoint

discrimination. The policy contains a blanket requirement that

individuals wear a medical mask unless they provide

documentation that they are exempt, and in Falcone, the court

held that disobeying a mask requirement is not a

constitutionally recognized form of expression:

Unlike burning a flag, wearing a medical mask--or

refusing to do so--is not the type of thing someone

typically does as “a form of symbolism.” [Spence v.

Washington, 418 U.S. 405, 410 (1974)]. The American

flag is inherently symbolic. See [Texas v. Johnson,

491 U.S. 397, 405 (1989)]. A medical mask is not. It

is a safety device--“protective equipment” used “to

protect the wearer from particles or from liquid

contaminating the face.” N95 Respirators, Surgical

Masks, Face Masks, and Barrier Face Coverings, FDA

(Mar. 10, 2023), https://perma.cc/E8FM-2M2K. To combat

COVID-19, people wear it to curb the spread of an

airborne disease. Skeptics are free to--and did--voice

their opposition through multiple means, but

disobeying a masking requirement is not one of them.

One could not, for example, refuse to pay taxes to

express the belief that “taxes are theft.” Nor could

one refuse to wear a motorcycle helmet as a symbolic

protest against a state law requiring them. The binary

choice envisioned by [the appellant]--either

disobeying the Executive Order mandating the wearing

of a protective mask or not speaking at all--is a

false one. See Appellant Br. 30-31. We thus agree with

the District Court that her refusal to wear a mask was

not constitutionally protected.

Falcone, 92 F.4th at 207–08, cert. denied sub nom. Murray-Nolan

v. Rubin, 144 S. Ct. 2560 (2024). “Every court to address the

issue has reached the same conclusion.” Id. at 208 n.10

(collecting cases).

Reale contends that the Board’s facemask policy had a

disparate impact on individuals who, like him, seek to “voice

[his] opinions on public policy in person [against] those

supporting continued mask mandates.” Reale Aff. ¶ 17. See also

Pls.’ Sur-Reply (ECF No. 194), at 3 (arguing that the net effect

of the defendants’ actions was to “suppress public participation

based on the known and anticipated content of public speech”).

However, even assuming that a facemask requirement could have a

disparate impact on individuals like Reale,

viewpoint disparity, standing alone, does not

constitute proof of viewpoint discrimination. See

R.A.V. v. City of St. Paul, 505 U.S. 377, 385, 112

S.Ct. 2538, 120 L.Ed.2d 305 (1992) (“We have long

held, for example, that nonverbal expressive activity

can be banned because of the action it entails, but

not because of the ideas it expresses—so that burning

a flag in violation of an ordinance against outdoor

fires could be punishable, whereas burning a flag in

violation of an ordinance against dishonoring the flag

is not.” (citing cases)); Madsen v. Women’s Health

Ctr., 512 U.S. 753, 763, 114 S.Ct. 2516, 129 L.Ed.2d

593 (1994) (“[T]he fact that the injunction covered

people with a particular viewpoint does not itself

render the injunction content or viewpoint based.”)

. . . .

Where a law is on its face viewpoint neutral

(e.g., when it applies to conduct that is not

primarily expressive) but has a differential impact

among viewpoints, the inquiry into whether the law is

in fact viewpoint discriminatory turns on the law’s

purpose. Such a law is viewpoint discriminatory only

if its purpose is to impose a differential adverse

impact upon a viewpoint. See R.A.V., 505 U.S. at 390,

112 S.Ct. 2538 (“Where the government does not target

conduct on the basis of its expressive content, acts

are not shielded from regulation merely because they

express a discriminatory idea or philosophy.”

(emphasis added)); Madsen, 512 U.S. at 762–63, 114

S.Ct. 2516 (holding that an injunction against anti-

abortion protesters was not viewpoint discriminatory

because “none of the restrictions imposed by the court

were directed at the contents of petitioner’s

message.” (emphasis added)); id. at 763, 114 S.Ct.

2516 (“We thus look to the government’s purpose as the

threshold consideration.” (emphasis added)).

Boy Scouts of Am. v. Wyman, 335 F.3d 80, 93–94 (2d Cir. 2003).

There is no genuine issue as to the fact that the facemask

requirement was not enacted for the purpose of viewpoint

discrimination.

2. Jacobson v. Massachusetts

Under Jacobson, courts are required “to uphold governmental

measures to protect public health unless they bear ‘no real or

substantial relation to’ the object of public health or are

‘beyond all question, a plain, palpable invasion of rights

secured by the fundamental law.’” Clementine Co., LLC v. Adams,

74 F.4th 77, 84 (2d Cir. 2023) (quoting Jacobson, 197 U.S. at

27).

The Board’s facemask policy satisfies the deferential

standard of review under Jacobson. For the reasons discussed in

Part III.B.1, the Board’s facemask policy has, at minimum, a

real or substantial relation to public health. Protecting public

health during the COVID-19 pandemic was a legitimate

governmental interest, and the Board’s facemask policy was

consistent with that governmental interest. In addition, for the

reasons also discussed there, the facemask requirement is not a

plain, palpable invasion of rights. The Board’s facemask policy

was both reasonable and viewpoint neutral under the traditional

First Amendment test.

Reale argues that this case is distinguishable from

Jacobson because the defendants violated state law, whereas in

Jacobson “the Commonwealth followed the law.” Pls.’ Obj., at 11.

As discussed below in Part III.B.3, these purported state law

violations do not establish a First Amendment violation.

3. Conn. Gen. Stat. § 1-225; Executive Order 12A

Reale contends that the defendants’ actions violated a

Connecticut public meeting law, Connecticut General Statutes

§ 1-225. See Pls.’ Obj., at 14 (“That evidence . . . evinces an

overtly manifested intent to not even honor any exemptions . . .

by purposefully excluding and screening those to whom the

exemptions are owed in attending public meetings as contemplated

by General Statutes §1-225.”); Pls.’ Sur-Reply, at 15 (“[The

defendants] purposefully exclude[ed] and screen[ed] those to

whom the exemptions are owed in attending public meetings as

contemplated by General Statutes §1-225.”). It may be that Reale

is merely arguing that the alleged violation of Connecticut

General Statutes § 1-225 is evidence of the defendants’ intent.

But to the extent he contends that any such violation of the

Connecticut statute violated his rights under the First

Amendment, that argument is unavailing because the “[m]ere

violation of a state statute does not infringe the federal

Constitution.” Snowden v. Hughes, 321 U.S. 1, 11 (1944). See

also Bey v. Wall, No. 18-CV-299, 2018 WL 2860115, at *1 (E.D.

Wis. June 8, 2018) (“The alleged misconduct must itself violate

the Constitution, regardless of whether it violates state laws

or regulations.”).

In addition, Reale emphasizes the fact that, in response to

interrogatories served by him, Sugarman, Paul Brenton, and

Haskell stated that they were enforcing Executive Order 12A at

the time of the September 8, 2021 Board meeting. Specifically,

with respect to Haskell, Interrogatory Number Five reads, “What

specific Executive Orders or other orders were the Defendants

enforcing relative to mask wearing as of the September, October

and November 2021 Board of Education meetings?” Pl. Reale’s

Supp. Aff. in Opp. to Summ. J. (ECF No. 194-2) (“Reale Supp.

Aff.”), at 45 (Attachment 2). The response was, “Executive Order

12A.” Id. See also PSF Ex. 2 (ECF No. 177-5), at 25 (the same

interrogatory and response with respect to Sugarman); id. Ex. 10

(ECF No. 177-13), at 23 (the same interrogatory and response

with respect to Paul Brenton). Based on those interrogatory

responses, Reale argues that his right “to publicly comment

w[as] violated,” Pls.’ Obj., at 11, and “[t]his was within an

environment that provided many multiples of the social

distancing that the then already long expired Executive Order

12A provided for.” Id. See also Pls.’ Sur-Reply, at 15.

Reale is correct that Executive Order 12A states that

“[e]ffective immediately, any person while indoors in a public

place who does not maintain a safe social distance of

approximately six feet from every other person and who is not

fully vaccinated for COVID-19 shall cover their mouth and nose

with a mask or cloth face covering.” DSF Ex. 5 (ECF No. 167-7),

at 4. Reale is also correct that at the time of the Board

meeting on September 8, 2021, Executive Order 12A had been

repealed. Executive Order 13A, which is dated August 5, 2021,

states, “Executive Order No. 12A is repealed.” See DSF Ex. 8, at

4.

But Reale’s argument does not take into account the

provisions of Executive Order 13A and the rule issued by the

Commissioner of Public Health. Like Executive Order 12A,

Executive Order 13A states that “[a] person while indoors in a

public place who does not maintain a safe social distance of

approximately six feet from every other person and who is not

fully vaccinated for COVID-19 shall cover their mouth and nose

with a mask or cloth face covering.” Id. But Executive Order 13A

then goes on to state, “[t]he Commissioner of Public Health

shall issue a rule setting forth a comprehensive list of

facilities, venues, and other locations where masks and cloth

face coverings are required, including for people who are

vaccinated, and will amend said rule as the Commissioner

determines is warranted by public health conditions.” Id. at 5.

The Commissioner of Public Health issued such a rule on August

7, 2021, and that rule stated that “[s]ubject to the exemption

provided in Executive Order No. 13A, all individuals, regardless

of vaccination status, shall wear a face-covering mask at all

times when: 1. Inside PreK-12 public or non-public (e.g.,

“private”, “independent”, “boarding”, etc.) school buildings,

excluding residential dormitories, when students are present

. . . .” Defs.’ Supp. Ex. 18, at 1. Students were present in the

auditorium for the entire September 8, 2021 Board meeting. Thus,

Reale’s contentions based on the responses by Haskell, Sugarman,

and Brenton to Interrogatory Number Five fail to create a

genuine issue of material fact.

C. Count Three: First Amendment Claim by Irizarry

Irizarry claims that Sugarman and the Board violated her

First Amendment rights when they asked her to relocate while she

was protesting coronavirus-related policies on a public sidewalk

that bordered the grounds of the Middle School. The defendants

maintain that there is no genuine issue as to the fact that the

burden they imposed was content-neutral, narrowly-tailored, and

left Irizarry with an ample alternative channel of

communication. The court agrees.9 Therefore, the defendants’

motion for summary judgment is being granted as to Count Three.

The same forum analysis that was applied in Part III.B.1 to

Reale’s First Amendment claim is applicable here. See Tyler, 74

F.4th at 61 (The four categories of fora are: “(1) the

traditional public forum; (2) the designated public forum; (3)

the limited public forum; and (4) the non-public forum.”).

“Sidewalks, of course, are among those areas of public

property that traditionally have been held open to the public

for expressive activities . . . .” Marcavage v. City of New

York, 689 F.3d 98, 104 (2d Cir. 2012) (quoting United States v.

Grace, 461 U.S. 171, 179 (1983)) (citing Frisby v. Schultz, 487

U.S. 474, 480 (1988)). “Traditional public fora, such as

sidewalks and parks, are afforded the broadest protections for

free expression.” Kass v. City of New York, 864 F.3d 200, 208

(2d Cir. 2017) (citing Zalaski v. City of Bridgeport Police

Dep’t, 613 F.3d 336, 341 (2d Cir. 2010) (per curiam); McCullen

v. Coakley, 573 U.S. 464, 488 (2014)). Thus, the location where

Irizarry was protesting is a traditional public forum, the most

protected of these fora.

9 As with Count Two, because the defendants did not violate the First

Amendment, the court need not undertake a qualified immunity analysis with

respect to defendant Sugarman in his individual capacity. See supra note 7.

“Speech finds its greatest protection in traditional public

fora,” Marcavage, 689 F.3d at 104 (quoting Make the Rd. by

Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir. 2004)),

“though even there the right is ‘not absolute,’” id.

(quoting United for Peace & Justice v. City of New York, 323

F.3d 175, 176 (2d Cir. 2003) (per curiam)). “In [traditional]

public fora, the government may apply content-neutral time,

place, and manner restrictions only if they are ‘narrowly

tailored to serve a significant government interest’ and if

‘ample alternative channels of communication’ are available.”

Kass, 864 F.3d at 208 (quoting Zalaski, 613 F.3d at 341).

There is no genuine issue as to the fact that the

restriction applied to Irrizarry was content-neutral. The only

evidence is that the sole reason Sugarman asked Irizarry and the

other two protesters to relocate themselves is that they had

located themselves in an area commonly used, and actually being

used at that time, by parents to drop off their children at

school, and as a consequence were obstructing parents from

dropping off their children at school.

“A regulation is narrowly tailored ‘so long as [it] . . .

promotes a substantial government interest that would be

achieved less effectively absent the regulation,’ and is ‘not

substantially broader than necessary to achieve the government’s

interest.’” Marcavage, 689 F.3d at 106 (internal quotation marks

omitted) (quoting Ward, 491 U.S. at 799–800). “[B]ut ‘narrowly

tailored’ does not mean the ‘least restrictive or least

intrusive means.’” Id. (quoting Ward, 491 U.S. at 798).

“[R]estrictions on the time, place, or manner of protected

speech are not invalid simply because there is some imaginable

alternative that might be less burdensome on speech.” Id.

(quoting Ward, 491 U.S. at 797).

There is no genuine issue as to the fact that Sugarman’s

request to the protesters to relocate promoted a substantial

governmental interest that could not have been achieved

otherwise. Irizarry was located where parents were dropping off

children at that time. She was in an area commonly used by

parents to drop off their children, and it would have been

unworkable to change the drop-off zone to accommodate Irizarry.

Also, Ryan’s truck was parked in a manner that impeded the flow

of traffic and obstructed the buses and cars from entering the

school grounds. Thus, Sugarman’s request that the protesters

relocate furthered the government’s interest in public safety

and in reducing congestion in the area because the protesters

were obstructing parents from dropping off their children for

school. These are substantial governmental interests. See

Madsen, 512 U.S. at 768 (“The [government] also has a strong

interest in ensuring the public safety and order, [and] in

promoting the free flow of traffic on public streets and

sidewalks . . . .”); Marcavage, 689 F.3d at 104 (“Government

‘certainly has a significant interest in keeping its public

spaces safe and free of congestion.’” (quoting Bery v. City of

New York, 97 F.3d 689, 697 (2d Cir. 1996))). Sugarman’s request

was narrowly tailored because he merely asked the protesters to

move to a different part of the sidewalk on the other side of

the exit from the Middle School grounds or, in the alternative,

to the other side of the entrance to the Middle School grounds

where there was no sidewalk, i.e. from one part of a traditional

public forum to another part of it.

“Although an alternative channel for communication must be

available, it is clear that ‘[t]he First Amendment . . . does

not guarantee [protesters] access to every or even the best

channels or locations for their expression.’” Marcavage, 689

F.3d at 107 (alterations in original) (quoting Carew–Reid v.

Metro. Transp. Auth., 903 F.2d 914, 919 (2d Cir. 1990)). “The

requirement that ‘ample alternative channels’ exist does not

imply that alternative channels must be perfect substitutes for

those channels denied to plaintiffs by the regulation at hand;

indeed, were we to interpret the requirement in this way, no

alternative channels could ever be deemed ‘ample.’” Id. (quoting

Mastrovincenzo v. City of New York, 435 F.3d 78, 101 (2d Cir.

2006)) (citing Irish Lesbian & Gay Org. v. Giuliani, 918 F.

Supp. 732, 744 (S.D.N.Y. 1996) (“Whether ample alternatives are

available does not depend on the preference of the speaker for

one method or another.”)). “All that is required is that an

alternative channel be ample--i.e., an ‘adequate’ channel for

communication.” Id. (quoting Deegan, 444 F.3d 135, 144 (2d Cir.

2006)). “In this Circuit, an alternative channel is adequate and

therefore ample if it is within ‘close proximity’ to the

intended audience.” Id. (quoting United for Peace & Justice, 323

F.3d at 177) (citing Concerned Jewish Youth v. McGuire, 621 F.2d

471, 472–74, 476–77 (2d Cir. 1980)).

Sugarman’s request also provided for ample alternative

channels of communication. One of the alternative locations he

suggested was just on the other side of where buses and other

vehicles entered the Middle School grounds from Canterbury Road.

The other location he suggested was on a sidewalk, right next to

where buses and other vehicles exited the Middle School grounds

onto Canterbury Road. Both these alternatives left Irizarry in

close proximity to her intended audience, even if neither was

her preferred location.

The court notes that there also is no genuine issue as to

whether Sugarman’s request burdened more speech than necessary

because he only asked the protesters to move from one location

adjacent to the school grounds to another adjacent location. So

even if the fact that Sugarman gave an on-the-spot directive

merits a higher level of scrutiny than that in Marcavage, 689

F.3d at 106, that standard is met here. See Case v. City of New

York, 233 F. Supp. 3d 372, 392–93 (S.D.N.Y. 2017) (citing

McTernan v. City of New York, 564 F.3d 636, 655–56 (3d Cir.

2009)). Moreover, Irizarry has never asserted that her speech

was burdened at all.

IV. CONCLUSION

For the reasons set forth above, the defendants’ Motion for

Summary Judgment (ECF No. 167) is hereby GRANTED.

The Clerk shall enter judgment in favor of the defendants

and close this case.

It is so ordered.

Dated this 31st day of March 2025, at Hartford,

Connecticut.

/s/AWT

Alvin W. Thompson

United States District Judge