Leeds v. Meltz, Civ. A. No. CV-96-0602.

Decision Date28 September 1995
Docket NumberCiv. A. No. CV-96-0602.
Citation898 F. Supp. 146
PartiesJackson LEEDS, Plaintiff, v. Jonathan S. MELTZ, Anthony Mansfield, Susan Ferraro, Co-Editors-In-Chief of the Brief, The City University of New York School of Law Newspaper, Merrick T. Rossein, Acting Dean of the Cuny School of Law at Queens College, and Unknown John and Jane Does, Agents, Employees of Cuny School of Law at Queens College and/or the City University of New York, In Their Official and Individual Capacities, Defendants.
CourtU.S. District Court — Eastern District of New York

Jackson Leeds, Plaintiff pro se.

Jonathan S. Meltz, Anthony Mansfield, Susan Ferraro, Defendants pro se.

Dennis C. Vacco, Atty. Gen. of State of N.Y., for defendants.

MEMORANDUM AND ORDER

TRAGER, District Judge:

The defendants in this case, the acting dean of the City University of New York ("CUNY") School of Law, and three student editors of the school's newspaper, The Brief, ("paper") move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the court grants these motions.

Background

The plaintiff, Jackson Leeds, is an attorney who graduated from CUNY Law School in 1993. In September 1994, two of Leeds' articles highly critical of the law school were published by the paper. In early 1995, he sought to have a classified advertisement published in the school newspaper. In the proposed advertisement, Leeds intended to solicit material which would discredit certain faculty or administrators at the school and which would be "for use in a federal civil rights action against the school." Compl.Ex. 7. Leeds also sought in the proposed advertisement to urge individuals who had been discriminatorily treated by the school's criminal defense clinic to join in a complaint directed against the clinic which he had filed with the Office of Civil Rights of the U.S. Department of Education.

On Friday evening, February 10, 1995, Leeds learned that the three student editors had refused to publish the advertisement in the newspaper because they felt it was defamatory and would expose them and the paper to litigation.1 Compl. ¶ 30. On the following Monday morning, February 13, 1995, Leeds filed his complaint in this court claiming his First and Fourteenth Amendment rights were violated by the editors' refusal to print his advertisement. Compl. date stamped in Clerk's Office, U.S. District Court, E.D.N.Y., 10:41 a.m., February 13, 1995.

In his complaint, Leeds claims—"upon information and belief"—that certain administrators and faculty at the school "prevented the publication" of his advertisement in The Brief, without giving any details of how this occurred. Compl. ¶ 33. Leeds alleges that the school threatened retaliation against the paper for printing his articles and that the school influenced The Brief by threats of withholding financial support and computer equipment. Compl. ¶ 23. Leeds did not further allege the circumstances under which these threats were made nor how the school caused the paper's editors to reject his advertisement or otherwise "prevented the publication" of the advertisement.

Leeds also alleges that Acting Dean Rossein had failed to conform to the "custom of the CUNY that student newspapers have a faculty adviser." Compl. ¶¶ 16, 17. In ¶ 20, he alleges that Dean Rossein's failure to appoint a faculty adviser for the paper caused Leeds' constitutional deprivation.

With respect to the other employees of CUNY (none of whom are named defendants in the complaint although some employees are specified by name in the complaint itself), Leeds claims that they acted against the paper in retaliation for its printing his articles. Compl. ¶ 23.

Leeds alleges that the student editors, although not employed by the School of Law, were acting under color of state law in their decision not to publish his advertisement, and thus are thereby within the reach of 42 U.S.C. § 1983. At argument Leeds asserted that the editors were state actors or "conspired with state actors." Hearing Tr., p. 3. He also claims that the paper is a "public forum." Compl. ¶ 35.

Discussion

(1)

To establish liability for constitutional violations under § 1983 it is essential that the plaintiff show that his rights were violated as a result of state action. In Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769-70, 73 L.Ed.2d 418 (1982), the Court held that there was no state action in a school's retaliatory discharge of teachers following their communication with the board about a dispute with the head of the school even though the state provided virtually all of the school's funding and oversaw its hiring decisions. The absence of any showing that state actors or state policy played a part in the discharges was dispositive. In Sinn v. The Daily Nebraskan, a substantially similar case to that before this court, the Court of Appeals for the Eighth Circuit held that the refusal by a state college newspaper to publish an advertisement did not constitute state action "where there was a complete lack of control over the student newspaper on the part of the University officials," 829 F.2d 662 (8th Cir.1987).

It is clear that the paper's editors who are law students are not state actors. The Court of Appeals for the Fifth Circuit has held: "The fact that a publication is sponsored by a state agency is not sufficient in itself ... to establish state action." Estiverne v. Louisiana State Bar Assoc., 863 F.2d 371 (1989). The Estiverne court distinguished the case before it—in which it was undisputed that the state bar journal editors acting pursuant to statute were state actors —from a case, like that before this court, in which the publication is, despite state sponsorship, "sufficiently independent that its editorial decisions may not be characterized as state action." Id. at 376.

Here, any inference of influence by the school administration that might make the student editors state actors is, in fact, undermined by Leeds' own pleading. Leeds alleges that the administration retaliated against the paper by cutting its budget and access to facilities, Compl. ¶ 23, and that Dean Rossein had failed to provide a faculty adviser to the paper. Compl. ¶ 20. These allegations indicate absence of control over the paper by the law school administration, faculty and staff.2

It is the very absence of control of the paper by the law school administration that establishes, based on Leeds' own pleadings, that the decision of the editors was not state action. As the Court of Appeals noted in Sinn v. The Daily Nebraskan: "The Rendell-Baker Court pointed out that regulation and subsidization of an entity, without more, do not create state action, but that the proper test was, rather, whether the challenged action was `fairly attributable' to the state," 829 F.2d 662, 665 (1987). Plaintiff has alleged no facts from which it may plausibly be inferred that the editor's actions were "fairly attributable" to the law school administration.3

Determination that the editors are not state actors is dispositive of the matter here. "If the publication is not a state actor, then plaintiff's claim would necessarily fail because the first amendment precludes us from recognizing a right of reply against the private press." Estiverne, note 2 at 375.

(2)

District courts must be "mindful of the liberality to be accorded pro se pleadings," Pino v. Ryan, 49 F.3d 51, 52 (2d Cir.1995), and ordinarily hold them to "`less stringent standards than formal pleadings drafted by lawyers,'" Ferran v. Town of Nassau, 11 F.3d 21 (2d Cir.1993), quoting Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175-76, 66 L.Ed.2d 163 (1980) (emphasis added) because, according to the Court of Appeals for the Second Circuit, "some effort must be made to protect a party .. appearing pro se from waiving a right to be heard because of his or her lack of legal knowledge." Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (1993) (emphasis added). Here, however, the complaint was drafted by a lawyer. Plaintiff has been admitted to practice and notes in the complaint that he has prosecuted several actions previously. Compl. ¶ 14. Thus, relaxation of already liberal pleading standards is not appropriate despite the plaintiff's pro se status.

More importantly, even under modern-day liberal pleading standards, a plaintiffs "bald assertions, unsupportable conclusions, and `opprobrious epithets,'" are not sufficient to state a claim, The Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989) quoting Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir.1987) quoting Snowden v. Hughes, 321 U.S. 1, 10, 64 S.Ct. 397, 402, 88 L.Ed. 497 (1944). Citing Dartmouth Review, the Second Circuit has recently enunciated the standard for dismissal under Rule 12(b)(6) in a civil rights case alleging racial discrimination: "In order to survive a motion to dismiss, the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent," Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994). See also, Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371 (2d Cir.1978) ("It is well settled in this Circuit that a complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6).) Accord, Polur v. Raffe, 912 F.2d 52, 56 (2d Cir.1990) (In a RICO action, "It is incumbent on a plaintiff to state more than conclusory allegations to avoid dismissal of a claim predicated on a conspiracy to deprive him of his constitutional rights.")

Furthermore, the nature of this case-involving, as it does, the First Amendment rights of a student newspaper to exercise its discretion in accepting advertisements—requires a more substantial showing than Leed's factually unsupported allegation of...

To continue reading

Request your trial
9 cases
  • Jones v. Nat. Commun. and Surveillance Networks
    • United States
    • U.S. District Court — Southern District of New York
    • January 12, 2006
    ...power over, or provided significant encouragement to, the defendant." Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir. 1996), aff'g, 898 F.Supp. 146 (E.D.N.Y. 1995). The conclusory allegations of Plaintiff's Amended Complaint do not sensibly allege any action "under color of law." There is no allega......
  • Davidson v. Garry
    • United States
    • U.S. District Court — Eastern District of New York
    • September 16, 1996
    ...Breindel & Ferstendig v. Willis Faber & Dumas, No. 95 Civ. 7905, 1996 WL 413727 at * 10 (S.D.N.Y. July 24, 1996); Leeds v. Meltz, 898 F.Supp. 146, 149 (E.D.N.Y.1995), aff'd, 85 F.3d 51 (2d C. Elements of a Civil Rights Claim Keeping the standard articulated above in mind, the Court notes th......
  • Larsen v. Jbc Legal Group, P.C.
    • United States
    • U.S. District Court — Eastern District of New York
    • February 12, 2008
    ...motion, the rules afforded pro se litigants are not relaxed when that litigant is also an attorney, as Brandon is. See Leeds v. Meltz, 898 F.Supp. 146, 149 (E.D.N.Y.1995), aff'd, 85 F.3d 51 (2d Cir. 1996) (holding that pro se attorney was not entitled to the liberality normally accorded pro......
  • Scott v. Town of Monroe
    • United States
    • U.S. District Court — District of Connecticut
    • February 27, 2004
    ...and provides no factual support for such claims, it is appropriate to grant defendants motion to dismiss. See Leeds v. Meltz, 898 F.Supp. 146, 151 (E.D.N.Y.1995). 1. Takings Plaintiff's assertion that she was deprived of her property without just compensation in violation of the Fifth Amend......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT