Bank v. Katz

09-4413-cv Bank v. Katz UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of New 4 York, on the 16th day of June,two thousand eleven. 5 PRESENT: 6 ROGER J. MINER, 7 ROBERT D. SACK, 8 PETER W. HALL, 9 Circuit Judges. 10 -------------------------------------- 11 TODD C. BANK, 12 Plaintiff–Appellant, 13 - v - No. 09-4413-cv 14 ANNE KATZ, in her official capacity 15 as Judge of the Housing Part of the 16 Civil Court of the City of New York, 17 and JUDE ALBANO, in his official 18 capacity as Senior Court Clerk of 19 the Civil Court of the City of New 20 York, 21 Defendants–Appellees. 22 -------------------------------------- 23 Appearing for Appellant: Todd C. Bank, pro se, Kew Gardens, 24 New York. 25 Appearing for Appellees: David Lawrence III, Assistant 26 Solicitor General (Barbara D. 27 Underwood, Solicitor General, and 28 Michael S. Belohlavek, Senior 29 Counsel, on the brief), New York, 1 New York, for Andrew M. Cuomo, 2 Attorney General of the State of 3 New York. 4 Appeal from a September 25, 2009, judgment of the United 5 States District Court for the Eastern District of New York 6 (Garaufis, J.). 7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 8 DECREED that the judgment of the district court be, and it hereby 9 is, AFFIRMED. 10 Plaintiff–appellant Todd C. Bank, an attorney proceeding pro 11 se, appeals from the district court's judgment dismissing his 12 complaint brought under 42 U.S.C. § 1983 against 13 defendants–appellees New York Civil Court Judge Anne Katz and 14 Senior Court Clerk Jude Albano. Because he is an attorney, Bank 15 is not entitled to "claim the special consideration which the 16 courts customarily grant to pro se parties." Holtz v. 17 Rockefeller & Co., Inc., 258 F.3d 62, 82 n.4 (2d Cir. 2001) 18 (internal quotation marks omitted). 19 Bank alleges that the defendants violated his constitutional 20 rights under the First and Fourteenth Amendments by orally 21 directing him not to wear a baseball hat when appearing in court 22 and by admonishing him for wearing inappropriately casual attire. 23 We assume the parties' familiarity with the underlying facts, 24 procedural history of the case, and issues on appeal. 25 "We review de novo a district court's dismissal of a 26 complaint for failure to state a claim upon which relief can be 27 granted, accepting all factual allegations in the complaint as 28 true, and drawing all reasonable inferences in the plaintiff's 29 favor." Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 30 602 F.3d 57, 61 (2d Cir. 2010) (citation and internal quotation 31 marks omitted). For a plaintiff's claim to survive a motion to 32 dismiss, "a complaint must contain sufficient factual matter, 33 accepted as true, to 'state a claim to relief that is plausible 34 on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) 35 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). 36 Bank contends, first, that the defendants violated his First 37 Amendment rights by instructing him not to wear a baseball hat 38 and casual attire when appearing in court. Assuming arguendo 39 that Bank's choice of attire constituted a form of protected 40 expression, but see Zalewska v. County of Sullivan, 316 F.3d 314, 41 319-21 (2d Cir. 2003); E. Hartford Educ. Ass'n v. Bd. of Educ. of 42 the Town of E. Hartford, 562 F.2d 838, 856-58 (2d Cir. 1977) (en 43 banc), a restriction on speech in such a forum will be upheld "so 44 long as the restriction is reasonable and viewpoint-neutral," 2 1 Byrne v. Rutledge, 623 F.3d 46, 53 (2d Cir. 2010). Bank concedes 2 that the defendants' conduct was viewpoint neutral. 3 A restriction is "reasonable" if "it is wholly consistent 4 with the government's legitimate interest in preserving the 5 property for the use to which it is lawfully dedicated." Make 6 the Road by Walking, Inc. v. Turner, 378 F.3d 133, 147 (2d Cir. 7 2004) (brackets, ellipsis, and internal quotation marks omitted); 8 see also Byrne, 623 F.3d at 59-60. "A courthouse serves to 9 provide a locus in which civil and criminal disputes can be 10 adjudicated. Within this staid environment, the presiding judge 11 is charged with the responsibility of maintaining proper order 12 and decorum." Huminski v. Corsones, 396 F.3d 53, 91 (2d Cir. 13 2005)(internal quotation marks omitted); cf. Gentile v. State Bar 14 of Nevada, 501 U.S. 1030, 1071 (1991); Berner v. Delahanty, 129 15 F.3d 20, 27-29 (1st Cir. 1997), cert. denied, 523 U.S. 1023 16 (1998). The restriction as alleged is therefore reasonable. 17 Bank has thus failed to allege facts sufficient to support a 18 claim of a violation of his First Amendment rights. The district 19 court did not err in dismissing this claim. 20 We also conclude that the district court did not err in 21 dismissing Bank's claim under the Fourteenth Amendment, which is 22 premised on Bank's asserted liberty interest in his personal 23 appearance. The Supreme Court has not yet confirmed the 24 existence of such a constitutionally protected liberty interest. 25 See Kelley v. Johnson, 425 U.S. 238, 244 (1976) (assuming, 26 without deciding, the existence of such an interest). For the 27 purposes of resolving this appeal, we assume that such an 28 interest exists, as we have also done on previous occasions. 29 See, e.g., Zalewska, 316 F.3d at 321; see also Kelley, 425 U.S. 30 at 244. 31 Bank contends that the defendants' direction that he remove 32 his hat should be subjected to strict scrutiny. However, he 33 identifies no legal basis for concluding that a lawyer's interest 34 in dressing as he pleases when appearing in court rises to the 35 level of a fundamental constitutional right, see Washington v. 36 Glucksberg, 521 U.S. 702, 720-21 (1997), nor are we able to 37 discern one. Accordingly, we apply rational-basis review to 38 Bank's Fourteenth Amendment claim. See Zalewska, 316 F.3d at 39 321. We conclude that the defendants' instructions that Bank 40 remove his baseball hat when appearing in court were rationally 41 related to the legitimate governmental purpose of maintaining 42 order and decorum in the courtroom. The district court therefore 43 correctly dismissed Bank's claim for violation of his Fourteenth 44 Amendment rights. 45 Finally, in their opposing brief on appeal, the defendants 46 argue that the district court should have refrained from deciding 47 this case under the doctrine of abstention established by Younger 3 1 v. Harris, 401 U.S. 37 (1971). The district court did not 2 address this question. In light of our decision to affirm the 3 dismissal of Bank's claims on their merits, we need not address 4 this difficult question to resolve this appeal. See, e.g., 5 Official Comm. of Unsecured Creditors of WorldCom, Inc. v. SEC, 6 467 F.3d 73, 81 (2d Cir. 2006); Moore v. Consol. Edison Co. of 7 N.Y., Inc., 409 F.3d 506, 511 n.5 (2d Cir. 2005). 8 We have reviewed Bank's remaining contentions on appeal and 9 find them to be without merit. 10 For the foregoing reasons, the judgment of the district 11 court is hereby AFFIRMED. 12 FOR THE COURT: 13 CATHERINE O'HAGAN WOLFE, CLERK 14 4