Lunney v. The City of New York

Background

George P. Lunney, Jr., proceeding without a lawyer, sued the City of New York and Emily Chase, identified as the Assistant Commissioner of Public Programs for the New York City Department of Parks. He brought claims under 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments.

Lunney alleged that, on June 10, 2019, he contacted Parks Department officials to report that an American flag at Williamsburg Oval Park was tattered and should be replaced. After an employee, Karen Pedrosa, allegedly ended a call by saying that people had too much time on their hands and only complained, Lunney left a voicemail criticizing her manner and made additional calls seeking to complain about her. He alleged that Parks Department employee Paul Fontana later sent him a letter accusing him of using racist, vulgar, and profane language and of misconduct at the Williamsbridge Oval Recreation Center. The letter stated that he could not use a Parks Department recreation center or renew his membership, although Lunney alleged that he was not a member at the time. He appealed to Chase, who rejected the appeal in an October 9, 2019 letter while acknowledging that erroneous statements had been made about alleged misconduct. Lunney also pursued a state-court proceeding, which he said resulted in a remand to Chase for reconsideration. He did not state whether he received a final reconsideration decision before filing this federal case.

Lunney sought $1 million in damages and access to all New York City Parks Department recreation centers.

Court’s analysis

The court reviewed the complaint under the standards governing complaints filed without prepaying filing fees. It explained that such a complaint must be dismissed if it is frivolous, malicious, fails to state a claim, seeks money from an immune defendant, or presents claims over which the court lacks jurisdiction. The court also explained that it must read a self-represented litigant’s allegations generously, but the complaint still must provide enough factual detail to make entitlement to relief plausible.

First Amendment retaliation. To state a retaliation claim, Lunney had to allege that he engaged in speech protected by the First Amendment, that the defendants acted because of that speech, and that their actions effectively discouraged the exercise of that right. The court held that he did not provide the specific content of the statements that allegedly prompted the retaliation. His allegations that he was accused of using racist, vulgar, and profane language were not enough to show that his own speech was constitutionally protected. The court therefore found that he failed to state a First Amendment claim.

Equal protection. Because Lunney did not allege discrimination based on race, religion, sex, or another protected characteristic, the court understood him to be asserting a “class-of-one” claim. Such a claim requires allegations that the plaintiff was intentionally treated differently from a similarly situated person without a rational basis. The court held that Lunney identified no similarly situated comparator and did not allege intentional differential treatment without a rational basis. He therefore failed to state an equal-protection claim.

Procedural due process. The court considered whether Lunney had a protected property or liberty interest in using or belonging to the Williamsbridge Oval Recreation Center and, if so, whether he was denied the process required before losing that interest. The court noted that Lunney alleged he was not a member, did not allege that he had used the center before being barred, and did not allege that he had applied for or paid for membership there or elsewhere. The court held that the complaint did not show a protected property interest in membership. It further held that, even assuming such an interest existed, Lunney had received multiple levels of review, including an appeal and state-court review, and the allegations did not show that additional pre-deprivation procedures were required. The court also stated that he had not alleged the facts needed for a “stigma-plus” liberty-interest claim, including public disclosure of false stigmatizing information.

Claim against the City. A municipality is not liable under § 1983 merely because one of its employees allegedly violated someone’s rights. The plaintiff must allege a municipal policy, custom, or practice that caused the constitutional violation. Because Lunney had not adequately alleged an underlying constitutional violation, the court held that he also failed to state a claim against the City.

Disposition

The court granted Lunney leave to file an amended complaint within 60 days. The amended complaint had to provide additional facts about the statements involved in the alleged retaliation and the factual bases for his equal-protection and due-process claims, as well as the relevant people, events, dates, locations, injuries, and requested relief. It would completely replace, rather than supplement, the original complaint. The court stated that no summons would issue at that time and that failure to amend within the permitted period, absent good cause, would result in dismissal for failure to state a claim. The court also certified that an appeal would not be taken in good faith and denied permission to proceed without prepaying fees for an appeal.