Petition for Writ of Certiorari — Dyno v. SUNY Binghamton

\

Supreme Court, U.S.

FILED

091200 HAR 31 2010

Docket #

OFFICE OF THE CLERK

Supreme Court of the United

States

Thomas Lamont Dyno

Petitioner

U.

SUNY Binghamton &

WHRW FM Radio

Respondents

On Petition for Writ of Certiorari to

The United States Court of Appeals

For the Second Circuit

Petition for Writ of Certiorar}1

Thomas Lamont Dyno

46 Academy Street

Johnson City, New York 13790

(607) 729-4039

2.

Questions

May this Court, by my original complaint, my

proposed amendment of course, by rule under

28 USC 2111 or otherwise, have jurisdiction

over the University, it’s President acting in her

official capacity, the station or it’s General

Manager (GM) to answer the following:

Are the airwaves licensed to the University and

open to the Public a designated public forum?

Is the University radio station public

broadcasting policy banning indecent and

profane speech 24 hrs a day constitutional?

If said broadcast policy is unconstitutional may

a Federal Court declare it as such and ban

enforcement inside the FCC safe harbor zone?

Does extension of US Const. 11th Amendment

immunity barring §19838 relief or relief under

Ex Parte Young doctrine, violate the Strict

Construction Doctrine?

Because the University and President are

expressly responsible under NYS regulation to

ensure broadcast policy propriety may either be

held lable for knowingly allowing an

unconstitutional policy to continue?

Is the GM in conferring suspending and

revoking broadcast privileges under University

license action under color of law?

If I must amend may it relate back without

new process or may I commence a new action?

Is 2d Cir dismissal constitutional or improper?

CONTENTS

Questions

Authorities

Decisions and Orders

Jurisdictional Statement

Constitution and law

Statement of the Case

Reasons for Granting the Petition

l) THE US CONST 11% A. CAPTION ISSUE

OUGHT TO BE DEALT WitH AND SETTLED

BY THIS COURT UNDER 28 USC 2111

HARMLESS ERROR. 8-12

It) DISMISSAL IS IN CONFLICT WITH RELEVANT

DECISIONS OF THIS COURT ON AN

IMPROPERLY STATED RULE OF LAW 12-20

Ii) THE 2D CIRCUIT PRE-BRIEFING DISMISSAL

IS_ A DEPARTURE FROM THE ACCEPTED

AND USUAL COURSE OF JUDICIAL

PROCEEDINGS 20-23

Conclusion 23-25

APPENDIX CONTENTS

NDNY Order on Entry of Station Default ... Al

Order in re TRO and Preliminary Relief A2-A6

Judgment & Dismissal Decision

Disposition of FRCP 60(b) motion

2d Circuit Pre Briefing Dismissal

2d Circuit denial of Reconsideration ............. AA]

COVEMIUDORE CURR INE ski sds casiscinccssctraeeteie A42-A51

I NO 5s chk ce haicd ciiaapaseias sani ese veneaees A5d2

Proposed Amendment of Course ................+- A53-A67

PENN GANS bsyocscsssssseaasus eerie neat A68

1 10/3/05 My letter to SUNY Bing

on broadcast policy A69-A78

2 10/27/05 University President’s response A79

3 1/2006 FCC notice license renewal A80-81

4 3/9/06 Station Warning A82

5 3/18/96 GM Notice of My Suspension A83

6 3/18/06 Campus Security Report A84-87

3/24/06 Notice of Final Suspension A88

8 3/27/06 My letter to U. President

in re My suspension A8&9-98

9 6/2007 Broadcast Policy Statement A99

10 Official FCC policy

from their website A100-03

11 7/9/07 Email GM notice of banishment A104

11]

Authorities

US CONSTITUTION

1s' Amendment 9,10, 11

5'> Amendment

7th Amendment 21

9th Amendment 1,9

L1t Amendment 8, 11, 12

14th Amendment co. 8, 2)

STATUTES, RULES AND REGULATIONS

28 USC §1254(1)

28 USC 1291 1

28 USC 1615 22

28 USC 1915(e)(2)(B) 21

28 USC 2111 5, 8

42 USC §1983 2

NYS Civil Right Law 42, §2 5,9

FRCP §60(b) 1,16

FRCP 11(b)2 11)

FRCP 15(c) 4,11, 23

FRCP 4(e) 3

FRCP 4(h) 3, 10

FRCP4g) & FRCP4(m) 4

KCC regulation §73.503(c) 5, 7,13

NYS regulation SUNY doc. (3700, §h) 6,7

iV

CASES

Action for Children’s Television

v FCC 59 F 3d 1249 G, 14. Zo

Adickes vu SH Kress 398 US 144, 152 9, 19, 21

Bell Atlantic v Twombly 550 US 544 19

Bell v Burson 402 US 535 14

Branum vu Clark 927 F.2d 698, 705 12

Triestman vu Federal Bureau

of Prisons, 470 F3d 471 12

Burton v Wilmington

Parking Authority 365 US 715

Cantwell v Connecticut, 310 U.S. 296

Chisholm v Georgia 2 Dallas 419, 470

Ex Parte Young 209 U.S. 123

Matter of Great Eastern Mall

vu Condon 36 NY 2d 544, 548-549

330 NE 2d 628,631; 369 N.Y.S.2d 672, 676

Miller v California 413 U.S. 15

Monroe v Pape 365 US 167, 172

Neitzke v Williams, 490 U.S. 319

People v Calbud, Inc 49 NY2d 389,

402 NE 2d 1140

People v Dougtas 60 NY 2d 194

People uv PJ Video 68 NY2d 296,

501 NE2d 556 cert denied 479 US 1091

94 L. Ed. 156, 107 S Ct 1301

Pillay vu INS 45 F3d 14, 17

Ramsey v Coughlin 94 F3d 71

Soto v Walker et al 44 F.3d 169

Southeastern Promotions Ltd v

Conrad 420 U.S. 546; 43 L. Ed.2d 448;

95S. Ct. 1239

Sable Communications

of California, Inc. v. FCC, 492 U.S. 115

Thomas vu Collins 323 US 516

West v Atkins 487 U.S. 42

Wood v Strickland 420 U.S. 308

322,

Yick Wo v Hopkins 118 US 356

362 ff 373

TREATISES AND MISC

Black’s Law Dictionary,

7 Ed. p. 1244

Censorship and Literature

in Fascist Italy. U. of Toronto Press, 2007

Inside Deep Throat

by Fenton Bailey and Randy Barbato

Decisions and Orders

True and authentic copies of all the decisions and

orders in this case have been included in the

Appendix, hereto.

Jurisdictional Statement

This petition for writ of certiorari is authorized by 28

USC §1254(1) to review the October 30, 2009, 2d

Circuit pre briefing dismissal of my 28 USC 1291

appeal from the final decision of NDNY entered June

15, 2009: my Notice of Appeal became operative on

August 24, 2009 disposition of my FRCP §60(b)

application for post judgment relief. On December 2,

2009, the 2d Circuit denied my application for

reconsideration and on February 26, 2010, Justice

Ginsberg extended the time for me to file this petition

to and including April 1, 2010 (app no. 09A791).

Constitution and the law

US Const 1st Amendment “Congress shall make no

law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the

Government for a redress of grievances”.

US Const 5th Amendment “No person shall be ...

deprived of life, liberty, or property, without due

process of law ...“

US Const 9t» Amendment “The enumeration in the

Constitution, of certain rights, shall not be construed

to deny or disparage others retained by the people”.

US Const 11t Amendment “The Judicial power of

the United States shall not be construed to extend to

|

any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of

another State, or by Citizens or Subjects of any

Foreign State”.

US Const 14 Amendment “Scction. 1. All persons

born or naturalized in the United States and subject

to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws”.

42 USC §1983 “Every person who, under color of any

statute, ordinance, regulation, custom, or usage, of

any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be hable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress,

except that in any action brought against a judicial

officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted

unless a declaratory decree was violated or

declaratory relief was unavailable. For the purposes of

this section, any Act of Congress’ applicable

exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia”.

FRCP 4(h) Serving a Corporation, Partnership, or

Association. Unless federal law provides otherwise or

2

the defendant’s waiver has been filed, a domestic or

foreign corporation, or a partnership or other

unincorporated association that is subject to suit

under a common name, must be served: (1) in a

judicial district of the United States: (A) in the

manner prescribed by Rule 4(e)(1) for serving an

individual; or (B) by delivering a copy of the summons

and of the complaint to an officer, a managing or

general agent, or any other agent authorized by

appointment or by law to receive service of process

and — if the agent is one authorized by statute and

the statute so requires — by also mailing a copy of

each to the defendant; or (2) at a place not within any

judicial district of the United States, in any manner

prescribed by Rule 4(f) for serving an individual,

except personal delivery under (f)(2)(C)Q).

FRCP4(e) Serving an Individual Within a Judicial

District of the United States. Unless federal law

provides otherwise, an individual — other than a

minor, an incompetent person, or a person whose

waiver has been filed may be served in a judicial

district of the United States by: (1) following state law

for serving a summons in an action brought in courts

of general jurisdiction in the state where the district

court is located or where service 1s made; or (2) doing

any of the following: (A) delivering a copy of the

summons and of the complaint to the individual

personally; (B) leaving a copy of cach at the

individual’s dwelling or usual place of abode with

someone of suitable age and discretion who resides

there; or (C) delivering a copy of each to an agent

authorized by appointment or by law to receive

service of process.

FRCP4QG) Serving a_ Foreign, State, or Local

Government. (1) Foreign State. A foreign state or its

political subdivision, agency, or instrumentality must

be served in accordance with 28 U.S.C. § 1608. (2)

State or Local Government. A state, a municipal

corporation, or any other state-created governmental!

organization that is subject to suit must be served by:

(A) delivering a copy of the summons and of the

complaint to its chief executive officer; or (B) serving

copy of each in the manner prescribed by that state’s

law for serving a summons or like process on such a

defendant.

FRCP4(m) Time Limit for Service. If a defendant is

not served within 120 days after the complaint is

filed, the court on motion or on its own after notice

to the plaintiff must dismiss the action without

prejudice against that defendant or order that service

be made within a specified time. But if the plaintiff

shows good cause for the failure, the court must

extend the time for service for an appropriate period.

This subdivision (m) does not apply to service in a

foreign country under Rule 4(f) or 4(j)(1).

FRCP 15(c) Relation Back of Amendments. (1) When

an Amendment Relates Back. An amendment to a

pleading relates back to the date of the original

pleading when: (A) the law that provides’ the

applicable statute of limitations allows relation back;

(B) the amendment asserts a claim or defense that

arose out of the conduct, transaction, or occurrence set

out or attempted to be set out — in the original

pleading; or (C) the amendment changes the party or

the naming of the party against whom a claim is

4

asserted, if Rule 15(c)(1)(B) is satisfied and if, within

the period provided by Rule 4(m) for serving the

summons and complaint, the party to be brought in by

amendment: (i) received such notice of the action that

it will not be prejudiced in defending on the merits;

and (11) Knew or should have known that the action

would have been brought against it, but for a mistake

concerning the proper party's identity.

28 USC 2111 On the hearing of any appeal or writ of

certiorari in any case, the court shall give judgment

after an examination of the record without regard to

errors or defects which do not affect the substantial

rights of the parties.

rCC regulation §73.503(c)

“A noncommercial educational FM broadcast station

may broadcast programs produced by, or at the

expense of, or furnished by persons other than the

licensee, 1f no other consideration than the furnishing

of the program and the costs incidental to its

production and broadcast are received by the licensee.

The payment of line charges by another station

network, or someone other than the licensee of a

noncommercial educational FM broadcast station, or

general contributions to the operating costs of a

station, shall not be considered as being prohibited by

this paragraph”.

NYS Civil Right Law 42, §2. No authority can, on

any pretense whatsoever, be exercised over the

citizens of this state, but such as is or shall be derived

from and granted by the people of this state.

SUNY regulation, document #3700 §“h” Kadio

Stations, Establishment & Operation of

Noncommercial Broadcast. “Ihe president of each

campus at which a non-commercial broadcast station

is established is responsible for the compliance of the

station with all applicable statutes, rules and FCC

policies. The president shall determine _ the

appropriate administrative and operational

relationships necessary to assure compliance. Such

relationships should provide for any necessary review

of operations which may be required to meet the

nondelegable responsibility of the University, as

licensee for proper and_ sufficient control over

programming with particular reference to the policies

and requirements governing such programming (e.g¢.,

obscenity, personal attacks, lottery information,

fraudulent schemes, equal opportunities for political

candidates, the licensee’s limitations on identification

of programs produced by, or at the expense of, or

furnished by others)’.

Statement of the Case

WHRW is a non commercial broadcast station

established on the SUNY Binghamton campus. It is

owned by the University and the airwave allocation is

licensed to SUNY Binghamton by the FCC |A80-A81].

In controversy is an express 24 hr a day broadcast ban

of protected speech —i.e., profane speech and words

which include indecent speech as a policy control over

obscenity [A99]. This Court and the 2d Circuit have

ruled that such out mght ban of indecent speech is

unconstitutional Action for Children’s Television

v FCC 59 F 3d 1249 citing Sable Communications of

California, Inc. v. FCC, 492 U.S. 115 (1989).

6

NYS regulation (3700, §$h) (p. 5 supra) [A56-57, 7B]

requires the University President under the

“nondelegable responsibility” of the University to

ensure that station broadcast policy controls are

“proper” and in compliance with the law.

A new broadcast policy control was promulgated by

the station General Manager (GM). I notified the

University of said broadcast policy impropriety [A69-

78] and the University, through her President

abdicated responsibility under 3700, §h (p. 5 supra):

causing me to be subjected to policy action by the

GM/University employee as enforced by campus

security [A84-87] resulting in a 1 year suspension of

my broadcasting privileges granted to me under

University license [A82-83,88j) and FCC reg.

§73.503(c) (p, 5 supra) [A A55-56, 910(A)]).

Ground of said suspension is that I allegedly

broadcast material containing the phrase “you’re not

worth shitting on” [A82] and other unidentified

material [A83] between the hours of 10pm and 6am

and now remain permanently banished from said

airwaves [A104] for refusing to sign and agree to

policy [A99] after my post suspension return [A104].

NDNY dismissed on jurisdictional grounds (1) that

my caption names the University: that §1983 money

damages against the University are barred by the 11th

A. US Const; that Ex Parte Young relief can’t enjoin

corporate action only action of a State officer [A18-

19]; and (2) sua sponte that the GM in conferring and

suspending “clearance’/’access” to station airwaves or

banishing persons there from are private acts without

nexus to the University [A27-30 ff A29-30].

The 2d Circuit dismissed without briefing [A40-41].

7

Why the Court Ought to Grant Cert

Public broadcasters at a NYS Public University non

commercial broadcasting facility ought to be afforded

Federal protection of Our Liberty to broadcast all that

the law allows. The sound recordings of Poe, Joyce,

Ginsberg Burroughs and others, documentaries on

Lenny Bruce, &c have serious literary, artistic, and

political value and are of historical significance. There

is no governmental interest compelling the mutilation

or obfuscation of said works or to ban them between

the hours of 10pm and 6am.

i) THe US CONST ii* A. CAPTION ISSUE

OUGHT TO BE DEALT WITH AND SETTLED

BY THIS COURT UNDER 28 USC 2111

HARMLESS ERROR.

By express broadcast policy [{A99], indecent and

profane speech is under 24 hour a day broadcast ban

at WHRW, a non-commercial radio station established

on the SUNY Binghamton campus. The policy is

enforced by campus. security [A84-87 ff A877].

University abdication of “nondelegable responsibility”

to ensure said broadcast policy is proper and

knowingly allowing it to continue [A45, 911] is an

misuse of State authority. The University is a person

acting under color of law just like the AG in Ex Parte

Young 209 U.S. 123 and while said broadcast policy

ought to be enjoined the NYS AG moved to dismiss

under 11ttA. U.S. Const. Contrary to Adickes vu SH

Kress 398 US 144, 152 NDNY claims that only a

State officer can be enjoined under Young doctrine, re-

assigns “nondelegable responsibility” for the policy to

the GM and dismisses sua sponte claiming the policy

action complained of is private action.

8

Pt Hd II shows that the GM is acting under color of

law University involvement is culpable inaction.

$355.00 for a new action, $60.00 for process service for

a new caption naming the University President acting

in her official capacity, this would obviate the NYS

AG 11 A. issue, allow Young doctrine relief, allow me

to return to broadcasting but NDNY will dismiss

again on his same said private action theory. Begging

the question, why allow the 11 A issue? See [A1].

The only Federal remedy is to grant cert treating the

caption issue as harmless error (as NDNY essentially

did) and rule on his sua sponte private action theory.

How his theory/decision, in conjunction with the 2d

Cir pre-briefing dismissal, conflicts with the relevant

decisions of this Court is discussed under Pt Hd II,

and Pt Hd III, respectively. Otherwise, State College

Radio broadcasters will be subject to censorship.

Paradoxically, the People of NYS are entitled to

protection of Our residual rights declared under the

[st 5th, Oth & 14th A. US Const, particularly in a

designated public forum: but the NYS AG is not

representing us, he is representing a NYS chartered

corporation that chose to abdicate responsibility

under NYS law for a policy inimical to Our residual

rights and doing so under pretence of 11t* A. US

Const, his action, proscribed by NYS Civil Rights

Law_ {2,§2 (p. 5 supra) is facilitating the continuing

policy at a State University facility in Violation of the

1st A. US Const. without any NYS compelling interest.

Internal conscience compels injunction of said policy.

Both governments are neutral as to the residual

rights of Persons. Banning the policy enforcement in

the safe harbor zone harms no one.

9

Myself and the mortal members of the University

board, shall perish along with their President, whose

resignation becomes effective July 2010 but the 1* A.,

US Const, the Public, the University and the policy in

controversy, now continuing, under 3. different

General Managers, shall live on. In the reality of War,

the individuals wielding the weapon or those felled by

it are the symptoms of war: guns are legal just don’t

use them in our port and keep your policy weapon out

of Our safe harbor, avoids such conflict altogether.

caption, the person to be served under FRCP 4(h) [cf

(c) and G)] (pp 2-4 supra) and NYS law was served.

The NYS AG filed Notices of Appearance and took

part in motion practice in both courts. Under NYS

law, objection to the caption as such is harmless error

and ought to be so at the Federal level too Matter of

Great Eastern Mall v Condon 36 NY 2d 544, 548-

549; 330 NE 2d 628,631; 369 N.Y.S.2d 672, 676

“Rather than follow respondents’ view, we would

adopt a two-pronged test more consonant with

modern rational thinking toward pleading and

procedure: First, did the entity which is the

actual respondent, if not the formally named

respondent, receive adequate notice of the

commencement of the proceeding? Second, would

any substantial right of this entity be prejudiced

by disregarding the [***676] defect or

irregularity?”

The notice provided to the corporate person of which

the President is a part, declares that the broadcast

policy the University is expressly responsible for is

10

unconstitutional and the corporation is expected to be

intelligent enough to know that Wood v Strickland

420 U.S. 308, 322, especially in hght of the University

1st Amendment Policy [A77-78, A92-97].

-

he same is true for the opposing attorneys cf.

FRCP 11(b)2: “after an inquiry reasonable under the

circumstances...[whether] defenses and other legal

contentions are warranted by existing law’. The law

expects the NYS AG to know inter alia that the

University is in violation of NYS regulation, that

responsibility for the broadcast policy in question is

nondelegable and that the action of the GM under the

rule in West v Atkins 487 US 42 as addressed infra

(Pt Hd ID is action under color of law

Because NYS has no demonstrable interest in the

rights reserved to the people than to honor and defend

them: then the extension of 11" A. immunity to bar

prospective declaratory and injunctive relief against

a continuing policy in clear violation of the 1*t A,

which the University, under NYS law, and as a

corporate person, has express “nondelegable

responsibility” of and for: would subvert the very

power and purpose of Ex Parte Young doctrine to

deprive me and similarly situated people of privilege

and Liberty interests protected under the 1st, 5, Qth

and 14th Amendments to the US Const. without due

process of law; and in violation of my equal protection

rights as one sovereign in conflict with another

Chisholm v Georgia 2 Dallas 419, 470. If NYS is not

a person and if a corporation, is; then the latter is not

the State, the same as a NYS AG isn't NYS either.

If amendment is the decided course it ought to “relate

back” FRCP 15(c) to commencement of the action.

I beheve that the NDNY decision resulted from none

of these people wanting to be remembered as one that

blessed the broadcast of “shit” at 4am over airwaves

emanating from SUNY Binghamton, otherwise there

would be no 11'' A. pretence and no misstatement of

the decisions of this Court.

The community standard doctrine Miller v

California 413 U.S. 15 in NYS cf NYS Penal Law

§235 is State wide People v Calbud, Inc 49 NY2d

389, 402 NE 2d 1140. People vu PJ Video 68 NY2d

DVD documentary “Inside Deep ‘Throat’

Bailey and Randy Barbato, additional material

therein shows “Binghamton Press” Emeritus David

Rossie talking about community standards in

Binghamton NY regarding obscenity and a local jury

whom to his surprise determined that the film “Deep

Throat” is not obscene. Service by publication would

also serve, in part, as an apt solution to that papers’

adamant failure to cover my story. Maybe there’s a

covert hush order or symbiotic “meeting of the minds”.

And, of course, there is always the alternative: the

11% A. objection is obviated by allowing me, my pro se

right to amend once of course at any time during the

proceeding, which the 2d Circuit otherwise affords

Soto vu Walker et al 44 F.3d 169 citing Branum vu

Clark 927 F.2d 698, 705 thus allowing a pro se to

amend once of course at any time even on an

amendment, included on a motion for reconsideration

[A39]; and that I’m entitled to de novo review, liberal

construction of my pleading interpreted to raise the

strongest argument it suggests ‘Triestman vu Federal

Bureau of Prisons, 470 F3d 471.

12

11) DISMISSAL IS IN CONFLICT WITH RELEVANT

DECISIONS OF THIS COURT _ON AN

IMPROPERLY STATED RULE OF LAW

The initial broadcast policy [A70] was promulgated by

University employee/GM Richard Bellin after my

annual clearance/access was conferred to me under

the FCC license held by the University. The policy

was then revised under University employee/GM

Mark Saltzman [A99] these were the 1st two of the

last 3 GMs under whom said policy has continued.

‘The act of the GM, in conferring clearance — viz., the

privilege to broadcast over station airwaves for 1 year

after passing the annual clearance test is an act of

delegated authority under University FCC lcense and

FCC regulation §73.503(c), p. 5 supra; under the rule

in West v Atkins 487 U. S. 42 said GM action is

action under color of law.

My Jst claim is the misuse of said authority Monroe

vu Pape 365 US 167, 172 — viz, suspension of

clearance on material broadcast inside the safe

harbor zone in violation of station policy — e.g., the

word “shit” at Jam [A43-44 996, 9; A46-49 9915-23 ff

A46, 49, 9417, 23]. Documentary evidence shows

that I had been cleared and that my clearance was

suspended for the spring and summer of 2006 [A82,

13, A83, A87, A88].

The speech on which my suspension and banishment

was and is based is not obscene and said policy action

under color of law inside the safe harbor zone is

unconstitutional. NDNY has no case that converts

said action of the GM into private action he just says

it’s private action 1n order to dismiss my complaint.

13

Southeastern Promotions Ltd v Conrad 420 U.S.

546; 43 L. Ed.2d 448; 95 8. Ct. 1239 requires a formal

judicial proceeding to establish obscenity prior to the

abridgment of protected speech. The burden is on the

person acting under color of law to show compelling

State interest necessitating curtailment What NDNY

considers “constitutionally adequate due_ process”

[A25 n 7] is inimical to and not due process.

Under the rule invoked by Bell v Burson 402 US 535

suspending, revoking or withholding a_ privilege

conferred under authority of the State without due

process 1s unconstitutional inter alia @ 539

“[Ljicenses are not to be taken away without

that procedural duc process required by the

Fourteenth Amendment... [t]his is but an

application of the general proposition that

relevant constitutional restraints limit state

power to terminate an entitlement whether the

entitlement is denominated a "right" or a

"privilege."

In conjunction with the 1*' A. US Const Justice

Brennan also cites Cantwell vu Connecticut, 310

U.S. 296 see also Thomas v Collins 323 US 516

Broadcast speech is protected under the US Const,

Action for Children’s Television (p. 6 supra). Please

take judicial notice of Black’s Law Dictionary, 7'> Ed

p. 1244, definition of designated public forum. Their

example is “a public university facility’. WHRW

airwaves, open to the public, is a designated public

forum. ‘The burden is on the University to show

compelling interest for the policy control, so NDNY

refuses to concede, that said airwaves are a

designated public forum [A21-22, n 4].

14

The 2°4 claim in my original complaint is prior

restraint [A50]. After suspension, I returned to the

station, broadcast one show and then the new station

GM, Mark Saltzman withheld further access until I

signed and agreed to a revised policy statement [A99]

and when I refused I was and continue to be banished

from the University airwaves [A104]. Said

precondition is prior restraint.

Until the broadcast policy promulgated under GM

Bellin [A70] clearance requirements were strictly

technical; all the speech that is allowed to be

broadcast under FCC policy was allowed [A48, 421].

So that when I was a cleared broadcaster these

broadcast policies did not exist, consequently, I did

not have to accept these preconditions in order to be

granted clearance to broadcast under the University

license.

The burden is on the University to show why it is

allowing this policy and preconditions to continue.

The NDNY private action dismissal theory is

dependent on his own refusal to acknowledge that the

airwaves are a designated public forum [A21-22, n

4]; and his own refusal to acknowledge the facts that

lead to the irresistible conclusion that the GM policy

actions are actions under color of law inter alia the

GM has no independent authority to allow members

of the public to enter the facility, use the airwaves

licensed to the University nor independent authority

to issue swipe cards to access the facility [A57-58,

9]13]. The foregoing material abilities of the GM are

made possible on becoming manager of the University

facility —i.e., managing access to University airwaves,

under delegated authority of the University.

1S

As a threat against any future suit brought to enjoin

the policy by naming the University President acting

in her official capacity or otherwise NDNY threatens

to exclude Court decisions regarding inaction or else

ignores the facts that show inaction [A23, n 6 cf A36,

A91] and please note, contrary to his 60(b)

disposition, the policy was clearly shown and alleged

to be unconstitutional, not just more restrictive than

FCC rules inter alia [A44-50 (original complaint 4§

1, 9,11, 13, 17, 23, 27]

Under the NDNY decision no injunction may lie

against the policy, unless | allege that the University

or President was involved in the creation and

enforcement of the policy viz., his so called

“causation element of my 1% Amendment claim”

[A20-22 ff 21-22, A29] and then sua sponte imposes

his private property enterprise theory used to dismiss

§1983 claims against private insurance companies,

utilities, or private nursing homes [A29, A36-39].

So even if the foregoing was a correct statement of

law and there were no facts showing an affirmative

act of the University, this does not change the fact

and point of law that the policy action by the GM is

action under color of law. University enforcement of

the polhcy and clearance by campus security is

already shown [A84-87 f/f 87].

University policy inaction knowingly allowing the

Improper broadcast policy to continue, subjecting and

causing me to be subjected to deprivation without due

process of law of my privilege conferred to me undcr

University license and the same inaction causing me

to be subject to banishment from University airwaves

are established facts entitling me to §1983 relief.

lo

If the students need extra cash and were shown using

University facilities as a brothel would the University

have to allow that to continue too? O dear the

community outcry. The violation of free speech is just

as illegal it’s only a matter of degree.

Allowing the broadcast policy to continue is a

University policy choice between that and her duty

under law inter alia said FCC reg that “no other

considerations” are required of the broadcasters and

NYS regulation to ensure the broadcast policy is

proper (pp 5-6 supra). Inaction is the same as if the

University declared the broadcast policy proper; and

whereas the broadcast policy is not proper then the

University ought to be held accountable and subject in

name to at least declaratory and injunctive rehef

The station history preserved for appeal but omitted

herein shows abdication as a matter of policy. Please

take judicial notice of the same said history appearing

on line http://www.whrwtim.org/history.php

“Jan. 1989 - 2 members of the Ku Klux Klan

request air time on WHRW. A huge outcry

results on campus and in the community. Then

President Chfford Clark sets up an "advisory

committee", ostensibly to help WHRW in this, as

well as future "controversial" programming

matters. WHRW_ vehemently protests’ this

invasion of programming autonomy. WHRW's

board, 1n a 9-4 vote, denies the Ku Klux Klan's

request because "the board could not come to a

consensus as how to broadcast such a program in

an educational manner." ‘The president's

commiuttee eventually stops convening, though it

is not officially dissolved”.

17

This 1s not a new federalism issue. NYS courts

require the same Public component as Federal courts.

If NDNY and the NYS AG are allowed to have their

way, the University, it’s President nor the GM can be

sued to enjoin the policy and as a matter of form over

substance censorship assumes the preferred position

while free speech becomes a prerogative of the State

If you allow this foregoing situation to continue, you

will have the same State and cultural agent

relationship as in Fascist Italy. Please take judicial

notice of the following book review by Silvia Valisa

(Department of Foreign Languages and Literatures,

San Francisco State University) of the book by Guido

Bonsaver Censorship and Literature in Fascist

Italy. University of Toronto Press, 2007 http://www.h

net.org/reviews/showrev.php?id= 14302

“Fascist censorship was not a monolithic and

tightly coordinated machine of repression’ (p. 5)

Callling] into question the notion of absolute

consistency that is often ascribed to "censorship" ...

He, thus, addresses the issue of censorship as a

hinge point of the relations between state and

cultural agents, relations that occur ‘sometimes in

oppositional terms but more often in self-adjusting

complhieit ones’

Cf, p. L2 supra in re the local Pre

Warden, the jailer opened the door your doctor came

in and cut off my hand. O gee that’s too bad, sue him

What if he cuts off my other hand? Call a lawyer first

The most full and efficacious remedy is to issue

declaratory judgment against the policy and prohibit

it inside the safe harbor zone

further Considerations

The NDNY ignores covert motives behind inaction as

addressed in cases such as Yick Wo v Hopkins 118

US 356, 362 ff 373 e.g., so we hire a youngster,

coerce him into doing the censoring for us, maybe

distance ourselves further by hiring a middleman

you want to graduate don’t you? Then you'd better

keep quiet about this, listen and listen good: we’re not

telling you what to do, but think of your future: our

success in fund raising, from the very people you may

end up working for, to pay off your education debt,

who don't like this sort of thing on the radio.

The “meeting of the minds” as discussed in Adickes

is already done. The GM by ce knew I informed the

University of the policy, saw no action was taken, that

campus security enforced his policy action. The new

GM is briefed he delivers the policy ultimatum if any

dare to defy him, he calls security. As it stands the

(GJM may ban people from the designated public forum

for indecent speech in the safe harbor zone without

any fear of reprisal from any court in the US.

Inaction is recognized in Bell Atlantic v Twombly

550 US 544 and NDNY opposition to the idea of

“culpable State inaction” causes him to miss the

pertinence of Burton v Wilmington Parking

Authority 365 US 715

“IN|Jo State [Actor] may effectively abdicate its

responsibilities by either ignoring them or by

merely failing to discharge them whatever the

motive may be .... By its inaction ... the State

[Actor] has ... elected to place its power, property

and prestige behind the admitted discrimination

that it must be recognized as a joint participant”

19

NDNY did not provide the careful decision making

prescribed by the case law he’s relied on which declare

exceptions to the Burton precedent but also expressly

declare that matters regarding Public property are

outside of the ambit of those decisions. The cases

NDNY rehes on appertain to private’ property

enterprises and decisions having no nexus. with

governmental authority. My case appertains to the

property of a Public University, public broadcast

airwaves licensed to the University and University

employee(s) acting under University authority. ‘The

dismissal decision misstates the case law of this Court

and is in conflict with a multitude of your decisions.

lil) THE 2D CIRCUIT PRE-BRIEFING DISMISSAL

IS A DEPARTURE FROM THE ACCEPTED

AND USUAL COURSE OF _ JUDICIAL

PROCEEDINGS

The most disappointing aspect of this dismissal are

the triable issues of fact NDNY raised for the 1*' time

in his dismissal order, without prior notice providing

me no full or fair opportunity to challenge his sua

sponte theory in re the GM or his claimed facts as I

am entitled to under 2d Cir rule Ramsey v Coughlin

94 F3d 71. This was done while my application for

preliminary relief and default judgment against the

station was pending. My case and appeal were both

dismissed on an application for preliminary relef

against the broadcast policy 1n controversy.

| also asked for ‘Trial by Jury in my original complaint

as | do in my proposed amendment of course and yet

the fate of my claim was decided on inter alia some

David Hagerbaumer person, a self admitted haison

between the station and the University? I want to

()

depose and cross examine him. Who is he? Is he the

middleman discussed at p 19 supra? What is his role?

Does he order censorship on behalf of the University?

Why did NDNY accept his affidavit introduced by the

NYS AG in opposition to preliminary relief against

the policy? The NYS AG in defending the policy is a

waiver of her 11% A. US Const immunity claim and/or

admits the policy action is under color of law. Maybe

Hagerbaumer as an employee ought to be joined as a

party. What justifies denying these same privileges of

deposition, discovery cross examination, jury trial

readily available to a licensed attorney? ‘To me this is

irregular procedure devoid of due process cf Adickes

Black concurring @ US 176 citing US Const 7¢) A.

In regards to the claim of 2d Circuit inherent power to

dismiss. This derives from action under a statute

appertaining to incarcerated persons. The particular

case regards such a person having asked that counsel

be appointed. I’m not incarcerated did not proceed in

forma pauperis. I paid $355.00 to file my complaint,

$60.00 to have it served and then $455.00 for my 2d

Circuit appeal. These are not “nominal fees”. And also

preserved for appeal, is an itemized bill for costs fees

and disbursement in my NDNY application for default

judgment against the station.

The 2d Circuit now requires that if a pro se htigant

files a motion, we also have to file an additional

statement, the same as that required by in forma

pauperis applicants; and the court does clearly and

plainly claim that it may dismiss an appeal on the

basis of such statement; but fairness administered by

a Federal Court is not an unreasonable due process

expectation.

21

~_

My 1° experience with the 2d Circuit some time ago

was 1*' class. Regrettably, I am morally compelled to

add, that my recent pro se experiences with the 2d

Circuit are the worst I’ve had in any court

particularly in terms of verbal and emotional abuse by

the pro se case worker and other persons I’ve spoken

with; but lkewise, frisked like a criminal at the

magnetometers. Having to partially undress take off

my shoes pull my pant legs up walk around in circles

with my arms over my head, while lawyers gingerly

hop skip and jump by flashing their IDs. The only

experiences I can imagine worse is prison or the

military and although the Binghamton NY Supreme

Court is quite bad in comparison to the 34 Dept. or

the NYS Court of Appeals, how could you really know

unless you are a non hicenséd pro se.

I suspect that the motion clerk saw that I filed the

required statement and then he/she merely issued the

“no arguable basis” form-order [A40] and [A411]. Or

that someone requested it; but I did not request it nor

was I appointed an attorney. Under the present

administration there is nothing to prevent the

foregoing or the following — viz., the district court

takes your money claiming inter alia that you made

conclusory statements, you then pay an additional

$455.00 and your appeal is dismissed prior to briefing

by a 9 word conclusory statement. Since Neitzke vu

Williams, 490 U.S. 319 was decided the pertinent

statute now appears to be 28 USC 1915(e)(2)(B).

My un-incarcerated, paid for appeal to the 2d Circuit,

is of nght, so that this ancillary statute ought to be

strictly construed, and if so, then it appertains to

22

incarcerated persons. Pillay v INS 45 F3d 14, 17 as

the 2d Cir origin of their self created inherent power

pre briefing dismissal rule does not entirely avoid

strict construction as Pillay (1) appears to have been

incarcerated and the self admitted dicta the Pillay

panel relied on, appertained to summary affirmance

of criminal convictions authorized by a statute they

admit was abrogated and (2) was based upon the

request of a lawyer whom Pillay asked to be appointed

under 28 USC 1615, who wished to withdraw because

he allegedly felt the appeal was frivolous.

To obviate any further obstacle the 2d Circuit merely

claims an inherent right to do pre bricfing dismissals

against anyone, with the compromising admonition:

“(W]e caution the bar that overreaching attempts to

dismiss appeals as frivolous, lke excessively

zealous claims that adversary counsel should be

sanctioned, will not be accorded a friendly reception

by this court”.

So what does this mean? The Court did not declare

any self restraint for itself and hasn’t shown any to

me. Maybe it means if you’re a lawyer and want a ‘no

arguable’ against your pro se opponent don’t put it in

your papers call the clerk and we'll issue a 9 word

conclusory statement, based on the words employed

in the Neitzke decision. O “this era of burgeoning

appellate dockets’, the 1st Amendment, big deal,

right? cf People v Douglas 60 NY 2d 194.

So now this pre- briefing dismissal policy extends

beyond criminal cases to 15* A. civil cases and thus

the civil appeal as of right becomes ‘discretionary’

with no intermediate appellate review. Inconvenient

23

subject matter like the Censorship of College Kadio

and other wrongdoing can be obfuscated and

concealed from any appellate review, whatever.

And thus from an appointed attorney requesting

court permission to withdraw on his affirmed

statement, that a claim is frivolous, to the NYS AG,

a private attorney, a Judge, &c making a call to a

clerk asking for a ‘no arguable’ in a civil case, with

no fear of likely review. Maybe the district judge

knows the AG that knows the appellate clerk, too.

There’s nothing to prevent the foregoing from

happening so I would like this Court to devise and

place limitations on this sort of dismissal

particularly in the manner it was applicd to my un-

incarcerated full paying pro se civil case with triable

issues present.

Dismissal as such was unwarranted and I want my

money back.

Conclusion

The Broadcast policy is unconstitutional. It ought to

be declared as such and it’s enforcement prohibited

inside the safe harbor zone. For the sake of judicial

economy and unquestionable efficacy you ought to

grant that relief, now; and I would be most Honored if

you would grant my application to call up the record

from the 2d Circuit and that I may brief any matters

you may find necessary.

Otherwise please remand my case to NDNY for

further proceedings on triable issues and to depose

and cross examine this David Hagerbaumer person;

24

and that if there is any chance that damages may be

awarded and if amendment is found necessary then

please allow my amendment to relate back under

FRCP 15(c) or allow me to bring a new action with

relation back and without prejudice.

This Court ought to impose a_ lLmiting factor

preventing this NDNY private property enterprise

theory from being applied to other public or quasi

public venues. As it stands this theory is open ended

in NDNY and maybe the 2d Circuit

In this immediate instance NDNY has opened the

door welcoming the censorship of College radio.

Whereas this Court has ruled that an outright ban of

protected speech is not a proper control and 1s 1n fact.

unconstitutional Action for Children’s Television a

priori the policy in controversy is unconstitutional

and ought to be struck down.

I declare under penalty of perjury that the foregoing

is true and correct

Dated March 26, 2010

Ss

79m 23 <amon ? Dyno

Respectfully submitted

Thomas Lamont Dyno

46 Academy Street

Johnson City New York

13790-1519

697-729-4039

Office of the Clerk

U.S. DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

RE: Dyno vs. WHRW FM Radio May7, 2009

CASE NUMBER: 3:09-CV-313

Dear Mr. Dyno:

The Clerk of the Court has informed me that an

entry of default has been noted on the docket of the

above-entitled action. Should the Plaintiff wish to

move for default judgment, the appropriate motion

for default judgment must be made within thirty (30)

days from the date of this notice.

IT IS ORDERED.

Dated: May7, 2009

Binghamton, New York

Hon. ‘Thomas J. McAvoy, U.S.D.2.

UNITED STATES DISTRICT COURT NORTHERN

DISTRICT OF NEW YORK

THOMAS LAMONT DYNO,

Plaintiff, 3:09-C V-313

against- (TJIM-DEP)

SUNY BINGHAMTON,

WHRW FM RADIO,

Defendants.

THOMAS J. McAVOY, Senior United States District

Judge

ORDER

lL. INTRODUCTION

Plaintiff commenced this action pro se pursuant to 42

U.S.C. § 1983 alleging that the suspension and

subsequent revocation of his disc jockey privileges at

radio station WHRW FM (the “Station”), located on

the campus of Binghamton University of the State

University of New York (“BU”), violated his First and

Fourteenth Amendment rights. See Compl., dkt. # 1.

Plaintiff seeks injunctive relief and monetary

damages. See id. Defendant BU has moved pursuant

to Fed. R. Civ. P. 12(b)0) & (6) to dismiss the

Complaint on the grounds that: 1) the claims against

BU are barred by the Eleventh Amendment; and 2)

the allegations against BU fail to state a claim upon

which relief can be granted. See BU’s Mot. to

Dismiss, dkt. # 7. Plaintiff has opposed the motion.

See Plf. Opp., dkt. # 8. The motion was returnable on

the Court’s May 22, 2009 motion calendar, and the

Court has determined that the motion will be

addressed on the written submissions alone. See

Court’s 5/13/09 Text Notice.

A2

Defendant Station has not appeared in this action

and the Clerk of the Court entered default against

this Defendant on May 7, 2009. See Clerk’s Entry of

Default, dkt.#13. On May 11, 2009, Plaintiff

brought an application for an Order Show Cause

wherein he sought to: (a) “correct” the caption on the

Clerk’s Entry of Default and on a scheduling Order

issued by the Court; (b) argue, for the second time,

the merits of his opposition to BU’s motion to

dismiss; and (c) argue, for the second time, in support

of his position that there should be oral argument on

BU’s motion. Appl. for O.8.C., dkt. # 16. The

application was denied on May 13, 2009. See 5/13/09

Order, dkt. # 17.

On May 14, 2009, Plaintiff filed another application

for an Order to Show Cause, this one seeking,

essentially, a preliminary injunction requiring that

Plaintiffs disc jockey privileges be reinstated and

enjoining Defendants from enforcing the Station’s

policy that prohibits the use of on-air language

considered obscene and profane by the Station. P1.

Emergency Motion, dkt. # 18.1 Although Plaintiff

requests a temporary restraining order, he asserts

that “(t]he primary purpose of this application by the

proposed order to show cause is to bring this matter

before the court to be heard at the same time as the

NYS AG’s pending motion.” Dyno Aff. 4 5. Plaintiff

served the application, and supporting papers, on the

Defendants by placing them in the U. S. mail on the

1Memorandum of Law, Plaintiff argues the merits of his

application for temporary injunctive relief but also argues,

again, in opposition to BU’s motion to dismiss and for oral

argument at the Court’s May 22, 2009 motion calendar. Pl,

Mem. L. pp. 8-13.

A3

date that he filed his application. See dkt. # 18-1, pp

2°.

Il. DISCUSSION

Plaintiffs disc jockey privileges were first

temporarily suspended in March of 2006, and then

indefinitely suspended after he returned to the

station in June of 2007 but refused to sign an

avreement that he would abide by the Station’s

policies. Compl. 4916-7. Hence, it appears that

Plaintiff has not worked in the Station in almost two

years. Plaintiffs delay in bringing his application

fails to support the drastic remedy of a temporary

restraining order pending resolution of the sought-

after preliminary injunction. See Warner Bros. Inc.

v. Dae Rim Trading, Inc., 877 F.2d 1120, 1125 (2d

Cir. 1989)(The purpose of a TRO is generally to

preserve the status quo for a limited period of time

until the Court has the opportunity to pass on the

merits of the demand for a preliminary injunction.);

See also New York Magazine v. Metropolitan Transp.

Auth., 136 F.3d 123, 127 (2d Cir. 1998)(On a

mandatory injunction which seeks to alter the status

quo or provide the movant with substantially all of

the relief it seeks, the moving party must make a

“clear” or “substantial” showing of a hkelihood of

success on the merits.); Tom Doherty Assocs., Inc. v.

Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir.

1995)(1A] mandatory injunction should issue only

upon a clear showing that the moving party is

entitled to the relief requested, or where extreme or

very serious damage will result from a denial of

preliminary relief.”)Gnternal quotation omitted).

Rather, the circumstances highlight Plaintiffs

professed “primary goal” in proceeding by way of

A4

Order to Show Cause which is to “bring this matter

before the court to be heard at the same time as the

NYS AG’s pending motion.”

It should be noted that the use of the expedited

procedure of an Order to Show Cause is not intended

to be used, as seems to be the case here, to

circumvent the time and notice requirements of the

Local Rules.” It should also be noted that, for the

second time, Plaintiff has failed to comply with the

requirements of the Local Rules addressed _ to

applications for Orders to Show Cause. See N.Y.N.D.

L.R. 7.1e).3

2The procedural rules apply to pro se litigants, especially ones

bke Plaintiff who fancy themselves as having an understanding

of the nuances of litigation gained through prior litigation. See

Pl. Mem. L. in Support of 1st OSC, p.6 (“Other reason for

dealing with [the caption] is to avoid misunderstandings.

misrepresentations, and procedural quagmire lat the] 2d

“);

See also Faretta v. California, 95 5. Ct. 2525, 2541 n. 46

(1975)('The right of self-representation is not a license. . . not

to comply with relevant rules of procedural and substantive

law.”); Edwards v. INS, 59 F.3d 5, 8 (2>¢ Cir. 1995)(’While a

prose \litigant’s pleadings must be construed hberally, ... pro se

litigants generally are required to inform themselves regarding

procedural! rules and to comply with them.”).

3 This provides: In addition to the requirements set forth in

Local Rule 7.1(a)(1) and (2), a motion brought by Order to Show

Cause must include an affidavit clearly and specifically showing

good and sufficient cause why the standard Notice of Motion

procedure cannot be used. The moving party must give

reasonable advance notice of the application for an Order to

Show Cause to the other parties, except in those circumstances

where the movant can demonstrate, In a detailed and specific

affidavit, good cause and substantial prejudice that would

result from the requirement of reasonable notice.

N.Y.N.D.L.R. 7.1(e)(emphasis added).

AD5

Nevertheless, Plaintiffs papers raise the questions

of: (1) whether there is state involvement in the

Station’s policies or actions; (2) whether there is the

makings of a cognizable constitutional violation

under the circumstances of this case; and (3) whether

the limited exception to Eleventh Amendment

immunity recognized in Ex Parte Young, 209 U.S.

123 (1908) applies in this case.

fll. CONCLUSION

Therefore, for the reasons’ stated above, the

appheation for a temporary restraining order is

DENIED. Plaintiff's application for an Order to Show

Cause is GRANTED to the extent that his

application for a preliminary injunction will be

setdown on the Court’s June 8, 2009 motion

calendar. Opposition and Reply papers shall be filed

in accordance with the Local Rules. BU’s motion to

dismiss the action [dkt. # 7] is ADJOURNED to the

June 8, 2009 motion calendar. The motions will be

considered on the basis of the submissions alone (e.g.

no oral argument). If there is a need for an

evidentiary hearing, it will be scheduled by the Court

after review of the papers.

IT IS SO ORDERED

DATED: May 18, 2009

Thomas 8. McAvoy

Senior, U.S. District Judge

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Thomas Lamont Dyno JUN 15, 2009

vs.

CASE NUMBER: 3:09-CV-313

SUNY Binghamton, et al

Decision by Court. This action came to trial or

hearing before the Court. The issues have been tried

or heard and a decision has been rendered.

ITIS ORDERED AND ADJUDGED that Defendant

SUNY Binghamton’s Motion to Dismiss 1s granted.

Plaintiffs Motion for Preliminary Injunction is

Denied. Defendant, WHRW EFM Radbio, is dismissed

from this action for lack of subject matter

jurisdiction. Plaintiffs Motion for Default Judgment

against WHRW IM Radio is denied as Moot.

All of the above pursuant to the order of the

Honorable Judge Thomas J. McAvoy, dated the 15th

day of June, 2009.

Clerk of Court

5. Potter

Deputy Clerk

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

THOMAS LAMONT DYNO,

Plaintiff,

against JUN 15, 2009

SUNY BINGHAMTON,

WHRW FM RADIO,

Defendants,

THOMAS J. McAVOY,

Senior United States District Judge

DECISION & ORDER

INTRODUCTION

Plaintiff commenced this action pro se pursuant to 42

U.S.C. § 1983 alleging that the suspension and

subsequent revocation of his disc jockey privileges at

radio station WHRW FM (the “Station”), located on

the campus of Binghamton University of the State

University of New York (“BU”), violated his First and

Fourteenth Amendment rights. See Compl., dkt. # 1.

Plaintiff sues the Station and BU seeking injunctive

and declaratory relief as well as monetary damages.

See id.

BU moves pursuant to Fed. R. Civ. P. 12(b)(1) & (6)to

dismiss the Complaint on the grounds that: 1) the

claims against BU are barred by the Eleventh

Amendment; and 2) the allegations against BU fail to

state a claim upon which relief can be granted. See

BU’s Mot. to Dismiss, dkt. #7. Plaintiff opposes the

motion. See Plf. Opp., dkt. #8.

A8

Plaintiff also moves for a preliminary injunction

requiring that his disc jockey privileges be reinstated

and enjoining Defendants from’ enforcing the

Station’s policy that prohibits the use of on-air

language considered obscene or profane by the

Station. Pl. Emergency Motion, dkt. # 18. BU

opposes the preliminary injunction, See BU’s Resp.

in Opp. ldkt. # 20], and Plaintiff has replied to BU’s

opposition. See PL.’s Reply ldkt. # 23]. The Station

has not appeared in this action and the Clerk of the

Court entered default against this Defendant on May

7, 2009. See Clerk’s Entry of Default, dkt. # 13.

TT, STANDARDS OF REVIEW

a. FED. R. Civ. P. 12(b)(1)

A case is to be dismissed for lack of subject matter

jurisdiction pursuant to FED. R. Civ. P. 12(b)(1)

when the district court lacks the statutory or

constitutional power to adjudicate it. Makarova v.

United States. 201 F. 3d 110, 118 (2d Cir. 2000). A

plaintiff asserting subject matter jurisdiction has the

burden of proving by a preponderance of the evidence

that it exists. See Luckett v. Bure, 290 F.3d 493, 497

(2d Cir. 2002); See also Malik v. Meissner, 82 F.3d

560, 562 (2d Cir. 1996). When a defendant moves to

dismiss claims pursuant to Fed. R. Civ. P. 12(b)(1),

“the movant is deemed to be challenging the factual

basis for the court’s subject matter jurisdiction.”

Cedars-Sinai Medical Ctr. v. Watkins, 11 F.3d 1573,

1583 (Fed. Cir. 1993). For purposes of such a motion,

“the allegations in the complaint are not controlling

..and only uncontroverted factual allegations are

AQ

accepted as true.” Id. Both the movant and the

pleader are permitted to use affidavits and other

pleading materials to support and oppose the motion

to uismiss for lack of subject matter jurisdiction. See

Makareva, 201 F.3d at 113; Filetech S.A. v. France

Telecom, S.A., 157 F.3d 922, 932 (2d Cir. 1998); John

Street Leasehold, LLC v. Capital Mat. Res., L.P.,

2001 WL 310629, at *2 (S.D.N.Y. March 29, 2001).

“Thus, the standard used to evaluate a Rule 1 2(b)(1)

motion is similar to that used for summary judgment

under Fed. R. Civ. P. 56.” Lopresti v. Merson, 2001

WL 1132051, at *5 (S.D.N.Y. Sept. 21, 2001).

b. FED. R. Civ. P. 12(b)(6)

A motion under FED. R. Civ. P. 12(b)(6) tests the

legal sufficiency of the claims pleaded in the case.

The Supreme Court recently elaborated on the

standard to be used in addressing a Rule 12(b)(6)

motion and again explained Rule 12(b)(6)’s

interrelationship with the federal pleading standard

under FED. R. Civ. P. 8. See Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949-50 (2009). In this regard, the Court

explained:

Under Federal Rule of Civil Procedure 8(a)(2),

a pleading must contain a “short and plain

statement of the claim showing that the

pleader is entitled to relief.” As the Court held

in [Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007)],

the pleading standard Rule 8 announces does

not require “detailed factual allegations,” but it

demands more than an unadorned, the-

defendant-unlawfully-harmed-me — accusation.

A10

Id., at 555, 127 S. Ct. 1955 (citing Papasan v.

Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L.

Ed.2d 209 (1986)). A pleading that offers

‘labels and conclusions” or “a _ formulaic

recitation of the elements of a cause of action

will not do.” 550 U.S., at 555, 127 S .Ct. 1955.

Nor does a complaint suffice if it tenders

“naked assertion[s]” devoid of “further factual

enhancement.” Id., at 557, 1278S. Ct. 1955.

Ashcroft, 129 S. Ct. at 1949.

To withstand a Rule 1 2(b)(6) motion the “complaint

must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its

face.” Id. (quoting Twombly, 550 U.S. at 570). “A

claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the

reasonable inference that the defendant is liable for

the misconduct alleged.” Id. (citing Twombly, 550

U.S. at 557). Plausibility means “more than a sheer

possibility that a defendant has acted unlawfully,”

and a complaint that pleads facts “that are ‘merely

consistent with’ a defendant’s lability El ‘stops short

of the line between possibility and plausibility of

‘entitlement to relief.”” Id. (quoting Twombly, 550

U.S. at 557).

While the Rule 12(b)(6) standard has long required

that a court accept as true the allegations contained

in a complaint, this rule does not apply to legal

conclusions or to “lt]hreadbare recitals of the

elements of a cause of action, supported by mere

conclusory statements.” Id. (citing Twombly, 550 U.S.

at 555). The liberality accorded pleadings under Rule

8 “does not unlock the doors of discovery for a

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plaintiff armed with nothing more than conclusions.

[(O]nly a complaint that states a plausible claim for

relief survives a motion to dismiss.” Id., at 1950

(citing ‘Twombly, 550 U.S. at 556).

In deciding a Rule 12(b)(6) motion, review “is

generally lmited to the facts and allegations that are

contained in the {challenged pleading] and in any

documents that are either incorporated into the

[pleading] by reference or attached to the [pleading]

as exhibits.” Blue Tree Hotels Inv., Ltd. v. Starwood

Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217

(2d Cir. 2004) (citations omitted). Dismissal is

appropriate where the pleading fails as a matter of

law to state a claim upon which relief can be granted.

Phelps v. Kapnolas, 308 F.3d 180, 187 (2d Cir. 2002).

Cc. Preliminary Injunction

A preliminary injunction is an_- extraordinary

measure that should not be routinely granted.

Twentieth Century Fox Film Corp. v. Marvel

Enterp., Inc., 277 F.3d 253, 258 (2d Cir. 2002). It has

been said that it is “one of the most drastic tools in

the arsenal of judicial remedies.” Hanson Trust PLC

v. SCM Corp., 774 F.2d 47, 60 (2d Cir. 1985).

The standard a court must utilize in considering

whether to grant a request for injunctive relhef is

well-settled in this Circuit. As the Second Circuit

noted in Covino v. Patrissi, 967 F.2d 73 (2d Cir.

1992), the movant must show: (a) irreparable harm

and (b) either (1) a likelihood of success on the merits

of the claim or (2) sufficiently serious questions going

to the merits and a balance of hardships tipping

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decidedly toward the party seeking injunctive relief.

Id., at 77. Where, however, a movant seeks relief

which will alter, rather than maintain, the status

quo, or which will provide him with substantially al]

the relief sought, the injunction sought is properly

characterized as mandatory rather than prohibitory.

A party seeking a mandatory injunction must make a

“clear” or “substantial” showing of the likelihood of

success, as well as irreparable harm should the

injunction not be granted. Jolly v. Coughlin, 76 F.3d

468, 473 (2d Cir. 1996), cert. denied, 525 U.S. 824

(1998); Tom Doherty Assocs., Inc. v. Saban

Entertainment, Inc., 60 F.3d 27,34 (2d Cir.1995)(’[A]

mandatory injunction should issue only upon a clear

showing that the moving party is entitled to the

relief requested, or where extreme or very serious

damage will result from a denial of preliminary

relic’.”)Gnternal quotation omitted). While a factual

hearing is generally required on an application for a

preliminary injunction, no hearing is required where

material issues are not in dispute. Maryland

Casualty Co. v. Realty Advisory Board on Labor

Relations, 107 F.3d 979, 984 (2d Cir. 1997).

Hl. BACKGROUND

The following facts are taken from the Complaint

and the exhibits attached thereto, or from

uncontradicted facts presented in the affidavits

submitted in this matter.

WHRW FM (the “Station”) is an educational and

community radio station located on the campus of

Binghamton University of the State University of

New York (“BU”). Hagerbaumer Aff., § 3. It operates

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under a Federal Communications Commission

(“FCC”) license as a non-commercial, educational FM

radio station. Id. The Station is a_ student-run

organization that is chartered and funded by the

Student. Association at BU. Id. BU’s “involvement

with WHRW is limited to issues of the license and

Federal Communication (“FCC”) controls and

guidelines.” Compl. Ex.1 (10/27/05 Ltr. from BU

President Lois B. DeFleur). The BU administration

has no role in determining content or structure of the

Station’s programming or enforcement of Station

policy. Compl. Ex.1; Hagerbaumer Aff., at {| 4. All

Station programming, including creation of the

broadcast schedule, is decided by the Station’s Board

of Directors and Program Director. Hagerbaumer Aff.

"“ 5; Compl. Ex. 1. The Station Manager is

responsible for the oversight and implementation of

all Station pohcies and procedures, including those

relating to staffing and broadcasting privileges.

Hagerbaumer Aff., at ¥ 5.

The Station allows students and non-student

community members and groups to have on-air

shows. Compl. Ex. 1. Plaintiff was a volunteer disc

jockey at the Station and had his own on-air show.

Compl. Ex. 2.

The Station has a policy that prohibits its disc

jockeys from, at all times, using words, phrases, or

materials that the Station’s managers consider

obscene or profane. Compl, Ex. 8. In this regard, the

Station’s policy provides:

The FCC’s definition of obscenity is material

which is in the prurient interest, sexual in

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nature and lacking scientific, literary, artistic

or political value. WHRW follows the FCC

definition.

The WHRW definition of profanity is words or

material that can be interpreted [as]! profane

or vulgar. Examples of profane language

include: swearing, expletives and _ obscene

language.

A 24 hour ban on obscenities and profanity is

in effect at WHRW. The following are examples

of .obscene and profane material: “Fuck”,

“Motherfucker”, “Shit”, and other words,

»yhrases or matcrial that fit the two definitions

as defined by the FCC, the WHRW Program

Director or the WHRW General Manager.

Id.

At about 4 a.m. on March 5, 2006, while Plaintiff

was on the air, he allegedly played the phrase:

“you're not worth shifting on.” Compl. 4 6,18 & Ex.

2.2 On March 9, 2006, the Station’s Program

Director wrote to Plaintiff indicating that it had

been brought to her attention that Plaintiff played

this phrase and advised him that “I[tlhis is against

WHRW policy and therefore, absolutely cannot be

played EVER.” Compl. Ex. 2 (emphasis in original).

She further advised: “I consider this a warning.

However, if this happens again, I will be forced to

cancel your show.” Id.

1The text uses the word “or” instead of “as’ which, for obvious

reasons, appears to be a typographical error.

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On March 18, 2006, the Station’s General Manager

sent Plaintiff a letter indicating:

During your show from 10pm [sic] March 11th

to 2 AM [sic] March 12th, you deliberately

played material containing words you knew to

be contrary to WHRW’s rules and regulations.

You also failed to log a station ID) from the

hours of 2200 to 0100 as well as failed to log on

a sign-off cart. As a cleared DJ who has taken

and passed the WHRW clearance exam, you

know that the FCC requires WHRW to air

station ID within 5 minutes of each hour and

also requires that the information in the sign-

off cart be played before broadcast ends.

As of this moment, your clearance has been

suspended pending a board meeting at 7pm on

Thursdayl,] March 234 2006 in room WBO8

(next door to the station). At this meeting you

be able to speak on your behalf and the future

of your clearance at WHRW will be discussed.

Compl. Ex. 3; See also Compl. ¥4 6, 18.4

On March 24, 2006, the Program Director wrote in a

letter to Plaintiff-

After two separate incidents involving WHRW

rules violations and a board meeting to hear

2Plaintiff does not deny that he played this phrase while on the

air and has contended throughout this matter that his speech

on this, ard another date, was protected under the First.

Amendment. See e.g. compl. Ex. 7 (March 27, 2006 letter from

Plaintiff to Lois B. DeFluer, President of SUNY Binghamton,

complaining that his “broadcasting privileges” were “arbitrarily

revoked” for “airing protected speech”).

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your defense, it has been the decision of the

WHRW board to suspend your clearance,

starting immediately, and lasting until

Summer 2007. At this point, you will have to

rel-lJapprentice and take the clearance exam in

order to regain your status as a WHRW

member and engincer.

Compl. Ex. 4.

Plaintiff returned to the Station on June 23, 2007

and served as an apprentice for one broadcast show.

Thereafter, however, Plaintiff refused to sign an

agreement to abide by the Station’s policy and he

was banned “indefinitely” from broadcasting as a disc

jockey at the Station. Compl. 4 7 & Ex. 9.

Plaintiff commenced this action on March 18, 2008.

He sues both the Station and BU pursuant to 42

U.S.C. § 1983. Plaintiffs primary contention is that

the Station’s policy imposing a 24-hour ban on

material the Station’s managers consider to be

profane or obscene, which Plaintiff contends is more

restrictive than, and at odds with, FCC regulations

banning such material only at certain’ hours,

infringes his First Amendment right to free speech.

See e.g. Compl. § 9 (“the suspension of [Plaintiffs

broadcasting} privilege was an infringement [of his

First Amendment rights] and on a ground contrary to

express FCC policy.”); § 10 (the Station’s policy

placing a 24-hour ban on obscenity and profanity is

contrary to FCC regulations that allow such speech

“within the safe harbor zone”); 4 20-23 (asserting

3Again, Plaintiff does not deny that he played material that was

in violation of the Station’s policy. He also does not deny that he

failed to log a station ID at the times asserted.

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that the Station’s policy was more restrictive than

the FCC regulations). Plaintiff seeks monetary

damages, a declaration that the Station’s policy is

unconstitutional, and an injunction restoring his

broadcast privileges and preventing the Station from

enforcing its policy in the future.

IV. DISCUSSION

a. Eleventh Amendment Immunity

BU argues that the action against it, a state agency,

is barred by the Eleventh Amendment. Plaintiff

argues that the exception to Eleventh Amendment

immunity enunciated in Ex parte Young, 209 U.S.

123 (1908), applies to that portion of the action

seeking prospective equitable relief.

The Eleventh Amendment serves as a jurisdictional

bar to suits against a state agency regardless of the

nature of the relief sought, including suits in equity.

Pennhurst State School & Hospital v. Halderman,

465 U.S. 89, 100 (1984); Green v. Mansour, 474 U.S.

64, 72-73 (1985); See also Dube v. State University of

New York, 900 F.2d 587, 594 (2d Cir. 1990) (“For

Eleventh Amendment purposes, SUNY is an integral

part of the government of the State lof New York]

and when it is sued the State is the real party.”)

(internal quotation marks omitted) (alterations in

original). However, a narrow exception to this

principle allows a federal court to issue an injunction

against a state official in his or her official capacity

who is acting contrary to federal law. Ex _ parte

Young, 209 U.S. 123 (1908); See Pennhurst, 465 U.S.

at 102; New York Health and Hospitals Corporation

et al. v. Perales, 50 F.3d 129 (2d Cir. 1995). This

exception is a lmited one, and is authorized to

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“vindicate the supremacy of [federal] law.” Ward v.

Thomas, 207 F.3d 114, 119 (2d Cir. 2000). Under Ex

parte Young, “a plaintiff may sue a state official

acting in his official capacity - notwithstanding the

Eleventh Amendment - for prospective, injunctive

relief from violations of federal law.” In re Deposit

Ins. Agency, 482 F.3d 612, 617(2d Cir. 2007)Gnternal

quotation marks omitted). “Such claims, however,

cannot be brought directly against the state, or a

state agency, but only against state officials in their

official capacities.” Ghent v. Moore, 519 F. Supp.2d

328, 334 (W.D.N.Y. 2007)(citing Santiago v. New

York State Dep’t of Correctional Services, 945 F.2d

25, 32 (2d Cir.1991) (“a plaintiff seeking prospective

rehef from the state must name as defendant a state

official rather than the state or a state agency

directly, even though in reality the suit is against the

state”); Banks v. SUNY, 2007 WL 895505, at *7

(W.D.N.Y. Mar. 22, 2007) (’A state official...may be

sued in his official capacity in a federal forum to

enjoin conduct that wviolates the federal

Constitution”); Dicks v. Binding Together, Inc., 2007

WL 1462217, at *5 (S.D.N.Y. May 18,

2007)(’Plaintiffs claims for prospective injunctive

relief are not barred by the Eleventh Amendment -

provided, however, that Plaintiff brings those claims

against a state official, rather than the state itself.”).

Plaintiff has not sued a state official acting in his or

her individual or official capacity. Accordingly, the

exception to Eleventh Amendment immunity

enunciated in Ex parte Young is inapplicable. The

claims against BU must be dismissed.

b. Rule 12(b)(6)

Assuming arguendo that Plaintiff intended to bring

an official capacity suit against a BU official, such as

President DeFleur, he fails to assert a_ plausible

claim of either a First or Fourteenth Amendment

violation against such a defendant.

1. First Amendment

The First Amendment provides that “Congress shall

make no law... abridging the freedom of speech... .”

U.S. Const. amend. I. It has “long been established

that ‘the conception of liberty under the due process

clause of the Fourteenth Amendment embraces the

right of free speech, and that [the First

Amendment’s] provisions therefore apply to state

governments.” Lusk v. Village of Cold Spring, 475

F.3d 480, 485 (2d Cir. 2007)(quoting Stromberg v.

California, 283 U.S. 359, 368 (1931)). “The First

Amendment ‘was fashioned to assure unfettered

interchange of ideas for the bringing about of

political and social changes desired by the people.”

Meyer v. Grant, 486 U.S. 414,421, 108 S. Ct. 1886,

100 L. Ed.2d 425 (1988) (quoting Roth v. United

States, 354 U.S. 476, 484, 77S. Ct. 1304, 1 L. Ed.2d

1498 (1957)).

Assuming without deciding that the Station operated

as a limited public forum in which the government

may make only reasonable, viewpoint-neutral rules

governing the content of speech allowed therein, See

2007) 4 Plaintiff has failed to allege that there existed

any BU policy concerning the operation of the

Station, or that any BU official took any affirmative

action to curtail the content of Plaintiffs speech.®

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Rather, the allegations in the Complaint and the

exhibits attached thereto indicate that BU

administrators had no role in operating the Station,

in determining the content or structure of the

Station’s programming, or in enforcing the Station’s

policies. See Compl. and Exs. 1-4, 6, 8-9. Although

BU is involved with the Station on “issues of the

license and [FCC] controls and guidelines,” Compl.

Ix. 1, Plaintiff's grievance is with the Station’s policy

which, he contends, is more restrictive than, and at

odds with, the FCC’s regulations on the use of

obscenities and profanity. See e.g. Compl. 94 9, 10,

20-23. Thus, even construing the allegations in the

pro so Complaint to raise the strongest argument

th > raoat Hughes vy. Rowe, 440 1 lS RF a 11

th uggest, See Hug . Rowe S. 5, 2, 101

S. Ct. 173, 66 L. Ed. 2d 163 (1980), Plaintiff fails to

allege a plausible claim against a _ state official

because he fails to allege facts supporting the

causation element of his First Amendment claim. See

Brown v. Sheridan, 894 F. Supp. 66, 71 (N.D.N-Y.

1995)(’To prevail on his claim under Title 42, section

1983, plaintiff must show that officials were 1) acting

under color of state law, 2) that their actions

deprived plaintiff of a mght guaranteed by the

constitution or the laws of the United States, and 3)

that the defendants’ acts were the proximate cause of

the injuries and consequent damages sustained by

the plaintiff.”)(internal citations omitted). Simply

stated, he fails to allege facts supporting the

contention that a State official caused his asserted-

4 In Husain, the Second circurt wrote: Courts have long

recognized that student media outlets at public universities,

and the student journalists who produce those outlets, are

entitled to strong First Amendment protection. ‘These rights

stem from courts’ recognition that such student media outlets

generally operate as “limited public fora,’ within which schools

A21

.

we

First Amendment injury. Blyden _v. Mancusi, 186

F.3d 252, 267 (2d Cir. 999) “Liability under Section

1983 is only for those deprivations of rights caused

by the defendant’s behavior.”).6 Thus, even if not

barred by the Eleventh Amendment, Plaintiff fails to

plead a plausible First Amendment claim against a

BU official.

2. Fourteenth Amendment

Again construing Plaintiffs pro se Complaint to raise

the strongest argument it suggests, he may also be

contending that (1) he had a protected property right

in his broadcast privileges, and/or, (2) he had a

protected liberty interest in his good reputation, both

of which were deprived in violation of his Fourteenth

Amendment right to due process. See Compl. 4 17

(“My privilege to broadcast under the FCC license is

a privilege and property right conferred by the State

may not disfavor speech on the basis of viewpoint. In limited

public fora, the government may make reasonable, viewpoint-

neutral rules governing the content of speech allowed.” Peck v.

Raldwinsville Cent. Sch. Dist., 426 F.3d 617, 626 (2d Cir. 2005)

(emphasis and internal citations omitted). Once the state has

created a limited public forum, however, it must respect the

boundaries that it has set. it may not “exclude speech where its

distinction 1s not reasonable in light of the purpose served by

the forum, nor may it discriminate against speech on the basis

of its viewpoint.” Rosenberger v. Rector & Visitors of the Univ.

of Va., 515 U.S. 819, 829, 115 S. Ct. 2510, 132 L. Ed.2d 700

(1995)Uinternal citations and quotation marks omitted) The

forum itself can take many forms, yet the analysis of the

constitutionality of restrictions imposed on speech made in the

forum remains the same. See id. at 830, 115 S. Ct. 2510 (“The

lstudent activity fund] is a forum more in a metaphysical than

in a spatial or geographic sense, but the same principles are

applicable.”)

5 Plaintiff has not alleged that he expressed any viewpoint that

UU administrators or the Station’s managers sought to curtai!

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and protected under the U.S. Constitution, which

inter alia cannot be revoked or suspended in terms of

1st Amendment rights under the U.S. Const. without

compelling interest.”); id. % 30 (“Plaintiffs basis for

damages is (a) the stigma of being seen in the Press

and in the Public eye as a person who repeatedly

broadcast obscene material when in _ actuality

Plaintiff was being wrongfully and _ arbitrarily

punished for allegedly broadcasting material which

under the Constitution and law is_ protected

speech.”). Nevertheless, Plaintiff fails to allege

sufficient facts to support a legally plausible claim

under either theory.

In order to formulate a claim under the

Fourteenth Amendment’s Due Process Clause,

[Plaintiff] must demonstrate that he possesses

a constitutionally protected lhberty or property

interest, and that state action has deprived

him of that interest. See U.S. Const. amend

XIV,$ 1; See also, e.g. Bd. of Regents v. Roth,

6Plaintiff argues in his Memorandum of Law that President

DeFleur was aware of the unconstitutional practice at the

Station yet failed to intervene to stop it. In support of this

proposition, he cites to DeFleur’s October 27, 2005 letter which

is attached to the Complaint as Exhibit A. However, Plaintiff

has not sued President DeFleur in either her official or

individual capacity, and he has not provided any factual

allegations explaining what prompted DeFleur’s October 27,

2005 letter. [t would be sheer speculation to conclude that the

letter was in response to a complaint about the Station’s

obscenity and profanity policy. While Plaintiff does allege in the

Complaint that he complained to DeFleur of the Station’s

allegedly unconstitutional policy, the complaint was made after

he was suspended and, therefore, could not have been the basis

of DeFicur’s October 27, 2005 letter. See Compl. 4 24 & Ex. 7

(P].’s 03/27/06 letter to DeF leur).

A283

408 U.S. 564, 569, 92 S. Ct. 2701, 2705 (1972)

(“The requirements of procedural due process

apply only to the deprivation of interests

encompassed by the Fourteenth Amendment’s

protection of liberty and property.”). Courts

“examine procedural due process questions in

two steps: the first asks whether there exists a

liberty or property interest which has been

interfered with by the State; the second

examines whether the procedures attendant

upon that deprivation were constitutionally

sufficient.” Ky. Dep’t of Corr. v. Thompson, 490

U.S. 454, 460, 109 S. Ct. 1904, 1908

(1989)(citation omitted).

Storman_v. Klein, 2009 WL 1035964, at 11

(S.D.N.Y. April 20, 2009) (footnotes omitted).

The facts alleged in the Complaint fail to

demonstrate that Plaintiff had a protected property

interest in his voluntary disc jockey privileges at the

Station. Rather, the allegations in the Complaint

demonstrate that Plaintiff had a_ unilateral

expectation of, or desire for, the” privilege” to serve

as a voluntary disc jockey, and that he did so at the

discretion of the Station’s management and Board of

Directors. There is no allegation that Plaintiff had a

contract for the position or that state law somehow

entitled him to the position. Without factual recitals

supporting the existence of a protected property

interest in the broadcast privileges at the Station,

the claim is legally implausible. See Bd. of Regents v.

Roth, 408 U.S. at 577, 92 S. Ct. at 2709 (“To have a

property interest in a benefit, a person clearly must

have more than an abstract need or desire for it. He

must have more than a unilateral expectation of it.

A24

He must, instead, have a legitimate claim of

entitlement to it.” ); Velez v. Levy, 401 F.3d 75, 85

(2d Cir. 2005)(/|OInly where a _ plaintiff can

demonstrate that state law confers ‘a legitimate

claim of entitlement’ to a particular position will a

property interest in that position arise.”); Storman,

2009 WL. 1035964, at 12 (“A plaintiff must establish

that his contract or functional equivalent confers the

benefit as ‘virtually a matter of right.”)(quoting

1974)); See also Arteta v. County of Orange, 141 Fed.

Appx. 3, 6 (2d Cir. 2005)(When an individual claims

to have a property interest related to employment,

courts may look to the _ relevant contract of

employment - either explicit or implicit - or its

functional equivalent to determine whether the

individual has such a property interest.”). Hence, any

Fourteenth Amendment claim brought on this basis

must be dismissed.”

71t is also worth noting that the Station afforded Plaintiff notice

of the Board meeting where the “future” of a _ broadcast

privileges would be addressed, and afforded him an opportunity

to present his defense to the Board. Thus, it would seem that

the Station afforded Plaintiff constitutionally adequate due

process before it suspended him from serving as a disc jockey.

Sce Cleveland Bd. of Educ. v. Louderm ill, 470 U.S. 532, 542,

105 S. Ct. 1487, 1493 (1985)(An essential principle of due

process 1s that a deprivation of life, liberty, or property ‘be

preceded by notice and opportunity for hearing appropriate to

the nature of the case.”)(quoting Mullane v. Cent. Hanover

Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656-57

(1950)); Calhoun v. N.Y. State Div. of Parole Officers, 999 F.2d

647, 653 (2d Cir.1993) (“Due process requires, as a general

matter, ‘an opportunity to be heard’ ‘at a meaningful time and

in a meaningful manner.”)(quoting Mathews v. Eldridge, 424

U.S. 319, 333, 96 S. Ct. 893, 902 (1976)).

A25

‘l'o the extent that the Complaint alleges a denial of a

Fourteenth Amendment hberty interest based upon

purported damage to Plaintiffs reputation, the claim

fails because Plaintiff has not alleged sufficient facts

to satisfy the “stigma” element of the claim. See

Storman, 2009 WL 1035964, at 13-15. Assuming the

Station publicized a statement that Plaintiff was

banned for playing profane material on two occasions

and for refusing to sign an agreement to abide by the

Station’s policy, the statement reflects conduct that

was within Plaintiffs power to correct, which did not

reflect dishonesty or immorality, and which Plaintiff

has not asserted was false. Thus, the claim fails to

assert a plausible claim of the deprivation of a

constitutionally protected liberty interest. See id at

*14 (“[Sltatementls] that an employee poorly

performed her duties or acted in an improper

manner, or that describe behavior or actions that are

within the employee’s power to correct, do not

generally quahfy as stigma for constitutional

purposes.”)Gnterior quotation marks and citations

omitted); Schlesinger v.. N.Y. City Transit Auth.,

2001 WL 62868, at 7 (S.D.N .Y. Jan. 24, 2001) (“The

defamatory statements accused plaintiff only of

acting in an unprofessional manner. Furthermore,

the charges against plaintiff did not reflect

dishonesty or immorality, which may be beyond

plaintiffs power to correct. Rather, the charges

primarily concerned one incident where plaintiff

acted in a disrespectful manner. Because’ such

conduct is within his power to correct, the charge is

not sufficiently stigmatizing.”); Storman, 2009 WI

1035964, at 15 (“[Plaintiff] also must assert that the

stigmatizing statements are false, and prove the

stigmatizing statements were publicized.”) (citations

A26

omitted). Accordingly, any Fourteenth Amendment

due process claim based upon a purported denial of a

liberty interest must be dismissed.

c. Preliminary Injunction

Turning to the sought-after preliminary injunction

against the Station, it is apparent that Plaintiff

secks relief which will alter, rather than maintain,

the status quo. Thus, Plaintiff must make a “clear” or

“substantial” showing of the likelihood of success on

his Section 1983 claims.® In addressing the merits of

Plaintiffs claims, the initial question is whether he

has alleged sufficient facts to establish that the

Station, a nominally private entity, acted under color

of state !aw with respect to Plaintiffs disc jockey

privileges such to implicate Section 1983. See Flagg

Bros. v. Brooks, 436 U.S. 149, 155-57 (1978)(Under §

1983, a plaintiff must prove that a defendant

deprived him of a constitutional or federal statutory

right while acting under the color of law.). The Court

finds that he has not.

The Supreme Court has held that, to implicate 42

U.S.C. § 1983, conduct must be “fairly attributable to

the State.” Lugar v. Edmondson Oil Co., 457 U.S.

922, 937 (1982); See also Brentwood Academy v.

Tenn. Secondary Sch. Ath. Ass’n, 531 U.S. 288, 306

(2001).9

8Because Plaintiff asserts a loss of hrs First Amendment right to

free speech, the dispute on the preliminary injunction motion is

whether Plaintiff can satisfy the second prong on the

preliminary injunction standard. See Elrod v. Burns, 427 U.S.

347, 373 (1976)(' [T]he loss of First Amendment freedoms, for

even minimal periods of time, constitutes irreparable injury.’ );

Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984)(’[Wlhen an

alleged deprivation of a constitutional right is involved, .. . no

further showing of irreparable injury is necessary.”).

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For the purposes of section 1983, the actions of

a nominally private entity are attributable to

the state when: (1) the entity acts pursuant to

the “coercive power” of the state or is

“controlled” by the state (‘the compulsion

test”); (2) when the state provides “significant

encouragement” to the entity, the entity is a

“willful participant in joint activity with the

[sltate,” or the entity’s functions are “entwined”

with state policies (“the joint action test” or

“close nexus test”) or (3) when the entity “has

been delegated a _ public function by the

[sltate’(“the public function test”). Brentwood

Acad. v_Tenn, Secondary Sch Ath Ass’n, 531

U.S. 288, 296, 121 S. Ct. 924, 148 L. Ed 2d 807

(2001) (citations and internal quotation marks

omitted). Sylbalski v Ind Grp Hme Lyng Prog,

Inc 546 F 3d 255, 257-58 (2d Cir. 2008)

Plaintiff argues that the Station is a state actor

under the joint action test because BU created,

funded, and held the FCC license for the Station and,

thus, thus, BU was entwined with the Station.

2lhe Supreme Court wrote in Brentwood Academy: Like the

state-action requirement of the Fourteenth Amendment, the

state-action element of 42 U.S.C. ~ 1983 excludes from its

coverage merely private conduct, however discriminatory or

wrongful. Careful adherence to the ‘state action’ requirement

thus preserves an area of individual freedom by limiting the

reach of federal law and federal judicial power. The state-action

doctrine also promotes important values of federalism, avoiding

the imposition of 1 sponsibility on a State for conduct it could

not control. Although we have used many different tests to

identify state action, they all have a common purpose. Our goal

in every case is to determine whether an action can fairly be

attributed to the State.531 U.S. at 306 (internal citations and

quotation marks omitted).

A28

Schlein _v. Milford Hospital, inc., 561 F.2d

427,428 (2d Cir.1977) (internal quotation

marks and citation omitted)(emphases added);

See also United States v. Intl Bhd. of

Teamsters, 941 F.2d 1292, 1296 (2d

Cir.1991)(/’The question is not whether the

decision to establish the [private entity] was

state action, but rather whether the [private

entity]’s decision to sanction [plaintiffs] may be

‘fairly attributable’ to the [glovernment.”

(quoting Lugar v. Edmondson Oil Co., Inc., 457

U.S. 922, 937, 102 S. Ct. 2744, 73 L. Ed.2d 482

(1982))).

1:

Sybalski, 546 F.2, 257-58 (emphasis in Sybalski).

Plaintiff has not alleged _ sufficient facts to

demonstrate that BU or any of its administrators

had any involvement in the creation or enforcement

of the Station’s policies, and there are no factual

allegations that BU or its administrators played any

role in Plaintiffs suspension or in the purported

statements about the suspension. While Plaintiff

alleges that, after he was suspended, he wrote to

President DeFleur complaining of what he felt was

the Station’s unconstitutional policy, See Compl. 7 24

& Ex. 7, the Supreme Court has held that the “[mlere

approval of or acquiescence in the initiatives of a

private party is not sufficient to justify holding the

State responsible for those initiatives....“ Blum_v.

Yaretsky, 457 U.S. 991, 1004 (1982).

Plaintiff has failed to allege sufficient facts to

establish that the Station’s actions in drafting and

enforcing its profanity and obscenity policy, or

A29

making statements about Plaintiffs suspension, were

taken under color of state law. Without state action

on the Station’s part, the Section 1983 claims against

this defendant are fatally flawed and the sought-

after injunction cannot issue. More importantly,

however, is the Court’s current lack subject matter

jurisdiction over this matter. With the dismissal of

BU from this action and the determination that the

Section 1983 claims against the Station are fatally

flawed, the Court lacks subject matter jurisdiction

over the matter. Therefore, the Court must sua

sponte dismiss the action against the Station despite

its non-appearance in this matter. See Durant,

Nichols. Houston, Hodgson & Cortese-Costa P.C. v.

DuPont, 565 F.3d 56, 62-63 (2d Cir. 2009).1°

V. CONCLUSION

For the reasons” articulated above, SUNY

BINGHAMTON’s motion to dismiss the claims

against it [dkt. #7] is GRANTED, and all claims

against SUNY BINGHAMTON are DISMISSED.

Plaintiffs motion for a preliminary injunction [dkt. #

lW In Durant, Nichols, the Second Circuit wrote:

“It is a fundamental precept that federal courts are

courts of limited jurisdiction’ and lack the power to

disregard such hmits as have been imposed by the

Constitution or Congress. Owen Equipment & Erection

Co. v. Kroger, 437 U.S. 365, 374, 98 S. Ct. 2396, 57 L.

Ed.2d 274 (1978). If subject matter jurisdiction is lacking

and no party has called the matter to the court’s

attention, the court has the duty to dismiss the action sua

sponte. See , eg, Louisville & Nashville R.R. v. Mottley,

211 U.S. 149, 152, 29S. Ct. 42,53 L. Ed. 126 (1908).

565 F.3d at 62-63.

A30

18] is DENIED. Further, the Court sua sponte

DISMISSES the action against WHRW FM RADIO

for lack of subject matter jurisdiction.

IT IS SO ORDERED.

DATED: June 15, 2009

Thomas J. McAvoy

Senior, U.S. District Judge

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

THOMAS LAMONT DYNO,

Plaintiff,

-against- 3:09-C V-313

(TJM-DEP)

SUNY BINGHAMTON,

WHRW FM RADIO,

Defendants.

THOMAS J. McAVOY,

Senior United States District Judge

DECISION & ORDER

I, INTRODUCTION

Plaintiff commenced this action pro se pursuant to 42

U.S.C. § 1983 alleging that the suspension and

subsequent revocation of his disc jockey privileges at

radio station WHRW FM, located on the campus of

Binghamton University of the State University of

New York, violated his First and Fourteenth

Amendment rights. See Compl., dkt. # 1. The Court

dismissed the action by Decision and Order dated

June 15, 2009. See Dec. & Ord., dkt. # 27.

Familiarity with this Decision and Order is

presumed.

On June 25, 2009, Plaintiff moved pursuant to Fed.

R. Civ. P. 60(b) for reconsideration of the Court’s

June 15, 2009 Decision and Order, and _ for

permission to file an amended complaint. See Mot.

for Recon., dkt. # 28. On July 14, 2009, Plaintiff filed

a notice of appeal appealing the holding of the

Court’s June 15, 2009 Decision and Order to the

A82

United States Court of Appeals for the Second

Circuit. See Not. App., dkt. # 29. Both defendants

thereafter filed opposition to Plaintiffs motion, See

SUNY Bing. Opp., dkt. # 36; WHRW FM Radio Opp.,

dkt. # 3, and Plaintiff then filed a reply to this

opposition. See Reply, dkt. # 40.

HU. STANDARD OF REVIEW

a. Reconsideration - generally

Plaintiffs motion for reconsideration implicates both

Rule 60(b) of the Federal Rules of Civil Procedure

and Northern District of New York Local Rule

7.1(g).1 A motion for reconsideration is not a

substitute for an appeal. “Ihe standard for granting

1Rule 60(b) addresses the standard to be applied when relief

from a final judgment or order is sought, and provides in

relevant part that:

[oln motion and just terms, the court may relieve a party. . .

from a final judgment, order, or proceeding for the following

reasons: (1) mistake, inadvertence, surprise, or excusable

neglect; (2) newly discovered evidence that, with reasonable

diligence, could not have been discovered in time to move for a

new trial under Rule 59(b); (3) fraud (whether previously called

intrinsic or extrinsic), misrepresentation, or misconduct by an

opposing party; (4) the judgment is void; (5) the judgment has

been satisfied, released, or discharged; it is based on an earlier

judgment that has been reversed or vacated; or applying it

prospectively is no longer equitable; or (6) any other reason that

justifies relief.

Fed. R. Civ. P. 60( b).

“Local Rule 7. 1( g), on the other hand, merely details a

procedure to govern motions for reconsideration, without

setting out an applicable standard for determining such

applications.” Chao v. Magnuson, 2008 WL 2433698, at *2 fn. 2

(N.D.N.Y. June 12, 2008)(Peebles, M.J.)(citing N.D.N .Y. 1. R. 7.

1(g)).

A33

la motion for reconsideration] is_ strict, and

reconsideration will generally be denied unless the

moving party can point to controlling decisions or

data that the court overlooked - matters, in other

words, that might reasonably be expected to alter the

conclusion reached by the court.” Shrader v. CSX

Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); See

also Friedman v. S.U.N.Y. at Binghamton, 2006 WL

2882980, at * 1 (N.D.N.Y. Oct. 5, 2006). “The high

burden imposed on the moving party has been

established in order to dissuade repetitive arguments

on issues that have already been considered by the

court and discourage htigants from making repetitive

arguments on issues that have been thoroughly

considered by the court [and] to ensure finality and

prevent the practice of a losing party examining a

decision and then plugging the gaps of the lost

motion with additional matters.” Nowacki v. Glosson,

2001 WL 175239, *1 (N.D.N.Y. Jan. 24, 2001)

(Munson, J.) (internal citations and quotations

omitted). Reconsideration “is not a vehicle for

relitigating old issues, presenting the case under new

theories, securing a rehearing on the merits, or

”

otherwise taking a ‘second bite at the apple.” Segua

Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998).

Reargument is also not a vehicle to “advance new

facts, issues or arguments not previously presented

to the court.” Polanco v. United States, 2000 WL

1346726, at *1 (S.D.N.Y. Sept.19, 2000) (quoting

Schrader, 70 F.2d at 256). “The Northern District of

New York ‘recognizes only three possible grounds

upon which a motion for reconsideration may be

granted: (1) an intervening change in controlling law,

(2) the availability of new evidence not previously

available, or (3) the need to correct clear error of law

A384

to prevent manifest injustice.” Friedman, 2006 WL

2882980, at * I (quoting Nowacki, 2001 WL 175239,

at *1).

b. Impact of Notice of Appeal

“The fhling of a notice of appeal is an event of

jurisdictional significance - it confers jurisdiction on

the court of appeals and divests the district court of

its control over those aspects of the case involved in

the appeal.” Griggs v. Provident Consumer Discount

Co., 459 U.S. 56, 58-59, 103 S. Ct. 400,74 L .Ed.2d

225 (1982) (per curiam); See United States v.

Camacho, 302 F.3d 35, 36 (2d _ Cir.2002)(per

curiam)(same). One limited exception to this general

rule is that a district court may entertain and deny a

motion a motion brought pursuant to Fed.R.Civ.P.

60(b) notwithstanding the pendency of an appeal

from that order. Toliver v. County of Sullivan, 957

F.2d 47, 49 (2d Cir.1992) (per curiam) However, a

court “may grant a rule 60( b) motion after an appeal

is taken only if the moving party obtains permission

from the circuit court.” Id. at 49 (emphasis in

original). Further, the filing of the notice of appeal

divests the district court of jurisdiction to consider a

motion seeking permission to file an amended

complaint. Hernandez v. Coughlin, 18 F.3d 133, 138

(2d Cir.1994).

Ii. DISCUSSION a. Reconsideration

Plaintiffs motion for reconsideration is simply a

recasting of the arguments he presented in

opposition to SUNY Binghamton’s motion to dismiss

and in support of his motion for a_ preliminary

injunction. His arguments are merely an attempt to

plug the holes in his case and Plaintiff fails to satisfy

the burden for reconsideration.

A35

Plaintiff has not pointed to an intervening change in

controlling law, and he has not established the

availability of new evidence not previously available.

To the extent Plaintiff presents additional facts

through his affidavit, the asserted facts were

previously available and, therefore, will not be

considered. Further, the newly asserted facts (such

as the date that he purportedly advised the SUNY

Binghamton Board of ‘Trustees that the radio station

had an “unconstitutional” policy regarding the airing

of profanity or obscenities), even if considered, would

not change the conclusions reached in the June 15,

2009 Decision and Order. See e.g. Dec. & Ord. pp. 12>

13;2 18-19.3

Finally, Plaintiff has not pointed to any portion of

the Court’s decision from which there is “the need to

correct clear error of law to prevent manifest

injustice.” To the extent that Plaintiff relies on

7

Burton v. Wilmington Parking Authority, 365 U.S.

2 ("Although BU is involved with the Station on ‘issues of the

license and [FCC] controls and guidelines,’ Compl. Ex. 1,

Plaintiffs grievance is with the Station’s policy which, he

contends, is more restrictive than, and at odds with, the FCC’s

regulations on the use of obscenities and profanity. See e.g.

Compl. 44 9, 10, 20-23. Thus,... Plaintiff fails to allege a

plausible claim against a state official because he fails to allege

facts supporting the causation element of his First Amendment

claim.’).

3(“(T]he Supreme Court has held that the “[mJere approval of or

acquiescence in the initiatives of a private party is not sufficient

to justify holding the State responsible for those initiatives

Plaintiff has failed to allege sufficient facts to establish that the

Station’s actions in drafting and enforcing its profanity and

obscenity policy, or meking statements about Plaintiffs

suspension, were taken under color of state law.”)(quoting Blum

v. Yaretsky, 457 U.S. 991, 1004 (1982)).

A36

715, 81 5. Ct. 856, 6 L. Ed.2d 45 (1961) for the

contention that the Court erred in rejecting a state

action/joint participation finding between SUNY

Binghamton and WHRW FM Radio, Plaintiffs

argument, like the argument presented in DeBauche

v. Trani, 191 F.3d 499 (4t» Cir. 1999), “does not

account for the actual holding in Burton nor the

Supreme Court’s later refinements which explain

what is required to convert private action into state

action.” Id. at 507.

In Burton a government agency leased space

in a public parking garage to a restaurant that

discriminated against blacks. The Court

identified a symbiotic relationship in which

“profits earned by discrimination not only

contributeld] to, but also [were] ind/spensable

elements in, the financial success of a

governmental agency.” [Burton, 365 U.S. at

724] (emphasis added). In the “peculiar facts

land] circumstances present” in Burton, id. at

726, 81 S. Ct. 856, the Supreme Court

concluded that “[tlhe State hald] so far

insinuated itself into a position of

interdependence” with the restaurant that the

joint participation of public and private actors

made the private party’s conduct state action

restricted by the Fourteenth Amendment. Id.

at 725, 81 S. Ct. 856. That holding, however,

certainly does not stand for the proposition

that all public and private joint activity

subjects the private actors to the requirements

of the Fourteenth Amendment. See [Blum v.

Yaretsky, 457 U.S. 991, 1001 (1982)]; Jackson

v. Metropolitan Edison Co., 419 U.S. 345, 357-

A37

58, 95 S. Ct. 449, 42 L.Ed.2d 477 (1974); See

also Lebron v. National R.R. Passenger Corp..,

513 U.S. 374, 409, 115 S. Ct. 961, 130 L.Ed.2d

902 (1995) (O’Connor, J., dissenting) (noting

that Burton’s holding was “quite narrow” and

questioning its continuing viability). In its

more recent discussion of the subject, the

Supreme Court articulates the numerous

limits to the joint participation test, noting

that “Burton was one of our early cases

dealing with ‘state action’. . . and later cases

have refined the vague ‘joint participation’ test

embodied in that case.” [American Mfrs. Mut.

Ins. Co. v. Sullivan, 119 S. Ct. 977, 988

(1999)].

Id.

For the reasons discussed in the Court’s decision at

pages 18 to 19 (relying upon, /nter alia, Blum_v.

Yaretsky, 457 U.S. 991, 1004 (1982)4 & Sybalski v.

Independent Group Hlome Living Program, Inc., 546

I.3d 255, 257-58 (2d Cir. 2008)5), Plaintiffs

argument on this point is without merit.

Accordingly, Plaintiffs motion for reconsideration is

denied.

4(Holding that private activity will generally not be deemed

“state action’ unless the state has so dominated such activity as

to convert it into state action; and that “[mlere approval of or

acquiescence in the initiatives of a private party’ is insufficient.)

("It is not enough, however, for a plaintiff to plead state

involvement in some activity of the institution alleged to have

inflicted injury upon a plaintiff; rather, the plaintiff must allege

that the state was involved with the activity that caused the

injury giving rise to the action.”)(internal quotation marks and

citations omitted, emphasis in Sybalski).

A838

b. Amended Complaint

The Court lack jurisdiction to consider Plaintiffs

motion to file an amended complaint, and, therefore,

that portion of the motion is also denied.

IV. CONCLUSION

For the reasons discussed above, Plaintiffs motion

for reconsideration and to file an amended complaint

[dkt. #28] is DENIED.

IT IS SO ORDERED

DATED: August 24, 2009

Thomas J. McAvoy

Senior, U.S. District Judge

, BS

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCIUT

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pear] Street, in the City of New York, on the 30' day

of October, two thousand nine.

Present:

Roger J. Miner, 09-ev-0313

Reena Raggi,

Peter W. Hall,

Circuit Judges.

Thomas Lamont Dyno,

Plaintiff-Appellant,

Vv

SUNY Binghamton, WHRW FM Radio,

Defendants Appellees.

Appellant, pres se, moves for injunctive relief and for

an extension of time to file his brief. Upon due

consideration, it is hereby ORDERED, the motions

are DENIED and the appeal is DISMISSED because

it lacks an arguable basis in law or fact. See Pillary v

INS, 45 F.3d 14, 17 (@d Cir. 1995); Neitzke v.

Williams, 490 U.S. 319, 325 (1998).

FOR THE COURT

Catherine O’Hagan Wolfe, Clerk

By:

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCIUT

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United “tates Courthouse, 500

Pearl Street, in the City of New York, on the 2™ day

of December, two thousand nine.

PRESENT: ORDER

Roger J. Miner, Docket Number: 09-cv-0313

Reena Raggi,

Peter W. Hall,

Circuit Judges.

Thomas Lamont Dyno,

Plaintitf-Appellant,

Vv.

SUNY Binghamton, WHRW FM Radio,

Defendants-Appellees.

IT IS HEREBY ORDERED that the Appellent’s

motion for reconsideration and to vacate the order

dismissing the appeal is DENIED.

FOR THE COURT

Catherine O’Hagan Wolfe, Clerk

By: _ _

Judy Pisnanoni, Motions Staff Attorney

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Thomas Lamont Dyno

Plaintiff COMPLAINT

v Case No.

SUNY Binghamton and 42 USC §1983

WHRW FM Radio

Defendants

Thomas Lamont Dyno, as Piaintiff herein, alleges:

Jurisdictional Statement

1. This above captioned civil suit is comprised of two

causes of action, brought in pursuance of 42 USC

§1983 seeking declaratory injunctive and damage

relief against the deprivation of Plaintiffs 15st and

144 Amendment rights and privileges protected

under the U.S. Constitution and law by the policy

action and inactions of defendants acting under

color of law; and that this court has jurisdiction

over these actions pursuant to 28 USC §§ 1381,

1343(3) and (4) and 2201.

Parties

I am Thomas Lamont Dyno, I reside at 46

Academy Street, Johnson City New York, 13790

telephone 729-4039 and I appear herein as

Plaintiff pro se.

3. The 1*' defendant is the State University of New

York @ Binghamton which is located at 4400

Vestal Parkway East, Vestal, New York with

Administrative Offices in the Couper Building

and is herein referred to as “SUNY Binghamton”.

A42

4. The 2™ defendant is WHRW 90.5 FM, located in

WBO6 of the Union Bldg on the SUNY

Binghamton campus, referred to herein as

“WHRW” andor “the station”.

Preliminary Statement of Facts

5. The material facts for each cause of action brought

by this complaint are more fully set forth below

under those headings designating each cause of

action.

Plaintiff was a disc jockey at WHRW. On or

around March 9, 2006 the station program

director issued a written notice threatening the

cancellation of Plaintiffs show on ground that

words allegedly broadcast at 4am violated station

policy; on March 18, 2006 the station general

manager asserted in writing that Plaintiff played

material containing words that violated station

rules and regulations and on March 23, 2006

based on the foregoing “incidents” Plaintiffs

broadcasting privileges at the station were

suspended until the summer of 2007. (see 4/4 18-

19 infra).

On June 23, 2007 Plaintiff returned to the station

as an apprentice under Elijah Weber-Han,

broadcast one show, where after Plaintiff was

prevented from broadcasting again until he

signed an agreement to abide by “WHRW’s policy”

as set forth in a written policy statement

presented to him by the general manager and on

Plaintiffs refusal he was eventually banned

“sndefinitely”.

Plaintiff alleges, in tkat the station and

broadcasting transmitter is located on the SUNY

Binghamton Campus, that SUNY Binghamton

holds the FCC broadcasting license on behalf of

the station, that the station facilities, equipment

and operating monies are supplied by SUNY

Binghamton, that the station is inextricably

intertwined with SUNY Binghamton who is an

agent of the State and that the suspension of his

broadcasting privileges and eventual banishment

from the station deprived Plaintiff of his rights

and privileges protected under the 15t and 14th

Amendments of the U.S. Constitution by persons

acting under color of law.

Plaintiff alleges in conjunction with his 1st cause

of action that his “clearance” was a privilege

conferred unto him by persons acting under color

of law and that his right to speak freely without

infringement from persons acting under color of

law is a right protected under the 1st Amendment

of the US Constitution; and that the suspension of

his privilege was an infringement of those rights

protected under the US Constitution by persons

acting under color of law without compelling

interest and on ground contrary to express FCC

policy.

. In conjunction with his 2™4 cause of action, after

Plaintiff returned on June 23, 2007 and after

broadcasting one show, the gencral manager

prevented him from further broadcasting unless

Plaintiff signed an agreement to abide by a

written policy statement of WHRW which places

a 24 ban on profanity and various words which

FCC policy and practice shows is treated as

A44

protected speech under the US Constitution and

allowed to be broadcast within the safe harbor

zone; that said policy action violates Plaintiffs

Constitutionally protected right of free speech by

persons acting under color of law (see also {4

22,27 infra).

. Plaintiff seeks a court declaration that the policy

actions set forth in the 15* and 2"™4 causes of action

and the policy statement set forth in the 2™4 cause

of action are unconstitutional and have deprived

Plaintiff of his free speech rights protected under

the US Constitution; Plaintiff further requests

that said policy as set forth in the 24 cause of

action be preliminarily and permanently enjoined

by injunctive relief; and for compensatory and

exemplary damages against SUNY Binghamton

for allowing the unconstitutional policy to

continue while still providing and maintaining

the facilities, equipment and operating capital for

the continuation of station op: rations, said

unconstitutional policy and_ policy actions

amounting to censorship.

As a First Cause of Action

12. The FCC educational broadcasting license for

WHRW is held by SUNY Binghamton. The radio

station. its broadcast transmitter all of its facilities

and equipment is located on the SUNY

Binghamton campus in a building owned, operated

and maintained by SUNY Binghamton and all of

the WHRW operating capital and monies are

provided for by SUNY Binghamton.

13. On or around March 23, 2006 my broadcasting

“clearance” on the radio station was wrongfully

A45

“suspended” by the station as a person acting

under color of State law and on the facts stated

herein said suspension was and is in violation of

my rights, privileges and immunities protected

under the 1° and 14th Amendments of the U.S.

Constitution.

. During the effective times of this complaint, Lois

B. DeFleur, was and is the President of SUNY

Binghamton (hereinafter referred to as President

DeFleur).

15. I do hereby affirm under penalty of perjury that

attached hereto as Exhibit 1 [Al] is a true and

authentic copy of an October 27, 2005 letter to me

signed by President DeF leur, wherein she refers to

SUNY Binghamton’s “involvement” with the

station in regard to “the license” and “FCC

controls and guidelines’.

17. My privilege to broadcast under the FCC license

is a privilege and property right conferred by the

State and protected under the U.S. Constitution,

which inter alia cannot be revoked or suspended

in terms of 18* Amendment rights under the US

Const. without compelling interest.

18. The stated reason for the suspension regard two

incidents:

(a) Where a “phrase ‘you're not worth shitting on”

was allegedly “played” at 4 am and that these

words allegedly violated station “policy”

(b) And that between the hours of 10 pm and 2 am

| allegedly “played material containing words”

that were “contrary to [the station] rules and

regulations”

A46

19. I do hereby affirm under penalty of perjury that

attached hereto as Exhibit 2 Exhibit 3 and

Exhibit 4 [A79, 82, 83] respectively are true and

authentic copies of the following documents:

(a) March 9, 2006 station letter to me from

Program Director Stefanie Wolf

(b) March 18, 2006 station letter to me from

general manager Richard Bellin

(c) March 24, 2006 station letter to me from

Program Director Stefanie Wolf

These foregoing documents allege as follows:

(1) Exhibit 2, on hearsay, alleges that “the

phrase ‘you're not worth shitting on’ was

played on the air at about 4am” and that

this is allegedly against station policy and

cannot be played ever, and that if this

happens again my show will be cancelled;

Exhibit 3 alleges that between 10 pm and

2am I “played material containing words [I]

knew to be contrary to [the station’s] rules

and regulations’;

Exhibit 4 alleges that on the basis of “two

separate incidents” a hearing was held and

that my privilege was suspended until

“Summer 2007”.

I do hereby request that this court take judicial

notice of the following excerpts from the Federal

Communications Commission policy documents

appearing on the FCC website @

http://www.fcc.gov/eb/oip/FAQ html#TheLaw I do

hereby affirm under penalty of perjury that

A47

Attached hereto as Exhibit 5 [A100-03] is a true

and authentic copy of said excerpts in re obscene,

indecent and profane speech that indecent and

profane speech with the safe harbor zone of 10pm

to 6am is protected and thus allowed to be

broadcast within said safe harbor zone.

I do hereby affirm under penalty of perjury that

attached hereto as Exhibit 6 [omitted] is a true

and authentic copy of the “WHRW station

guidebook” (hereinafter referred to as “the

WHRW~ guidebook” and/or “the guidebook”)

setting forth station policy during the effective

times of this 1*' cause of action; and that said

guidebook with special emphasis on p. 35 43

[A51], reads in part, “I will not ...willfully air

obscenities (as defined by the FCC regulations,

which I have studied and understand)”

As a continuation of the preceding paragraph,

official FCC policy shown in Exhibit 5 and the

WHRW guidebook shows that the established

time of the broadcasts in question fall within the

10 pm to 6 am FCC safe harbor zone wherein

"indecent" and "profane" material is allowed to be

broadcast; in contrast the WHRW_ guidebook

omits the FCC definition of profanity (cf.

guidebook pp 7-8, 44] 4-7 [A16-17]; p 9, 916 [A18];

p22 [A31] in re “station service”) c/. Exhibit 5 /f

[A7] “are there certain words that are always

unlawful” which the FCC answers, “no” that

words “depend on the context presented” and that

that test only applies to broadcasts outside the

safe harbor zone [A7, last J, A8 Jf 1,2].

The foregoing evidence shows that Plaintiff's

suspension of broadcasting privileges was based

on the alleged broadcast of words which occurred

within the FCC safe harbor zone; and if the facts

regarding the broadcasts in question are true

then suspension of Plaintiffs broadcasting

privileges was for broadcasting speech protected

under the US Constitution, which FCC policy as

shown in Exhibit 5 also considers’ speech

protected under law; and that the suspension

ofmy broadcasting privileges at WHRW by

persons acting under color of law was in

deprivation of my right to broadcast protected

speech as a right protected under the U.S

Constitution and that said suspension and the

policy it is based on is in violation of the US

Constitution and law.

Plaintiff apprized SUNY Binghamton President

Lois B. DeFleur of his wrongful suspension by

letter of March 27, 2006 reminding her of her own

University wide 1% Amendment policy [A92-97]

requesting that my privilege and show be

returned with action to correct the

unconstitutional WHRW pohcy but SUNY

Binghamton took no action. | do hereby affirm

under penalty of perjury that attached hereto as

Exhibit 7 [A89-98] is a true and authentic copy

of my same said March 27, 2006 letter to

President Dek leur with proof oi service by U.S.

certified mail receipt number 7099 0010

3488 2996.

As a Second Cause of Action

25. On June 23, 2007 | returned to WHRW as an

apprentice to Elijah Weber-Han and broadcast a

show without interference

On June 30, 2007 1 was told by the new station

manager Mike Saltzman that before | would be

allowed to broadcast, again, | had to sign an

avreement swearing to abide by the stated policy

of the station:

| do hereby affirm under penalty of perjury that

attached hereto as Exhibit 8 [A99] is a true and

authentic copy of the WHRW policy statement

presented to me, which I refused to sign for the

same reasons set forth in 44 20, 22-23 supra

stated above. Additionally said policy statement

confuses and confounds profanity with obscenity

based on definitions it falsely attributes to the

FCC.

Upon arriving home on the morning of June 31,

2007 | received an email from the station

manager Saltzman suggesting that he agreed

with my reasons for not signing his policy

statement yet still maintained his position and by

July 9, 2007 Il was banned from the station,

“indefinitely”. I do hereby affirm under penalty of

perjury that attached hereto as Exhibit 9 [A104]

is a true and authentic copy of an email from

station manager Saltzman declaring me banned

from the station indefinitely,

29. Pleading 4/4; 20, 22-23 and §|§ 8-11 supra again

as if appearing at this point

A 50

30. Plaintiffs basis of damages is (a) the stigma of

being seen in the Press and in the Public eye as a

person who repeatedly broadcast obscene

material when in actuality Plaintiff was being

wrongfully and arbitrarily punished for allegedly

broadcasting material which under the

Constitution and law is protected speech and (b)

monetary investment in music and equipment

purchased for broadcasting usage which may be

proved by documentary evidence and affidavit in

an approximate amount of $2,000.00.

. | request trial by jury

32. Wherefore plaintiff requests that suspension of

his broadcasting privileges and the effectual

revocation thereof and his banishment from

WHRW shall be declared unconstitutional, that

the policy of WHRW as evidenced by the policy

statement introduced herein and policy action(s)

thereon be preliminarily and permanently

enjoined, for $ 250,000.00 in compensatory and

punitive damages, costs, fees and disbursements

reasonable attorney fees pursuant to the equal

access to justice act and any further order and

relief this court deems just and equitable

I hereby affirm under penalty of perjury that the

foregoing is true

Dated: March 18, 2009

THOMAS LAMONT DYNO - Pro se

STATE OF NEW YORK

COUNTY OF BROOME

EXHIBITS

Pages Exhibits Herein

] De Fleur Letter

10/27/05 A79

2 Program Director

3/9/06 A82

3 Genera! Manager

3/18/06 A83

4 Program Director

3/24/06 A88&

w/envelope omit

5 FCC Policy ExcerptsA100-03

6 WHRW Guidebook omit

to President DeFleur

~]

3/27/06 A89-98

le. WHRW

Policy Statement A99

Y (seneral Manager

7/9/07 A104

UNITED STATES DISTRICT COURT

~~

NORTHERN DISTRICT OF NEW YORK

LOLOL OO Dt et mt ml a a Pd Pd el Ot Ol al a Ph Oe Ol Pat Pt Pt et Pd Pl Ph

Thomas Lamont Dyno

Plaintiff Case No. 3:09-ev-313

VS

Lois B. De Fleur — VERIFIED AMENDED

President of SUNY COMPLAINT

Binghamton Acting in her 42 USC §1983

official capacity; WHRW ~~ Hon. Thomas J. McAvoy

FM Radio General Manager

acting in their official capacity

Defendants

STATE OF NEW YORK}

COUNTY OF BROOME}ss

Thomas Lamont Dyno, Plaintiff pro se alleges as

follows:

1.

Jurisdictional Statement

I’m requesting 42 USC §1983 declaratory and

injunctive relief against a continuing broadcast

policy banning indecent and profane speech 24

hrs. a day at the WHRW non commercial

broadcasting station established on SUNY

Binghamton campus; and against the joint action

of campus President acting in her official capacity

under color of law in refusing to ensure that said

policy is 1n comphance with law as required by

NYS regulation: knowingly causing me as a

person refusing to comply with said policy to be

subject to exclusion by WHRW General Manager

(GM) from the State University designated public

forum airwaves open to other members of the

public as prospective broadcasters as enforced by

A53

campus security Is action under color of law in the

abuse of nondelegable authority depriving me of

free speech without due process of law and in

violation of equal protection as rights secured by

US Const. 1st and 14th A, and jurisdiction is

conferred by 28 USC §§ 1331, 1343(3) and (4) and

2201.

Parties

,-l am Thomas Lamont Dyno, Plaintiff pro se, and I

reside at 46 Academy Street, Johnson City New

York, 13790 telephone 607 — 729 — 4039.

The 1st defendant is the President of SUNY

3inghamton, Lois B. De Fleur acting in her

official capacity as a person acting under color of

law.

4. The 2-4 defendant is University employee WHRW

FM Radio General Manager (GM) acting in their

official capacity as a person acting under color of

law.

5. The 1° defendant’s office is located at 4400 Vestal

Parkway East, Vestal, New York in the

Administrative Offices of the Couper Building

and is herein referred to as “the University

President’ or “the President”.

>. The 2d defendant’s office is located in WBO6 of the

Union Bldg on SUNY Binghamton campus, and is

referred to herein as “the GM” or “the station”.

The Amendment In re the Caption

This is the 1s| Amendment of my pro se complaint

and is designed and intended to remove grounds

for jurisdictional dismissal — viz., the originally

named defendants were SUNY Binghamton and

Ab4

WHRW 90.5 FM. Suit against SUNY Binghamton

was barred by the 11t* A, US Const, under the

proviso that individual officers acting in their

official capacity may be sued for prospective relief

under Ex Parte Young doctrine. Under USS Ct

rule, removing the University name from the

caption and adding the University President

acting in their official capacity, obviates said

ground for dismissal.

NYS General Association Law §13, in conjunction

with FRCP 4(h) authorizes suit against an

unincorporated association where the head of the

association or all members are liable by naming

the head of such association in the caption.

Dismissal judgment indicates that the GM is the

head of the alleged unincorporated association.

The GM is a University employee that is misusing

authority delegated by the University, resulting

in my injury in fact, hence the office of GM, acting

in their official capacity, 1s now named in the

caption.

Statement in re Pertinent Governmental

Authority

9. WHRW FM Radio is campus broadcasting facility

owned by SUNY Binghamton who is the FCC non

commercial educational broadcasting licensee

(415 infra)

10. In conjunction with ownership, license and

employment, the University nexus with station

broadcasting policy are by 2 provisions of

governmental authority

(A) FCC regulation §73.503(c) governing said 410

license

“A noncommercial educational KM

broadcast station may broadcast

programs produced by, or at the expense

of, or furnished by persons other than the

licensee, if no other consideration than

the furnishing of the program and the

costs incidental to its production and

broadcast are received by the licensee.

The payment of hne charges by another

station network, or someone other than

the licensee of a noncommercial

educational FM _ broadcast station, or

general contributions to the operating

costs of a station, shall not be considered

as being prohibited by this paragraph”.

G) I was and remain such person and

prospective broadcaster.

(B) SUNY regulation, document #3700 §“h”

Radio Stations, Establishment &

Operation of Noncommercial Broadcast;

“The president of each campus at which

a non-commercial broadcast station is

established is responsible for the

compliance of the station with all

applicable statutes, rules and FCC

policies. The president shall determine

the appropriate administrative and

operational relationships necessary to

assure compliance. Such relationships

should provide for any necessary review

of operations which may be required to

meet the nondelegable responsibility of

the University, as licensee for proper

and sufficient control over programming

A56

with particular reference to the policies

and requirements’ governing such

programming (e.g., obscenity, personal

attacks, lottery information, fraudulent

schemes, equal opportunities for

political candidates, the licensee’s

limitations on identification of programs

produced by, or at the expense of, or

furnished by others)”.

G7) The foregoing factors and regulations entwines

the University and President with station

broadcast and clearance policies.

Defendant GM _ receives remuneration for

managing the station facility and administering

an annual “clearance” exam which broadcasters

must pass in order to be cleared to broadcast.

Clearance is enforced by campus security (418

infra) and under authority delegated to the GM [4

10(A)] supra my _ broadcast clearance was

conferred to me annually under said license (9/9-

10 supra).

. I do hereby affirm under penalty of perjury that

attached hereto as Exhibit 1 [A69-78] is a true

and authentic copy of my letter of 10/3/05 to

SUNY Binghamton quoting on p. 1 thereof, a new

broadcast policy (“Policy I’) introduced by the

GM:

oor

The Following words are never allowed on

the radio: shit, piss, cunt. Cocksucker,

motherfucker, fuck, tits and any other

appropriate words concerning genitalia”

. The foregoing letter was to notify the University:

that Policy I action/enforcement would abridge

Ad57

protected speech and deprive persons including

myself of rights secured under the US Const;

denying me a swipe card, to access the station, as

all other broadcasters are provided, on my refusal

to disclose my social security number (ssn) as a

component of “clearance” is in violation of US

Const equal protection and US law [PL 93-579]

and I requested the University bring said policies

into compliance with law. Discussion of FCC rules

and the safe harbor zone, begins at [A70O]; ssn

disclosure in conjunction with Federal equal

protection on [A74]; coercing broadcasters to air

prerecorded disclaimers regarding obscenity

inside the safe harbor zone are improper (#CC v

Pacifica 438 U.S. 726, note 5 and text) as the

station manager conceded that the FCC only

requires station [Ds 5 minutes before, after or on

each hour [A74-75].

On or around October 27, 2005 University

President Lois B. De Fleur, responded to said

October 3, 2005 letter (§§,12-13 supra) wherein

she declares that University involvement with the

station 1s limited to “issues of the lcense and

[FCC] controls and guidelines” that “any person,

campus or community, is permitted to submit a

proposal to the appropriate department of the

station to do a show” that “many community

members participate in the station and have

shows” the President’s letter does not indicate

any intent to correct Policy I or station policy in

re ssn disclosure and attached hereto as Exhibit

2, [A79] is a true and authentic copy of said

President’s refusal to correct said policies.

15. On or around January 2006 the University

applied for FCC lhcense renewal of the FCC non

commercial educational broadcasting license held

in the name of SUNY Binghamton and attached

hereto as Exhibit 3, [A80-81] is a true and

authentic copy said notice of said application as

appearing on the FCC website.

Facts Regarding Suspension and Revocation of

my “Clearance”

16. On March 9, 2006 the station program director

issued a written notice threatening cancellation of

my show on ground that words “you’re not worth

shitting on” allegedly broadcast at 4am violated

station policy and attached hereto as Exhibit 4,

[A82] is a true and authentic copy of said notice;

On March 18, 2006 the GM suspending my

clearance by written notice alleging that I aired

material between 10 pm and 2 am that violates

station rules and attached hereto as Exhibit 5,

{A83] is a true an authentic copy of said notice;

18. On the evening of March 18, 2006 under

command of the GM and on eye witness account I

was removed from a live on air safe harbor zone

broadcast by campus security who escorted me

from the premises and attached hereto as

Exhibit 6, [A84-A87] is a true and authentic

copy of the campus security report;

On March 23, 2006, my “clearance” was

suspended until the summer of 2007 for speech

allegedly aired in the safe harbor zone and

attached hereto as Exhibit 7, [A88] is a true and

authentic copy of my March 24, 2006 suspension

notice.

A59

On March 27, 2006, I expressly notified

University President Lois B. De Fleur of said

unconstitutional suspension; still, no action was

taken by the University President to restore my

“clearance”, nor to correct Policy I ({]12-13 supra)

and attached hereto, as Exhibit 8 is a true and

authentic copy of my October 27, 2006 letter to

University President Lois B. DeFleur [A89-A98].

On June 23, 2007, on cye witness account I

returned to the station under apprenticeship of

Klijah Weber-Han, I did one safe harbor zone

broadcast; but on returning the next week, the

new GM threatened to prevent me_ from

broadcasting again until I agreed to a new

“WHRW’s policy” and that a true and authentic

copy of said policy statement (“Policy IT’) as

presented to me by the same said, new GM, is

attached hereto as Exhibit 9, [A99] which reads

in part:

“A 24 hour ban of obscenities and profanity

is 1n effect at WHRW. The following are

examples of obscene and profane material:

“Fuck”, “Motherfucker”, “Asshole”, “Shit”,

and other words, phrases or material that

fit the two definitions as defined by the

FCC, the WHRW Program Director or the

WHRW General Manager".

Indecent and Profane Speech: the safe

harbor zone.

2. Under US S Ct rule, indecent and profane speech

are protected under the US Const and under the

compelling State interest rule may only be subject

to the least restriction, and is thus indecent and

A60

profane speech may be broadcast inside the 10 pm

to 6am safe harbor zone: but an all out ban of said

speech is not a least restriction nor a proper

control over obscenity and such all out bans have

been struck down as unconstitutional

abridgments of speech Action for Children’s

Television vu FCC 59 F 3d 1249 cited by US S Ct,

in Fox v FCC.

23. Attached hereto as Exhibit 10, [A100-A103] is a

true and authentic copy of official FCC policy as

appears on their website recognizing’ that

indecent and profane speech is constitutionally

protected and may only be restricted to the hours

of 10 pm to 6am known as the safe harbor zone

where all of my broadcasts occur/occurred.

24. Under the present law as recognized by the FCC,

the execution and enforcement of Policy II (421

supra), which is an express, 24 hour broadcasting

ban, of profanity, and a list of words devoid of

context, which would include “indecent speech", is

an unconstitutional abridgement of protected

speech;

25. On or around July 9, 2007 | was “indefinitely”

banished from station airwaves for refusing to

agree to comply with Policy II (421 supra); and

attached hereto as Exhibit 11 [A104] is a true

and authentic copy of the new GM’s email

declaring my said banishment.

Facts in re Culpable state action and inaction

26. The University broadcasting facility is

established on campus and under NYS law the

University President is expressly responsible to

A61

ensure that broadcasting policy — viz., controls

over obscenity, are proper (410 supra);

t

S

~]

Public broadcasting is protected under the 1° A.

US Const (22 supra) and as conceded by the

University President these airwaves are open to

members of the public for broadcasting their self

produced educational programming (4/414, 10

supra). Under the public forum doctrine (Black's

Law Dictionary, 7 Ed pp 12438 — 44) these

airwaves constitute a designated public forum

and the actions of my suspension and banishment

there from is with out due process of law

Southeastern Promotions Ltd v Conrad 420

U.S. 546 43 L. Ed.2d 448; 95S. Ct. 1239 and is in

violation of equal protection; on the rule

in Freedman vu Maryland, 380 U.S. 51, 58, 85 S.

Ct. 734, 739, 13 L.Ed.2d 649:

(A) Suspension of my clearance (411, 16-20

supra) on ground of speech without prior court

proceeding to establish the speech as obscene is a

prior restraint of speech without duc process of

law by persons acting under color of law.

(B) ] continue to be singled out in discrimination

from other members of the public in my

continuing banishment from said — station

airwaves because | refuse to refrain’ from

broadcasting any profanity or words from a list

which would include indecent speech in the safe

harbor zone is an arbitrary discrimination in

violation of due process and equal protection and

therefore a deprivation of rights secured to me by

the US Const 1° and 14th Amendments.

28.

9Q

The abdication, by the University President of

said responsibility as a duty imposed by NYS law

to ensure that the foregoing station broadcast

policy controls over obscenity (4/21, 12 supra) are

proper [*|10(B)] subjects me to said policy(s) and

causes me to be subjected to equal protection

violations also proscribed under the 14th A. US

Const. (Catlette v US 132 F2d 902, 907)

Public broadcasting in the US of A is only allowed

under license issued by the FCC and the GM

inplementing Policy I suspending my clearance

thereon and then ordering campus security to

enforce that policy against me [A84-A87] did so

in the abuse of delegated authority — ie., the FCC

rules governing the non commercial license

authorizing persons other than the lcensee to

broadcasts self produced programming from the

station [§}10(A)] 1s authority held by the State

Actor, delegated to the GM in the management of

access to the station airwaves, as enforced by

campus security (44/16-18 supra); and

(A) That said policy executed by the GM in

withholding access to and use of said designated

public forum airwaves until a person promises to

surrender their Liberty to broadcast all of the

speech that the law allows is coercion by a person

acting under color of law to encourage a

prospective broadcaster to self censor themselves

and effectively waive their Liberty of speech, or

else be excluded from said designated public

forum airwaves, with refusal enforced by campus

security; and

AbS3

30

(B) ‘The University President in allowing this

arrangement to continue 1s lending the full power,

property and prestige of the University, to said

pohicy(s) (§]21,12 supra) thereby creating the

impression to the public and student body that

said form of censorship is legitimate, rightfully

supported, enforced and protected such that said

action by the GM overtly or covertly “may be

fairly treated as that of the State |Actor]” and

would not and could not have occurred without

her action by inaction (Callette 429 supra cited in

Screws vu US 325 US 91, 126-127 cf Yick Wo 1

Hopkins 118 U.S. 356. 373);

(C) As evidenced by the continuation of these

policies over the course of 38 years under 3

separate GMs that without injunctive reliet

against these said policies they will continue

whether the encouragement is overt or covert

It 1s also an insult to common sense and

credibility to expect any person to beleve that 38

separate college students assuming the position of

GM would willfully, intentionally and knowingly

censor speech and thus violate the rights of

broadcasters and prospective broadcaster as

rights secured under the 18t and 14° Amendment

of the US Const unless they were coerced to do so

by the University or by some other false authority

purportedly acting on behalf of the University

such as this David Hagerbaumer person who

purports to be a haison between the college board

and the station cf Pangburn vu Culbertson 200

F3d 65 ($1983 conspiracy). Complete confidence

or complete indifference that their acts of

censorship shall continue to go with impunity,

A64

without some kind of assurance that no adverse

consequences would result is incredible. So what

eclernent of education is furthered in allowing that

situation to continue? There is none and there is

no necessity under any law or any FCC rules, for

these policies (§421,12 supra) to continue unless

to unconstitutionally censor protected speech; and

the University President under the rule of Wood

vw Strickland 420 US 308 is expected to know

that and that said policies are unconstitutional:

which is most likely why she is assigned

nondelegable responsibility under NYS regulation

to ensure that the station broadcast policy is in

complhance with the law; nonetheless protected

speech is being unconstitutionally abridged at

this State University broadcasting facility

without compelling State interest nor any shown

nor even asserted as the law otherwise requires

The only way said policies may continue under

the defense of the NYS AG and NDNY judgment,

is if a compelling interest of NYS is shown: but as

it stands there is no reason to allow persons

acting under color of law to use the full coercive

power of the State to leave a person injured in

fact with no reeourse against prima facie

censorship than to sacrifice a year of my life and

several thousands of dollars in the attempt to

vindicate these cherished rights secured by the

US Const. while the Federal courts slam both

doors in my face and drop the bar.

I demand trial by Jury and whatever costs, fees

expenses, restitution may be available to me

A6

-

33. And lastly, declaring a difference amongst the

Circuit courts on this issue: extending by

implication the 11 A, US Const., to bar 42 USC

§1983 damage relief against persons acting in

their official capacity when employed by a State

University is a violation of the strict constriction

doctrine depriving me of equal protection rights

as an equal sovereign without subjects with a

competing interest where the State is still

required under Ex Parte Young doctrine to show

a compelling State interest to even claim any

interest at all: then on special damages to me

resulting from the willful intentional and

knowing continuation of said policies in violation

of the US Const, I demand $1, 000,000.00 in

exemplary damages with my basis for

compensatory damages in the amount of

$_ .oo0 for the investment in_ broadcast

equipment that has depreciated in value because

it has no other use and with said quantum to be

proven on trial.

Wherefore plaintiff requests judgment as follows (1)

a declaration that by virtue of the 11% A. US

Const., that the 2d Circuit bars damage relief

against a State University or person acting in

their official capacity on behalf thereof, then there

can be no Res judicata or collateral estoppel bar

against such action if pursued in the NYS Court

of Claims under NYS law, as the State have

waived immunity under the NYS Court of Claims

Act or else for the aforesaid award of damages in

said amount of $1,000,000.00; and (2) that the

broadcast policies of the station imposing a 24

hour ban of indecent and profane speech, as

A66

implemented executed and enforced against

broadcasts inside of the safe harbor zone shall be

declared unconstitutional and permanently

enjoined by prohibitory injunctive relief; (3) that

my clearance to broadcast inside the safe harbor

zone during the summer shall be restored; and (4)

upon my one time proof of identity by

presentation of my valid U.S. passport that I shall

then enjoy equal unimpeded access to the

broadcasting facilities by appropriate person or

persons providing to me a swipe card or key to be

kept in my possession at all times the same as

other persons with access have; and (5) that |

shall also be awarded additionally, costs, fees,

disbursements and reasonable attorney fees

pursuant to 42 USC 41988 or under any authority

which so allows and (6) for any further order and

relief which to this court seems just and/or

equitable.

I hereby affirm under penalty of perjury that the

foregoing is true

Dated: January 15, 2010

THOMAS LAMONT DYNO - Pro se

Sworn to before me this 15» Day

Of January 2010

A67

Exhibit List for Amended Complaint

Exhibits Date Description Herein

10/3/05 My letter to SUNY

Binghamton A69-A78

10/27/05 University President’s

response A79

1/2006 FCC notice A80-81

3/9/06 Warning from

Program Director A82

3/18/96 Notice from GM A83

3/18/06 Campus Security

Report A84-87

3/24/06 Notice of Suspension A88&

3/27/06 Letter to U. President

inre My suspension A89-98

6/2007 Policy Statement A99

Official FCC policy

from their website A100-03

7/9/07 Email GM notice of

banishment A104

Thomas Lamont Dyno

46 Academy Street

Johnson City. New York 13790-1519

Telephone: (607) 729-0839

October 3, 2005

Binghamton University College Board of Trustees

Binghamton University

P.O. Box 6000

Binghamton, New York 13902-6000

Policy of WHRW, which the College Board of

Trustees holds the Broadcasting License to

Is in Violation of the United States Constitution and

Misrepresents the Law

This is a follow up to my notice mailed to you and

hand delivered to the WHRW General Manager

dated September 16, 2005: regarding my allegations

that the censorship policy of WHRW is

unconstitutional, misrepresents the law and the

actual policy of the FCC.

My avowed aim is to bring your free format WHRW

radio station out of the Eisenhower dark ages and

into the new millennium -viz., that the policies of

said station are conformed to established law; rather

than based on misrepresentations thereof: used to

mislead and intimidate college students by exploiting

their naiveté and in ruthlessly exploiting the good

graces of this University in using its broadcasting

license to convey misrepresentations to the general

public while censoring speech protected under the

United States Constitution.

In light of the facts presented herein and in order to

maintain the integrity of this University and its

A69

express policy regarding Free Speech’, 1h is now

imperative that WHRW shall be ordered by the

license holder to conform it’s censorship policy to

established law.

In 1955 the late Poet Allen Ginsberg authored

“How!” which is a work expressing his life under the

Fisenhower/McCarthy era, where persons were

forced to abandon any aspirations beyond the blasé

and mundane or else forced to seek refuge in

Greenwich Village or San Francisco to live amongst

other ‘undesirables’ and _ still face persecution,

arbitrary segregation and general social

abandonment. Soon after publication, Allen’s work

was challenged as obscene on the same ground used

by this station to censor similar works of art. The

following is WHRW station policy [quoted from a

paper issued by WHRW entitled “WHRW PA Rules --

Fall 2005” 11

“FCC guidelines and other’ Broadcasting

rules.... 3. ... The Following words are never

allowed on the radio: shit, piss, cunt,

cocksucker, motherfucker, fuck, tits and any

other appropriate words concerning genitalia”.

The following is the express policy of the FCC

available on the World Wide Web”:

21. Obscenity and Indecency. it is a violation of

federal law to broadcast obscene, indecent or profane

language. Obscene speech is not protected by the

First Amendment and cannot be broadcast at any

time. To be obscene, material must meet a three

prong test: (1) an average person, applying

contemporary community standards, must find that

the material, as a whole, appeals to the prurient

A70

interest; (2) the material must depict or describe, in a

patently offensive way, sexual conduct specifically

defined by applicable law and (3) the material, taken

as a whole, must lack serious literary, artistic,

political, or scientific value.

The Commission has defined broadcast indecency as

“language or material that, in context, depicts or

describes, in terms patently offensive as measured by

contemporary community’ standards for’. the

broadcast medium, sexual or excretory organs or

activities.” Because indecent material is protected by

the First Amendment, it cannot be banned entirely.

It may, however, be restricted to avoid its broadcast

during times of the day when there is a reasonable

risk that children may be in the audience. Thus,

broadcasts that fall within the definition of indecency

and are aired between 6:00 a.m. and 10:00 p.m. are

subject to indecency enforcement action.

Regarding profanity, key court decisions have

defined it as “words importing an imprecation of

divine vengeance or implying divine condemnation,

so used as to constitute a public nuisance.” Thus, the

courts have severely limited the FCC’s ability to take

action in this area”.

In 1956 “Howl” was formally declared by a Federal

Court to not be obscene and in point of law the work

is protected speech: therefore there is no legal reason

why a sound recording of “Howl” cannot be aired in

it’s uncensored entirety on WHRW at the very least

after 10 pm and before 6 am: but according to

present station policy, vigorously defended by the

General Manager and several outspoken supporters,

said work cannot be aired unless various words are

A71

bleeped out. Here 1s a web-link to “Howl”

https://notes.utk.edu/greenburg/0/6f7dd8b9270db5c5

85256d0d001e0a93?OpenDocument

Here is a link to material presenting a_ brief

description of the publication of “Howl’, by the

publisher Lawrence Ferlinghetti, it’s challenge in

court as obscene and judgment thereon

http:www.pbs.org’/ewshour/bb/entertainment/july-

decO2/ferlinghetti 12-27. html

If “Howl” can be aired, there is no reason Lou Reed

songs such as “The Last Great American Whale” in

its uncensored entirety cannot be aired as well.

In my attempt to orally move the adamant general

manager, I attempted to explain the point of law that

words are not obscene per Se, as is obvious from the

so called 3 prong test quoted above. | used the

example of some kid mindlessly saying ‘oh shit I

fucked this up’ into the broadcast microphone and

that this might be similar to distinctions made

between nudity used to convey an intended form of

expression and private nude sun bathing which

generally isn’t considered to be any type of intended

expression at all.

The principle distinction/determinative (standard) is

the same in the law of nuisance and zoning; the

latter being an extension of the law of nuisance.

Former US Supreme Court Justice Sutherland said

{paraphrase} in Euclid v Ambler Realty 272 US

365 @387-388 that you have to consider the thing in

it's circumstances and locality and not in the

abstract. He uses the example of a pig in the parlor

instead of the barnyard’.

A72

So the aforesaid mindless verbiage broadcast -e.g.,

‘no fucking ass I just broke the cock sucking head set’

is arguably unprofessional conduct and not actually

political speech or expression like laying about nude

in your back yard would not appear to constitute any

particular form of intended expression; and I think a

good educational distinction to be taught in terms of

broadcasting. However, the point here is that it’s not

the words per se but their usage and circumstance -

e.g., laying bareassed on your front yard instead of in

your backyard.

It is a misrepresentation to blame the FCC for the

unconstitutional policy of WHRW. The clear meaning

of the FCC policy quoted above, is if something is not

obscene but appears to fall within the FCC

“indecency” guidelines then that the material may at

the very least be broadcast between 10 pm and 6 am

but under no circumstances can you or the people

running the station in legally censor or mutilate it

with bleeps or otherwise during said hours.

In a private letter I sent to the General Manager, |

also pointed out that “tits” aren’t legally considered

to be a sexual organ and therefore this particular

word doesn’t even fall under any aspect of the

foregoing FCC guidelines at all yet he insists the

word is obscene and may never be broadcast in a

sound recording or said at any time over the air. His

position has no rational basis in law or FCC policy.

Here is the link to a case I attempted to show him

regarding Public Nudity and protected expression ff .

last two pars of concurring opinion and footnote 3

http://www.law.cornell.edu/nyctap/search/display.ht

ml?terms=nudity&url=/nyctap/192_0160.htm

A73

A pragmatic beginning rule might be ordering

the station to allow material ruled not obscene to be

aired between 10 pm and 6 am, such as “Howl”. This

would potentially apply to W.S. Burroughs and

Lenny Bruce material. Even Governor’ Pataki

posthumously pardoned Lenny Bruce at the end of

2003 in re the 1970 court reversal of Bruce’s 1964

obscenity conviction”

There are two additional aspects to this matter,

the first regarding violation of U.S.

Constitutionally protected equal protection § in

conjunction with my _ privilege of broadcasting

conferred unto me upon my passing the WHRW

station administered FCC clearance exam. ‘The

station refuses to give me a swipe card like everyone

else has who have been granted broadcasting

privileges: allowing them to gain free and unimpeded

access to the building and the station while I can’t

because I refuse to disclose my social security

number. The General Manger who administered said

test knows whom I am, where I live and that I

passed said test. You and the station have all of the

information you need to have me arrested or serve

upon me a civil summons. There is no need for you or

WHRW to have my social security number!’. [|

passed the test and 1 want my swipe card.

Lastly, the station policy of forcing DJ’s_ to

immediately read a disclaimer in the event someone

accidentally allows “tits”, “shit”, &c to be aired on a

sound recording regardless of whether the material

is protected is a serious interference and intrusion

with/of protected speech. It is an unnecessary

intrusion, distraction from and derogation of the

A74

work; and that policy ought to be immediately

abolished. If the station wants to have a disclaimer

policy, then it ought to be limited to the beginning of

a show where it is the least intrusive.

For so called “Free Format” radio ld never imagine

so many impositions placed upon the _ person

attempting to broadcast; nor an atmosphere so

chilling in regard to the U.S. Constitution, free

speech and protected works of art. As_ recently

admitted by the present General Manager, all that is

required is that the station shall be identified on the

hour; yet all of these foregoing policies are enforced

with threats to revoke a DJ’s “clearance” .-i.e.,

knuckle under and submit or we don’t let you in.

Very easy to enforce against me since I have to be let

in by some other person than myself and oftentimes

in Summer or on Winter Holidays end up spending

considerable time waiting outside for someone to

happen by and let me in, particularly when no one

answers the phone or no onc is at the station. To

show you how thoroughly arbitrary this policy

actually is, three separate people from security let

me into the station, two of which never knew the

station existed and another shocked that I had no

other means of obtaining access. Hence, punishment,

for refusing to disclose my social security number 1s

having me walk across the quad to get a key from

security or wait for security to come by to let you in.

To whom do I click my heels and Heil? Or is it heel?

So nice to feel so ... welcomed. Is that your intent?

When the Power of Cruelty obfuscated the Power of

Love at the beginning of the last century we

eventually experienced the phenomenon of the so

called Bohemians, those that went to Paris in the

A75

attempt to live a hfe free from Victorian repression;

in the United States, the Beats, who had no choice

but to live in Greenwich Village or San Francisco for

similar reasons. These people created their works in

the most squalid conditions and against the greatest

odds of accomplishing anything. “Howl” is a work of

art depicting and expressing that prospective of the

Eisenhower and McCarthy era by one who lived and

observed it, the Poet/photographer of the Beats,

Allen Ginsberg.

Sound recordings of these works as well as those of;

D. H Lawrence, Joyce, Henry Miller &c are in the

WHRW Library. They are there to be played in their

entirety not mutilated with bleeps hke Ed Meese

putting little black things over human body parts

depicted in marble. To now hide these works away,

so that Eisenhower/McCarthy Era repression may be

necromancized by Conservatives is the allegorical

equivalent of stomping on the hearts and souls of

these various artists, reserving their works for the

privileged few to whom nothing in a plutocracy is

censored; and obfuscating from the Public at large

and student alike the unnecessary strife that those

other daring few, endured and overcame to show us

what they saw, what they lived and experienced so

that we could taste and feel those parts of life

otherwise impossible for us to ever know.

Therefore, if the 15* Amendment of QOur US.

Constitution is a component part of Binghamton

University’s policy in re education then it cannot be

set aside in conjunction with the WHRW radio

station to which you hold the broadcasting license.

Consequently, the reasonable person of average

sensibilitics has to ask themselves: (1) Is the College

A76

Board of Trustees, intention to show young people

and the community through stratified coercion,

abuse of power and misrepresentation how they must

knuckle under and submit to tyranny. Like those

that joined in on Hiaitler’s book burning or the

destruction of modern art; or (2) do you want to

enrich the lives of students and the community by

presenting to them the rest of human life and

experience as to create well rounded individuals

capable of making serious far reaching social

decisions in this Nation and other parts of the

World? Principiis Obsta:

October 3, 2005: Thomas Lamont Dyno

Broome County, NY 46 Academy Street

Johnson City, New York

13790-1519

607-729-0839

A copy of this notice shall be forwarded to the

NYCLU and the WHRW General Manager.

' BINGHAMTON UNIVERSITY: The Report of the

President's Commission on Free Speech and

Academic Freedom Executive Summary May 1992

http://www.binghamton.edu/home/ Llibraries/freespeec

h.html#members

http://ombudsman.binghamton.edu/freespeech. htm

' http://www. fece.gov/eb/forms.ifcc 100. htm]

http://www.fec. Gov/eb/broadcast/opi. htm]

http://www. fec.gov/parents/content. htm]

http://www.law.umkc.edu/facultv/projects!ftriais/bruc

eibruceaccount. htm!

A77

http://www.law.seattieu.edu/fachome/skover/trialsof]

ennybrucc/

http://www.lbrary.ucla.eduilibraries/specialibeats./fa

ithful. htm

iv Nor their friends in local government or elsewhere,

as to gain access to bank, brokerage accounts, how

many cell phones, hand guns, false teeth, moles

vencreal diseases or tests theretore | may have, had

&C.

BINGHAMTON UNIVERSITY

State Universily of New York

PO Box 6000

Binghamton, New York 13902~6000

OFFICE OF THE PRESIDENT

607-777-2131, FAX 607-777-0533

October 27, 2005

Mr. Thomas Lamont Dyno

46 Academy Street

Johnson City, NY 13790-1519

Dear Mr. Dyno:

Thank you for your letter of October 3, 2004 [sic]

regarding WHRW, our campus radio station.

Please be advised that the University’s involvement

with WHRW is limited to issues of the license and

Federal Communications Commission (FCC) controls

and guidelines. All programming is decided by the

WHRW Board of Directors and Program Director

The Station Manager is responsible for the overall

operation of the station. As such, the University

Administration has no role in determining content or

structure of the programming.

Please also be advised that any person, campus or

community, is permitted to submit a proposal to the

appropriate department of the station to do a show.

It is my understanding that many community

members participate in the station and have shows

in addition to our students. If you are interested in

submitting ideas for a show or other participation,

please contact WHRW directly.

Sincerely,

Lois B. DeFleur - President

A179

PUBLIC NOTICE

Federal Communications Commission

445 Twelfth Street SW

Washington, D.C. 20554

News media information 202 / 418-0500 Recorded

listing of releases and texts 202 /418-2222

REPORT NO. 26160 Broadcast Apphcations

1/27/2006

STATEFILE NUMBERE/P, CALL LETTERS

APPLICATION AND LOCATION, NATURE OF

APPLICATION

FM STATION APPLICATIONS FOR RENEWAL

ACCEPTED FOR FILING

NY BRED-20060124AAQ E

WHCL-FM 68224

88.7 MHZ

TRUSTEES OF HAMILTON

COLLEGE

NY, CLINTON

Renewal of License.

NY BRH-20060124ACA E

WCLX 72034 FE

102.9 MHZ

WESTPORT BROADCASTING

NY, WESTPORT

Renewal of License.

NY BRH-200601 24ACW E

WIII 9427

99.9 MHZ

CITADEL BROADCASTING COMPANY

NY, CORTLAND

A8O

Renewal of License.

NY BRH-20060124ADY E

WJZR 49193

105.9 MHZ

NORTH COAST RADIO, INC.

NY, ROCHESTER

Renewal of License.

NY BRED-20060124AJW E

WHRW 63105

90.5 MHZ

STATE UNIVERSITY OF NEW

YORK AT BINGHAMTON

NY, BINGHAMTON

Renewal of License.

WHRW 90.5 FM

Binghamton University Box 2000 Binghamton, NY,

19302-6000

Office 607 777 2139 Fax 607 777 4958

March 9, 2006

Tom Dyno,

It has been brought to my attention that the phrase

“you're not worth shitting on” was played on the air

at about 4 AM on Sunday March 5, 2006. This is

against WHRW policy and therefore, absolutely

cannot be played EVER.

The existence of WHRW is made possible by the

dedication of its volunteer DJs, but that means that

everyone must take their responsibilities to the

station seriously to ensure that the station complies

with all FCC rules and regulations.

As a cleared WHRW DJ, you have been taught and

have taken a clearance test regarding the FCC

regulations as well as our station rules. I consider

this a warning. However, if

This text is long and has been trimmed here. Open the source document for the complete record.