# Petition for Writ of Certiorari — Dyno v. SUNY Binghamton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1818%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 560 U.S. 906 ## Text \ 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 ¢ 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 Al] 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 Al12 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 Al13 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 Al4 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. Al15 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”). A16 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. Al7 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 Al18 “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.® A20 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! A22 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.”). A27 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 Pol [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1818%3A1. Public record. Not legal advice.