Opinion
23 Civ. 5599 (DEH)
07-23-2024
SISTER E. JONES-BEY, Plaintiff, v. SKARBO STANISLOV, et al., Defendants.
OPINION AND ORDER
DALE E. HO, UNITED STATES DISTRICT JUDGE:
In this action, Plaintiff Sister E. Jones-Bey (“Plaintiff”) alleges that Defendants Skarbo Stanislov, Carlos de la Rosa, and Samer Nasser (“Defendants”) violated her constitutional rights by denying her city press credential, or Standard Press Card, application (“press pass”). Before the Court is Defendants' motion to dismiss Plaintiff's claims. For the reasons discussed herein, Defendants' motion is GRANTED.
See ECF No. 23.
MATERIALS CONSIDERED
Generally, “[i]n adjudicating a [Rule 12 motion], a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Nonetheless, “[w]hen the complaint is drafted by a pro se plaintiff,” courts may consider certain additional materials “to the extent that [those materials] are consistent with the allegations in the complaint.” For instance, courts may consider a plaintiff's opposition brief as supplementing her pleadings. Courts may also consider “documents that a pro se litigant attaches to h[er] opposition papers, . . . and documents either in the plaintiff's possession or of which the plaintiff had knowledge and relied on in bringing suit.”
Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999). All references to Rules are to the Federal Rules of Civil Procedure. In all quotations from cases, the Court omits citations, alterations, emphases, internal quotation marks, and ellipses, unless otherwise indicated.
Rivera v. Westchester Cnty., 488 F.Supp.3d 70, 76 (S.D.N.Y. 2020).
See Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014); see also Kiss v. Torres, No. 21 Civ. 10391, 2024 WL 1210941, at *2 (S.D.N.Y. Mar. 19, 2024) (“Because Plaintiff is proceeding pro se, the Court will [] consider the factual assertions raised for the first time in h[er] Opposition briefs to the extent they are consistent with the Complaint.”).
Rivera, 488 F.Supp.3d at 76.
With these guiding principles in mind, the Court considers materials outside of Plaintiff's pleadings in adjudicating Defendant's motion. Specifically, the Court considers allegations raised in Plaintiff's Opposition, as well as the following attachments to Plaintiff's Opposition: (1) a letter sent to Plaintiff notifying her of her denial (“May 16 Letter”), and (2) an Office of Administrative Trials and Hearing (“OATH”) notice, dated May 25, 2023 (“May 25 Notice”).
Pl.'s Opp'n to Def.s' Mot. to Dismiss (“Pl.'s Opp'n” or “Opposition”), ECF No. 35.
See ECF No. 35-1 at 15-17. Page numbers are in reference to ECF-stamped numeration.
See id. at 3-4.
BACKGROUND
A. Statutory Framework
In New York City, the Mayor's Office of Media and Entertainment (“MOME”) is vested with “the sole authority to issue, suspend and revoke press credentials.” Among other requirements, an applicant for a press pass “must submit six (6) or more articles, commentaries, books, photographs, videos, films, or audios published, broadcast, or cablecast within the twenty-four (24) months immediately preceding the Standard Press Card application, sufficient to show that such applicant covered, in person, six (6) or more events occurring on separate days[.]”
N.Y. Code § 3-119.4.
N.Y.C., N.Y., Rules, Tit. 43, § 16-03(e).
B. Factual and Procedural History
As discussed supra, the following facts are drawn from the Complaint, as supplemented by Plaintiff's Opposition and attachments, and are assumed true for the purposes of resolving this motion.
See Buon v. Spindler, 65 F.4th 64, 76 (2d Cir. 2023); Kiss, 2024 WL 1210941, at *2 (reviewing a pro se plaintiff's opposition brief); Rivera, 488 F.Supp.3d at 76 (reviewing attachments to a pro se plaintiff's opposition brief).
Plaintiff is a reporter and investigative journalist for a self-published newsletter entitled, “The Playhouse Chronicle.” Defendants are employees of MOME. On or around April 7, 2023, Plaintiff submitted a press pass application to the Press Credentials Office (“PCO”) of MOME. On or around April 27, 2023, May 1, 2023, and May 5, 2023, the PCO sent Plaintiff notices informing her of various deficiencies with her press pass application that rendered it incomplete.
Compl. 6, ECF No. 1.
Id. at 5.
See May 16 Letter at 15.
See id. at 16-17.
On May 16, 2023, upon determining that Plaintiff failed to cure deficiencies with her application and that Plaintiff's press pass application therefore failed to meet eligibility criteria, the PCO denied Plaintiff's application. The PCO informed Plaintiff of her right to appeal the denial in a hearing before the OATH within sixty-five days. On or around May 16, 2023, Plaintiff appealed the PCO's denial of her press pass application by submitting a request for a hearing before the OATH. On or around May 25, 2023, the PCO scheduled the hearing for July 12, 2023.
See id. at 3, 17.
See id. at 17.
See May 25 Notice ¶ 4.
See id. ¶ 5.
On June 29, 2023, Plaintiff filed suit, alleging violations of her free speech and due process rights. On December 1, 2023, Defendants filed a motion to dismiss, which is now fully briefed before the Court.
See Compl. 6.
See ECF No. 23.
LEGAL STANDARDS
It is well-established that “[p]ro se complaints must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Additionally, the following standards apply to this case.
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013).
A. Rule 12(b)(1)
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” On a Rule 12(b)(1) motion to dismiss, the Court “accept[s] as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.”
Collins v. Pearson Educ., Inc., No. 23 Civ. 2219, 2024 WL 895316, at *2 (S.D.N.Y. Mar. 1, 2024).
Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016).
B. Rule 12(b)(6)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” “In assessing the complaint, [a court] must construe it liberally, accepting all factual allegations therein as true and drawing all reasonable inferences in the plaintiffs' favor.” However, the court must disregard any “conclusory allegations, such as ‘formulaic recitations of the elements of a cause of action.'” “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Sacerdote v. N.Y. Univ., 9 F.4th 95, 106 (2d Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Id. at 106-07.
Id. at 107 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Twombly, 550 U.S. at 555 (quoting Fed.R.Civ.P. 8(a)(2)).
C. Rule 15
“Although district judges should, as a general matter, liberally permit pro se litigants to amend their pleadings, leave to amend need not be granted when amendment would be futile.”“Where the problems with a claim are ‘substantive' rather than the result of an ‘inadequately or inartfully pleaded' complaint, an opportunity to replead would be ‘futile' and ‘should be denied.'”
Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 633 (2d Cir. 2016).
In re Sanofi Sec. Litig., 87 F.Supp.3d 510, 548-49 (S.D.N.Y. 2015) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)), aff'd sub nom. Tongue v. Sanofi, 816 F.3d 199 (2d Cir. 2016).
DISCUSSION
The Court construes the Complaint as bringing two sets of claims. First, Plaintiff alleges that Defendants “[u]nlawfully denied [her] application for a press pass although [she] complied with their request for videos and photos taken during [her] work as a[] reporter and investigative journalist.” The Court construes this as a challenge to the denial of Plaintiff's press pass application by MOME on various grounds, including under the relevant provisions of the New York City Code, and under the U.S. Constitution. Second, Plaintiff alleges that “[t]he rule being applied is appearing as unconstitutional on its face,” and suggests that hearings before the OATH “hinder due process.” The Court construes this as a facial constitutional challenge to the validity of the press pass application process, as codified in New York City Code. Defendants move to dismiss the claims regarding MOME's denial of her application for lack of subject matter jurisdiction under Rule 12(b)(1), and the facial constitutional claim to the press pass application process for failure to state a claim under Rule 12(b)(6). For the reasons discussed herein, the Court grants Defendants' motion.
Compl. 6.
Id.
A. Plaintiff's Claims Regarding MOME's Denial of Her Press Pass Application
For the reasons discussed herein, Plaintiff's challenge to MOME's decision to deny her press pass application is dismissed for lack of subject-matter jurisdiction, because it should have been brought in New York state court under Article 78 of the New York State Civil Practice Law and Rules (“Article 78”).
“To determine whether Article 78 applies to a given dispute, a reviewing court must ‘examine the substance of the action to identify the relationship out of which the claim arises and the relief sought.'” “An Article 78 proceeding is the proper vehicle to determine whether the law has been lawfully applied, or the validity of certain government acts pursuant to a valid statute, rather than a vehicle for challenging the validity of a statute itself.” “Rulings of administrative agencies can ordinarily be reviewed only in proceedings under . . . [A]rticle 78.”Indeed, courts have repeatedly held that claims “fundamentally premised” on the contention that an administrative determination was “wrongful” must be brought under Article 78.Proceedings under Article 78 can only be heard in New York State Supreme Court.
Bldg. Indus. Elec. Contractors Ass'n v. City of New York, No. 10 Civ. 8002, 2011 WL 3427138, at *14 (S.D.N.Y. Aug. 5, 2011) (quoting Solnick v. Whelan, 49 N.Y.2d 224, 229 (1980)), aff'd, 678 F.3d 184 (2d Cir. 2012).
Id.
People v. Liden, 969 N.E.2d 751, 751 (N.Y. 2012).
Pagan v. Bd. of Educ., 868 N.Y.S.2d 616, 330 (App. Div. 2008); see also Lawtone-Bowles v. City of New York, No. 21 Civ. 5620, 2021 WL 3773641, at *3 (S.D.N.Y. Aug. 23, 2021) (“A litigant who disagrees with the final decision of an administrative agency of the City of New York can challenge that decision in . . . an ‘Article 78 proceeding'- which is ‘a streamlined process for challenging the determinations of . . . administrative agencies.'”).
See C.P.L.R. § 7804(b).
Plaintiff alleges that in denying her press pass application, “defendants ha[ve] implemented unconstitutional practices based on their own biases and prejudices.” This claim goes to “whether [MOME's] determination was made in violation of lawful procedure, was affected by error of law or was arbitrary or capricious or an abuse of discretion.” “Although Article 78 courts are courts of limited jurisdiction and may not hear a general constitutional challenge to a law or regulation, they may entertain claims [like Plaintiff's] that the application of a rule is unconstitutional.” Accordingly, “[a]n Article 78 proceeding is the proper vehicle” to raise Plaintiff's claims. The Court therefore joins “[a] number of [other] district courts [that] have dismissed cases brought in federal court that should have been brought to State Supreme Court as an Article 78 proceeding.”
See Compl. 5.
Latino Officers Ass'n v. City of New York., 253 F.Supp.2d 771, 779 (S.D.N.Y. 2003).
Bldg. Indus. Elec. Contractors Ass'n, 2011 WL 3427138, at *14.
Id. (citing Brown v. Tomcat Elec. Sec., Inc., No. 03 Civ. 5175, 2007 WL 2461823 at *3 (E.D.N.Y. Aug. 27, 2007)) (“New York law vests jurisdiction over Article 78 proceedings solely in the state courts.”); see, e.g., Blatch v. Hernandez, 360 F.Supp.2d 595, 637 (S.D.N.Y. 2005) (“This claim must be dismissed for lack of subject matter jurisdiction, as New York State has not empowered the federal courts to consider such claims.”); Cartegena v. City of New York, 257 F.Supp.2d 708, 710 (S.D.N.Y. 2003) (“State law does not permit Article 78 proceedings to be brought in federal court, and hence I conclude that I do not have the power to exercise supplemental jurisdiction over [plaintiff's] Article 78 claims.”).
In her Opposition, Plaintiff does not deny that her claims should have been brought to the State Supreme Court as an Article 78 proceeding. Instead, she states that “Defendants did not file an Article 78 proceeding.” But it is not for a defendant to bring a plaintiff's claims under Article 78; a plaintiff must do so, and must file them in New York State Supreme Court.
See Pl.'s Opp'n 2.
As “New York State has not empowered the federal courts to consider [Article 78] claims,” this Court must dismiss Plaintiff's challenge to MOME's administrative determination for lack of subject matter jurisdiction, without prejudice to refiling in state court. To be clear, and without expressing an opinion one way or the other as to the ultimate merits of her claims, the Court's Order dismissing this case does not prohibit Plaintiff from re-filing her claims challenging the denial of her press pass application through an Article 78 proceeding in New York State Supreme Court.
Blatch, 360 F.Supp.2d at 637; see also Cartagena, 257 F.Supp.2d at 710 (“The Article 78 proceeding is a ‘novel and special creation of state law.'”).
Because the Court grants Defendants' Rule 12(b)(1) motion on these grounds, it does not address Defendants' alternative arguments on ripeness, see Def.s' Mem. of L. in Supp. of Mot. to Dismiss (“Def.s' Br.”) 8, ECF No. 25, and administrative exhaustion, see id. at 7 n.5.
The Court notes that there is a four-month statute of limitations attached to any Article 78 claim, though a plaintiff may avoid the time limit on her claims if she is able to allege “evidence of fraud, misrepresentation or promises by respondent which prevented [her] from timely commencing” the proceeding before the state court. See Saferstein v. Lawyer's Fund For Client Prot., 748 N.Y.S.2d 438, 440 (2002).
B. Plaintiff's Facial Constitutional Claim
Plaintiff asks the Court to find that “the Rules applied . . . were unlawful and A Violation of First Amendment of the United States Constitution,” and to hold that “[t]he rule being applied is appearing as unconstitutional on its face.” The Court construes this as a facial constitutional challenge to the City's rules regarding press passes. Plaintiff's challenge fails because she offers no facts or argument regarding the First Amendment or other constitutional provision.
Compl. 6, 7.
“Allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which plaintiff complains are insufficient as a matter of law.” That is the case here, where Plaintiff's Complaint is devoid of any factual allegation or any non-conclusory argument as to how the press pass application process purportedly violates the First Amendment or any other constitutional provision.
S&R Dev. Ests., LLC v. Bass, 588 F.Supp.2d 452, 460 (S.D.N.Y. 2008) (citing Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978)).
See generally Compl.
There can be no doubt “that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Nonetheless, the Court's “duty to liberally construe [] [P]laintiff's complaint is not the equivalent of a duty to re- write it.” “[A] formulaic recitation of the elements of a cause of action will not do.” “[E]ven pro se plaintiffs' claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a right to relief above the speculative level.” Plaintiff does not raise her right to relief above the speculative level here, where she raises no fact and no argument in support of her assertion that the rules applied by Defendants were unconstitutional.
Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020).
Geldzahler v. N.Y. Med. Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009).
Twombly, 550 U.S. at 555.
Walker v. Kosann, No. 23 Civ. 4409, 2024 WL 922642, at *7 (S.D.N.Y. Feb. 16, 2024), report and recommendation adopted, 2024 WL 923314 (S.D.N.Y. Mar. 4, 2024).
The Court concludes that to the extent Plaintiff challenges the facial constitutionality of the City rules relating to press credentials, Plaintiff fails to allege any grounds to support her entitlement to relief. Her constitutional challenge is therefore dismissed.
C. Rule 15
“Generally, leave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that [s]he has a valid claim.”Here, Plaintiff has not requested leave to amend, and therefore has not identified how further amendment would cure deficiencies with her pleadings. At any rate, amendment would be futile here.
Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000).
See id.
First, the problems with Plaintiff's challenge to MOME's decision to deny her press pass application are substantive, and not merely the result of “inartfully pleaded” allegations. In other words, even if the Court were to grant Plaintiff leave to amend, she would not be able to allege facts demonstrating that the Court may assert subject-matter jurisdiction over her claims (because those claims must, as a matter of law, be raised in state court). Leave to amend is therefore appropriately denied.
In re Sanofi Sec. Litig., 87 F.Supp.3d at 548-49; see also discussion above.
See Gross v. Intratek Comput. Inc., No. 22 Civ. 7440, 2023 WL 144129, at *3 (E.D.N.Y. Jan. 10, 2023) (noting that “[w]here a complaint has been dismissed for lack of subject matter jurisdiction, denial of leave to amend on the basis of futility may be appropriate,” and denying pro se plaintiff leave to amend “given that there is no basis to invoke this Court's subject matter jurisdiction”).
Second, Plaintiff provides no basis to conclude that she could amend her pleadings to state a claim as to the alleged unconstitutionality of the press pass application rules.
The First Amendment “prohibits government from restricting a journalist's access to areas otherwise open to the press based upon the content of the journalist's publications.”Nonetheless, the “right to equal access under the First Amendment is not absolute, and the interest to be served by the newsgathering activity at issue must be balanced against the interest served by denial of that activity.” In conducting this balancing, courts ask “two primary questions: (1) whether the unequal access afforded to different journalists is based on content-neutral grounds, and (2) whether that unequal access serves a legitimate governmental objective and the benefits derived from the restriction are greater than the benefits that would result from lifting the restriction.” “If both of these questions are answered in the affirmative, the government may enforce a policy giving some members of the press more favorable access to newsworthy information than others.”
Stevens v. N.Y. Racing Ass'n., 665 F.Supp. 164, 175 (E.D.N.Y. 1987).
Nicholas v. Bratton, 376 F.Supp.3d 232, 260 (S.D.N.Y. 2019).
Id.
Id.
Here, the rules regarding the issuance of press passes require that an applicant “submit six (6) or more articles, commentaries, books, photographs, videos, films, or audios published, broadcast, or cablecast within the twenty-four (24) months immediately preceding the Standard Press Card application, sufficient to show that such applicant covered, in person, six (6) or more events occurring on separate days.” Once issued, a press pass holder “is entitled . . . to cross police, fire lines, or other restrictions, limitations or barriers established by the City of New York at emergency, spot, or breaking news-events and public events of a non-emergency nature,” and may “attend events sponsored by the City of New York that are open to members of the press.”
43 R.C.N.Y. § 16-03(a).
Id. § 16-02.
The relevant rules are content-neutral. That is, they do not address the substance of the applicant's work, but simply require a demonstration that the applicant is a member of the press. In limiting press access to verified members of the press, the rules also have a rational basis and clear benefits (i.e., serve a legitimate governmental purpose)-such as to maintain safety. Plaintiff does not argue otherwise and raises no facts to support her conclusory allegation that any city rule was unconstitutional. Because Plaintiff fails to allege a constitutional violation and provides no basis to conclude that any amendment could remedy her pleadings, the Court has determined that granting Plaintiff leave to amend would be futile.
See id. § 16-03(a).
See N.Y.C. Admin. Code § 3-119.4(d)(2).
See McCree v. Messina, No. 14 Civ. 5201, 2015 WL 4299546, at *6 (S.D.N.Y. July 15, 2015) (denying leave to amend “because the alleged facts do not rise to the level of [a constitutional] violation,” and concluding that “[the plaintiff] could not amend his complaint to state a valid claim to relief”); see also Ashmore v. Prus, 510 Fed.Appx. 47, 49 (2d Cir. 2013) (noting that while “[d]istrict courts should generally not dismiss a pro se complaint without granting the plaintiff leave to amend,” “leave to amend is not necessary when it would be futile”).
CONCLUSION
For the reasons discussed herein, Defendants' motion to dismiss is GRANTED. Specifically, Plaintiff's challenge to MOME's decision to deny her press pass application is dismissed for lack of subject-matter jurisdiction, without prejudice to refiling in state court, through Article 78. Plaintiff's constitutional challenge to any rule applied by MOME is dismissed for failure to state a cause of action. Leave to amend is denied on grounds of futility.
The Clerk of Court is respectfully requested to terminate ECF No. 23 and to close the case.
SO ORDERED.