BANK v. KATZ
TODD C. BANK, Plaintiff-Appellant,
ANNE KATZ, in her official capacity as Judge of the Housing Part of the Civil Court of the City of New York, and JUDE ALBANO, in his official capacity as Senior Court Clerk of the Civil Court of the City of New York, Defendants-Appellees.
United States Court of Appeals, Second Circuit.
June 16, 2011.
Todd C. Bank, pro se, Kew Gardens, New York, Appearing for Appellant.
David Lawrence III, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Michael S. Belohlavek, Senior Counsel, on the brief), New York, New York, for Andrew M. Cuomo, Attorney General of the State of New York., Appearing for Appellees.
PRESENT: ROGER J. MINER, ROBERT D. SACK, PETER W. HALL, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED.
Plaintiff-appellant Todd C. Bank, an attorney proceeding pro se, appeals from the district court's judgment dismissing his complaint brought under 42 U.S.C. § 1983 against defendants-appellees New York Civil Court Judge Anne Katz and Senior Court Clerk Jude Albano. Because he is an attorney, Bank is not entitled to "claim the special consideration which the courts customarily grant to pro se parties." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82 n.4 (2d Cir. 2001) (internal quotation marks omitted).
Bank alleges that the defendants violated his constitutional rights under the First and Fourteenth Amendments by orally directing him not to wear a baseball hat when appearing in court and by admonishing him for wearing inappropriately casual attire. We assume the parties' familiarity with the underlying facts, procedural history of the case, and issues on appeal.
"We review de novo a district court's dismissal of a complaint for failure to state a claim upon which relief can be granted, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 61 (2d Cir. 2010) (citation and internal quotation marks omitted). For a plaintiff's claim 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.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). Bank contends, first, that the defendants violated his First Amendment rights by instructing him not to wear a baseball hat and casual attire when appearing in court. Assuming arguendo that Bank's choice of attire constituted a form of protected expression, but see Zalewska v. County of Sullivan, 316 F.3d 314, 319-21 (2d Cir. 2003); E. Hartford Educ. Ass'n v. Bd. of Educ. of the Town of E. Hartford, 562 F.2d 838, 856-58 (2d Cir. 1977) (en banc), a restriction on speech in such a forum will be upheld "so long as the restriction is reasonable and viewpoint-neutral," Byrne v. Rutledge, 623 F.3d 46, 53 (2d Cir. 2010). Bank concedes that the defendants' conduct was viewpoint neutral. A restriction is "reasonable" if "it is wholly consistent with the government's legitimate interest in preserving the property for the use to which it is lawfully dedicated." Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 147 (2d Cir. 2004) (brackets, ellipsis, and internal quotation marks omitted); see also Byrne, 623 F.3d at 59-60. "A courthouse serves to provide a locus in which civil and criminal disputes can be adjudicated. Within this staid environment, the presiding judge is charged with the responsibility of maintaining proper order and decorum." Huminski v. Corsones, 396 F.3d 53, 91 (2d Cir. 2005) (internal quotation marks omitted); cf. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071 (1991); Berner v. Delahanty, 129 F.3d 20, 27-29 (1st Cir. 1997), cert. denied, 523 U.S. 1023 (1998). The restriction as alleged is therefore reasonable.