Lu v. Hulme et al

Filing 16

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER In view of the foregoing, it is hereby ORDERED that: 1. Plaintiff's Motion for Temporary Restraining Order (Docket No.2) is DENIED. 2. Plaintiff's Motion to Disqualify So Called Counsel (Docket No.7) is DENIED. 3. Defendants George Hulme and Trustees of the Boston Public Library's Motion to Dismiss Plaintiff's complaint Pursuant to Fed. R. Civ. P. 12 (b) (6) is DENIED in part and ALLOWED in part. Specifically, the motion is allowed as to the claim of a violation of Lu' s right to substantive due process under the Fourteenth Amendment of the United States Constitution, and denied as to the remaining claims. 4. Defendants George Hulme and Trustees of the Boston Public Library's Motion for Fees, Costs and Sanctions Against the Plaintiff (Docket No. 13) is DENIED without prejudice. 5. Plaintiff's Opposition to Motion for Attorney's Fees and Cross-Motions for Sanctions and for Factual and Legal Proof of Attorney-Client Relationship (Docket No. 14) is DENIED. 6. Lu shall report, by April 22, 2013, whether or not he requests that counsel be appointed to represent him in this case. After the issue of whether Lu will be represented by counsel is resolved, the court will establish a schedule for the remainder of this case.(Hohler, Daniel)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

FRIEDRICH LU,
Plaintiff,

v.

C.A. No. 12-11117-MLW

GEORGE HULME and TRUSTEES OF
THE BOSTON PUBLIC LIBRARY,
Defendants
MEMORANDUM AND ORDER
WOLF, D.J.
I.

March 30, 2013

SUMMARY
Pro se plaintiff Friedrich Lu brings this civil rights action

against defendants
Public Library

George Hulme and the Trustees of the Boston

(the "Trustees")

pursuant to §1983 of the Federal

Civil Rights Act,

42 U.S.C. §1983, and §llI of the Massachusetts

Civil Rights Act,

Mass.

G.L.

c.12,

§11I.

Lu,

who

is a homeless

person, alleges that his constitutional rights were violated when
he was refused entrance to the Copley branch of the Boston Public
Library

(the "Library") with a wire shopping cart containing his

belongings (the "cart").
Lu has filed a motion for a temporary restraining order (the
"Motion for TRO") and a motion to disqualify the City of Boston Law
Department (the "Law Department") from representing defendants (the
"Motion to Disqualify"). Defendants have moved to dismiss this case
pursuant to Rule 12(b) (6)

of the Federal Rules of Civil Procedure

(the "Motion to Dismiss"). In addition, defendants have also filed
a motion for fees, costs and sanctions against Lu (the "Motion for

Sanctions")

for his failure to abide by a court order issued by

this

in

court

response,

2002.

Lu

opposes

defendants'

motions

in

seeks attorney's fees and sanctions against defendants

pursuant to Federal Rule of Civil Procedure 11
for

and,

Sanctions").

Lu ' s Motion for TRO,

(the "Cross-Motion

Motion to Disqualify and

Cross-Motion for Sanctions are opposed.
For the reasons explained in this Memorandum: the plaintiff's
Motion to Disqualify is being denied;

the defendants'

Motion to

Dismiss is being allowed as to the claim of a violation of Lu's
right to substantive due process under the Fourteenth Amendment and
denied as to the remaining claims; the plaintiff's Motion for a TRO
is being denied;

and plaintiff s
I

Cross-Motion for

Sanctions

is

being denied. In addition, the defendants' Motion for Sanctions is
being denied without prejudice.

Lu is now being warned that any

future violations of court orders or applicable rules may result in
the

imposition

of

sanctions

against

him,

which

may

include

dismissal of this case. In addition, Lu is being ordered to inform
the

court,

by April

22,

2013,

whether or

not

he

requests

appointment of counsel to represent him in this complex suit.

the
If

so, the court will seek counsel to represent him pro bono, meaning
without cost to Lu.

2

II. BACKGROUND
Except where otherwise indicated, the following alleged facts
are derived from Lu's pro se complaint.
Lu, who is homeless, lives in Boston, Massachusetts. Defendant
Trustees constitute a corporation consisting of nine "trustees of
the public library of the city of Boston" who are appointed by the
Mayor

of

Boston,

and

who

are

charged

with

control" of the Library and its branches.
§§1 & 5,

"general

care

and

1878 Mass. Acts c.114,

as amended by 1887 Mass. Acts c.60,

§1,

and 1995 Mass.

Acts c.157, §1. Defendant Hulme is Supervisor of Security, Shipping
and Receiving of the Library.
On June 13, 2012, Lu went to the Library with his cart. See
Compl.

~6-7(a).

The cart was one and a half feet long,

one foot

wide, and three feet tall, with two wheels and a handle at the top.
Id.

~7

(a).

It

contained various

items,

grocery bags and ,a plastic bottle.

Id.

including
~~7

(b),

(e).

several paper
Lu also held

some additional belongings in three plastic grocery bags in his
hands, including various legal papers. Id.
and Lu's belongings were wet. See id.
Upon entering the building,

~6.

It had been raining

~7(b).

Lu was

informed by an unnamed

security guard that he would need to leave his cart outside.
id.

~7(c).

See

The guard stated that if Lu came inside with the cart,

he would call the police. See id.
Lu asked to speak with the guard's supervisor. See id. Hulme

3

arrived with two additional security guards and reiterated that Lu
could not come inside the Library with his cart. See id.

~7(e).

Lu

asked if he could gain admittance by rearranging his belongings to
make them more "palatable." Id. According to the complaint, Hulme
responded by stating that this was not possible and that "homeless
people

can

not

come

in

with

belongings."

However,

Id.

Hulme

allegedly also told Lu that there had been "a homeless guy,

who

could

two

not

come

in

with

his

belongings

[who]

later

found

suitcases and put everything in the suitcases. We then allowed him
to come in with the suitcases." Id.
Lu asked Hulme's name and left the Library. See id. According
to Lu, the encounter lasted five minutes and was "congenial," but
it was

"understood"

that

if plaintiff did not

comply with the

security personnel, he would be charged with trespass or something
similar. Id.
On

~6.

June

capaci ty,

and

capacities.
Amendment

21,

2012,

sued

Id.

Hulme

~2.

in

the

both

Trustees

his

in

official

its

and

official

individual

Lu asserts that he was deprived of his First
due

process and equal protection under the Fourteenth Amendment.

Id.

As

to

sued

to

~~13-14.

right

Lu

access

indicated

restraining order,

the

Library,

earlier,

Lu

has

and

his

moved

rights

for

a

temporary

presumably seeking to allow him to bring his

cart and belongings into the Library while this lawsuit is pending.
He has also filed a Motion to Disqualify defendants' counsel.

4

As was also stated earlier, defendants oppose Lu's motions and
have moved to dismiss the case pursuant to Federal Rule of Civil
Procedure 12(b) (6).

In essence,

defendants assert that plaintiff

was prevented from entering the Library in accordance with its
Appropriate Library Use Policy (the" Library Policy"), which they
contend is a constitutionally valid regulation of the Library. They
represent that the relevant language in the Policy prevents patrons
from bringing non-assisti ve "wheeled devices"

into the Library,

including "shopping carts," as well as "garbage,

articles with a

foul odor, or articles which, alone or in their aggregate, impede
the use of the

library by other users." Library Policy,

Boston

Public Library, http://www.bpl.org/general/policies/acceptableuse
(last visited Dec. 4, 2012). Lu opposes the Motion to Dismiss.
On December 20, 2012, defendants filed a Motion for Sanctions
against Lu. Defendant's argue that LuIs failure to abide by a March
29,

2002

Order

issued

by

this

court

in

another

case

warrants

sanctions. That Order required Lu to attach certain documents to
any pleading, motion, complaint or other document that he files in
the United States District Court for the District of Massachusetts.
See

Mar. 29 2002 Order, Lu v. Harvard School of Dental Medicine,

No. 00-11492-MLW (D. Mass 2002), ECF No. 49 (the "2002 Order").

Lu

has opposed the Motion for Sanctions and filed a Cross-Motion for
Sanctions

pursuant

to

Federal

Rule

Defendants oppose Lu's Cross-Motion.

5

of

Civil

Procedure

11.

III. DISCUSSION
LuIs Motion to Disqualify is Not Meritorious

A.
Lu

contends

that

the

Trustees

constitute

an

independent

entity, rather than a branch of the City of Boston, that Hulme is
not an employee of the City, and that their representation by the
City of Boston Law Department is improper.
A party
counsel.

may

seek

However,

the

disqualification

of

an

adversary IS

such disqualification is a "drastic measure."

Adoption of Erica,

426 Mass.

55,

58

(1997).

It

should only be

granted as "a measure of last resort" when necessary to assure "the
ethical and orderly administration of justice." In re Grand Jury
Proceedings, 859 F.2d 1021, 1026 (1st Cir. 1988).
Contrary to Lu's contention, the Library is a department of
the City of Boston,

at least for some purposes.

The Library is

sometimes referred to in state statutes as the Boston "library
department."

See,

e.g.,

Boston City Charter,

1909 Mass.

Acts c.486

(in amending the

noting that the mayor and city council may

abolish or reorganize city departments with certain exceptions,
including

the

"library

department").

The

Library

is

similarly

described as the "Library Department" in the Boston Municipal Code.
See Boston,
Trustees).

Mass.,

Code

§11-8

(establishing the

duties

The Massachusetts Supreme Judicial Court

of the

("SJC")

has

also referred to the Library as the City's "library department."
See Trustees of Pub.

Library of City of Boston v.

6

Sherrill,

263

Mass. 173, 177 (1928). The court, therefore, finds that the Library
is a

department of the City of Boston for

the purposes of the

Motion to Disqualify.
The Trustees constitute a municipal entity that oversees the
Library as a department of the City of Boston.
appointed by the Mayor.
Cod. §2-7.l.

The Trustees are

See 1994 Mass. Acts. c. 157; Boston, Mass.

The SJC has stated that the Trustees constitute a

municipal entity, at least for certain purposes.
Otis

Elevator Company v.

Long,

the

For example,

SJC called the

Trustees

in
"a

corporation, and a department of the city of Boston," and concluded
that contract claims relating to a Library building should be filed
against

the Trustees as

the officer or board in charge of the

department rather than against the Mayor of Boston. 238 Mass. 257,
265-66

(1921).

stated that

the

Similarly,
Trustees

in City of Boston v.
constitute

"in one

Dolan,

sense

a

the SJC
municipal

agency," while also concluding that the City of Boston could not
sue on the Trustees' behalf to recover stolen Library funds because
as a corporation the Trustees held independent legal title to those
funds.

298 Mass.

346,

351-52

(1937). Notably,

the Law Department

has represented that the Trustees in at least one case before the
SJC. See Trustees of Pub. Library, 263 Mass. at 174 (Law Department
represents Trustees in lawsuit concerning bequest to Trustees and
Boston Public Library) .
The Law Department is authorized by the Boston Municipal Code

7

to represent "boards in charge of departments" in "suits against
them for their official actions,

or for the performance of their

official duties." The Trustees constitute such a board.

Boston,

Mass. Code §§l-l a.9 & 5-8.1. Therefore, Lu's Motion to Disqualify
with regard to the Trustees is not meritorious.
Hulme is an employee of the Library, who is sued in both his
official and individual capacities based on the same conduct. The
Law Department's representation of him in both capacities presents
no

evident

ethical

issues.

Therefore,

granting

the

Motion

to

Disqualify the Law Department from representing Hulme is also not
meritorious. See In re Grand Jury Proceedings, 859 F.2d at 1026.
In view of the foregoing,

the Motion to Disqualify is being

denied.
B.

The Motion
Meritorious

to

Dismiss

All

of

Lu's

Claims

is

Not

Defendants have moved to dismiss all of Lu's claims, pursuant
to Federal Rule of Civil Procedure 12(b) (6), for failure to state
a

claim

on

which

relief

may

be

granted.

This

contention

is

incorrect with regard to all except Lu's claim for a violation of
his

right

to

substantive

due

process

under

the

Fourteenth

Amendment.
1.

The Applicable Standards

In considering a motion to dismiss under Rule 12 (b) (6), the
court must "take all factual allegations as true and . . . draw all
reasonable inferences in favor of the plaintiff." Rodriguez-Ortiz
8

v. Margo Caribe,

Inc.,

490 F.3d 92,

96

(1st Cir.

2007); see also

Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir. 2009). The court
must "neither weigh [] the evidence nor rule [] on the merits because
the issue is not whether plaintiffs will ultimately prevail,
whether

they

are

entitled

to

offer

evidence

to

support

but

their

claims." Day v. Fallon Cmty. Health Plan, Inc., 917 F. Supp. 72, 75
(D.

Mass.

1996).

plaintiff

has

Atlantic

Corp.

A motion

shown

"a

to

dismiss

plausible

should

entitlement

be
to

v.

2008)

if

relief."

(2007);

Morales-Tafion v.
(1st Cir.

denied

524

a

Bell

see

also

F.3d 15,

18

(applying the Bell Atlantic standard to a claim

under 42 U.S.C. §1983).
As

Lu

construe 1:]"
(2007)

is

proceeding

his

complaint.

(quoting Estelle v.

also Hughes v. Rowe,
Universal Corp. v.
(1st

Cir.

facts,

2000).

449

P.£Q

se,

this

Erickson v.
Gamble,

u.s.

5,

429

court

must

Pardus,

551

U. S.

106

(1976));

u.s.

United States Dep't of Educ.,
Where

a

pro

89,

94
see

9 (1980); Instituto de Educacion

se

plaintiff

209 F.3d 18,

presents

23

sufficient

"the court may intuit the correct cause of action," even if

the claim was imperfectly pleaded. Ahmed v.
886,

97,

'" liberally

890

Rosenblatt,

118 F.3d

(1st Cir. 1997).

Ordinarily, a court will not consider documents outside of the
pleadings in a motion to dismiss.
Turabo,

Inc.,

See Rivera v. Centro Medico de

575 F.3d 10, 15 (1st Cir. 2009); Watterson v.

9

Page,

987 F.2d 1,

3 (1st Cir. 1993). From this rule,

the First Circuit

makes a "narrow exception for documents the authenticity of which
[is] not disputed by the parties; for official public records; for
documents

central

to

plaintiffs I

claim;

or

for

documents

sufficiently referred to in the complaint." Watterson, 987 F.2d at
3-4; see also Beddal v. State St. Bank & Trust, Co., 137 F.3d 12,
16-17 (1st Cir. 1998)

(When "a complaint I s factual allegations are

expressly linked to - and admittedly dependent upon - a document
(the

authenticity

of

effecti vely merges

which

into

the

is

not

challenged),

pleadings

and the

that

trial

document
court

can

review it in deciding a motion to dismiss under Rule 12 (b) (6) . n) •
Recently, the First Circuit has reiterated this standard, writing
that in deciding a motion to dismiss a court

"can consider

(a)

'implications from documents' attached to or fairly 'incorporated
into the complaint,
and

(c)

dismiss.
F.3d 50,

'concessions
In

Schantz v.
55-56

(1st

Reynolds Tobacco Co.,
2.

(b)

I

I

'facts' susceptible to 'judicial notice,

in plaintiff s
I

I

response to the motion to

Republican State Leadership Committee,
Cir.

2012)

I

(quoting Arturet-Velez

429 F.3d 10, 13 n.2

v.

669
R.J.

(1st Cir. 2005)).

The First Amendment Claim

Lu alleges that his exclusion from the Library violated his
federal rights to receive information under the First Amendment.
His complaint states a plausible First Amendment claim.
Lu has a

First Amendment

right

10

to access the Library.

The

First Amendment

"protects the

ideas." Stanley v.

Georgia,

right

394 u.S.

Martin v. City of Struthers,

to

receive

557,

information and
(1969);

564

319 u. S. 141, 143

see also

(1943). Although

neither the Supreme Court nor the First Circuit has decided the
issue,

many courts

have

recognized that

the

"right to

receive

information 'includes the right to some level of access to a public
library, the quintessential locus of the receipt of information. '"
Neinast v. Bd. of Trs. of Columbus Metro. Library,
591

(6th Cir. 2003)

346 F.3d 585,

(quoting Kreimer v. Bureau of Police for the

Town of Morristown, 958 F.2d 1242, 1255 (3rd Cir. 1992)); see also
Doe v. City of Albuquerque, 667 F.3d 1111, 1129 (10th Cir. 2012);
Armstrong v. Dist. of Columbia Pub. Library, 154 F. Supp. 2d 67, 75
(D. D.C. 2001).
A public library is often deemed to be a designated public
forum.

See City of Albequerque,

667 F.3d at 1128-30; Kreimer v.

Bureau of Police for Town of Morristown, 958 F.2d 1242, 1256-65 (3d
Cir. 1992); Armstrong, 154 F.Supp.2d at 75; Brinkmeier v. City of
Freeport,

No.

93-20039,

1993 WL

248201,

1993). In a designated public forum,

*3-*6

(N.D.IL

Jul.

2,

content neutral time, place

and manner restrictions on protected First Amendment rights are
permissible if "they are narrowly tailored to serve a significant
they leave open ample alternative

governmental interest, and .
channels
Against

for

communication

Racism,

491

u.s .

of
781,

the
791

11

information."
(1989);

see

Ward

v.

Rock

also

City

of

Albuquerque,

667 F.3d at 1130-31;

Kreimer,

958 F.2d at 1262-65;

Armstrong, 154 F. Supp. 2d at 75-77. A library "is obligated only
to permit the public to exercise rights that are consistent with
the nature of the Library and consistent with the government's
intent in designating the Library as a public forum." Kreimer, 958
F.2d at 1262; see also Neinast,

346 F.3d at 591. Therefore, even

though the property has been "dedicated to some First Amendment
uses .

regulation of the reserved nonpublic uses" must only be

reasonable and not viewpoint based. United States v. Kokinda, 497
U.S. 720, 730 (1990); see also Cornelius v. NAACP Legal Defense and
Educ. Fund, Inc., 473 U.S. 788, 804-06 (1985); Perry Educ. Ass'n v.
Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983); Neinast, 346
F.3d at 591-92; Kreimer,
Within

this

958 F.2d at 1262-65.

framework,

regulations

limiting

permissible

activities or conduct in a library are generally reviewed under a
reasonableness standard as part of the government's authority to
designate the forum for its intended purposes of reading, writing
and

quiet

contemplation.

See

Kreimer,

958

F.2d

at

1262-63;

Brinkmeier, 1993 WL 248201, at *1. 1

1 In some cases a public library has been held to be a limited
public forum and, therefore, a different standard of review of
regulations has been applied. See e.g., Neinast, 346 F.3d at 590­
95; Sund v. City of Wichita Falls, Tex., 121 F. Supp. 2d 530, 563­
68 (N.D.Tex. 2000). In deciding the instant Motion to Dismiss, the
court is not deciding whether the Library is a public or a limited
public forum. That issue will, if necessary, be decided on a motion
for summary judgment or at trial.

12

In their Motion to Dismiss, defendants assert that plaintiff
was barred from entering the Library with his cart and belongings
under two parts of what it represents in its Motion to Dismiss to
be the Library Policy which,

it

says,

prohibits

"[b] ringing in

garbage, articles with a foul odor, or articles which, alone or in
their aggregate, impede the use of the library by other users," and
"[u] sing wheeled devices in Library property or on Library grounds,
except

in

designated

areas,

including

skateboarding,

roller-skating, bicycling, scooters, and shopping carts (exceptions
i.e. wheelchairs, walkers, and strollers)." Def. 's Mot. Dis., 5-6.
The defendants also claim that the Library Policy provides that
"[t]he Library reserves the right to limit the size and number of
items brought into the Library." Id.
further

elaboration,

that

these

Defendants contend, with no

restrictions

are

"reasonable

limitations on use" and are "narrowly tailored to avoid unnecessary
interference with other patrons' use and enj oyment of the library."
Id.
As a threshold matter, it may not be permissible to consider
the

Library

Policy

in

deciding

the

Motion

to

Dismiss.

Lu

has

neither referenced the Library Policy in, nor attached it to, his
complaint.

See Watterson,

987 F. 2d at 3-4;

see also Beddal,

137

F.3d at 16-17. It is not central to Lu's claims as opposed to the
defendants' defenses to them. Moreover, even if the Library Policy
is

considered,

dismissal

of

Lu' s

13

First Amendment

claim is

not

justified. See Blackstone Realty LLC v. Federal Deposit Ins. Corp.,
244 F.3d 193, 197 (1st Cir. 2001)

(to justify dismissal based on an

affirmative defense "review of the complaint,

together with any

other documents appropriately considered under
12 (b) (6)

must

'leave

no

doubt'

that

the

Fed.

plaintiff's

R.

Ci v ,

P.

action

is

barred by the asserted defense") (internal quotation and citation
omi tted) .
In this

case,

as

of

the

reasonableness

other courts
Library

have

Policy

implicitly

must

be

found,

decided,

the

on

an

evidentiary record, on a motion for summary judgment or at trial,
rather than on a motion to dismiss. See Armstrong, 154 F. Supp. 2d
at

69

(allowing plaintiff I s

motion

for

summary

judgement on a

challenge to library's admission policy); Brinkmeier, 1993 WL 248
201 at 2 (denying defendant's motion for summary judgment seeking
to uphold an unwritten library policy that precluded access to
patrons who "harasse[d] and/or intimidate[d] other library patrons
or

employees"

although

"conceptually

inoffensive

to

the

First

Amendment," finding the policy was unreasonable because it was too
"broadly

stated

conduct it

and

[sought]

lack [ed]

reasonable

to prevent.");

limitations

Kreimer,

as

to

the

958 F.2d at 1262-63

(upholding library rules on cross-motions for summary judgment).
Indeed, the only two cases which defendants cite to support their
Motion to Dismiss actually involved motions for summary judgment.
See Neinast, 346 F.3d at 588; Kreimer, 958 F.2d at 1246. It would

14

also

be

premature

to

decide

the

reasonableness

of

the

Library

Policy in this case on the present record even if that policy could
now be properly considered. See Blackstone Reality LLC, 244 F.3d at
197.
In addition,

liberally construed, the complaint alleges that

the Library Policy does not describe the Library's actual practice
of

discriminating

against

Lu

and

other

homeless

people.

For

example, Lu alleges that:
(11) On information and belief, through custom and usage
[the
Library]
has
quietly
excluded,
ej ected
the
undesirable, not just Lu.

* * *
(12) Defendants' actions imposes an undue burden on Lu's
admission
to
[the
Library]
and
constitutes
constitutionality
impermissible
classifications
of
persons for the purpose of admitting patrons: homeless or
not; patrons with belongings in tote bags (paper or
plastic) only; patrons with belongings in a carriage; and
patrons with belongings in suitcases.

Id.

':II':II10,

12.

people cannot

Lu

also alleges

corne

that

he was

told that

in with their belongings."

Id.

"homeless

':II7 (e).

These

allegations assert that the actual conduct of the Library's staff,
as

opposed to

any possible

facially

reasonable

written policy,

violated his First Amendment right to access the Library. To the
extent,

if any,

that Lu challenges the Library Policy, he asserts

a plausible as applied challenge. Evidence is required to resolve
any such challenge.

15

3.

The Equal Protection Claim

The foregoing analysis and conclusion is also applicable to
Lu's claim that his Fourteenth Amendment right to equal protection
has been violated.
To plead a viable equal protection claim, a plaintiff
must
allege
facts
indicating
selective
treatment
'compared with others similarly situated
[was]
based on impermissible considerations such as race,
religion, intent to inhibitor punish the exercise of
constitutional rights, or malicious or bad faith intent
to injure a person. '
Aponte-Torres, 445 F.3d at 57
v. R.I. Hous. & Mortg.
A

plaintiff's

(quoting Barrington Cove Ltd. P'ship

Fin. Corp., 246 F.3d 1, 7 (1st Cir. 2001).

complaint

must

"identify

and

relate

specific

instances where persons situated similarly in all relevant aspects
were

treated differently,

demonstrate that

instances which have

[plaintiff was]

oppression.'" Rubinovitz v.
1995)
19

'singled .

Roqato,

60

F.3d

the

capacity to

out for unlawful
906,

910

(lst Cir.

(citing Dartmouth Review v. Dartmouth College, 889 F.2d 13,

(1st Cir.

San German,

1989)); see also Ayala-Sepulveda v. Municipality of
671

F.3d 24,

32

(1st Cir.

2012)

("Some evidence of

actual disparate treatment is a 'threshold requirement' of a valid
equal protection claim.")

(citing Estate of Bennett,

548 F. 3d at

66) ) .
As
alleges

described

earlier,

that

and

Lu

liberally

other

homeless

construed,

the

individuals

complaint
have

selectively excluded from the Library based on their status,

16

been
and

that this was done to inhibit the exercise of their First Amendment
right to access to the Library.

Lu generally describes the alleged

experiences of other individuals. See Compo
protection

claim was

whether more
Motion

to

earlier,

Lu' s

only

claim,

specific allegations

Dismiss

might

be

~~7,

closer

12. If the equal
consideration

are necessary to

appropriate.

However,

of

survive the
as

explained

Lu is a pro se litigant and has stated a viable First

Amendment claim. Defendants will not be prejudiced by the continued
litigation as well of the equal protection claim, which is a close
corollary of the First Amendment claim.
Therefore,

the court finds that Lu has alleged a plausible

claim that his Fourteenth Amendment right to equal protection has
been violated.

Once again, the merit of this claim will have to be

decided on a motion for summary judgment or at trial. Cf. Kreimer,
958 F.2d at 1269

(reversing the granting of a motion for summary

judgment alleging an equal protection violation finding "that the
record

is

devoid

of

any

facts

that

support

the

court's

determination that the Library acted with discriminatory intent" in
enacting its policy.).
4.

The Due Process Claim

Lu does not state whether he is asserting a violation of his
right to substantive due process, procedural due process, or both.
To

state

a

viable

substantive

due

process

claim,

Lu

must

allege facts that would permit a reasonable fact finder to conclude

17

that the challenged actions were so egregious as to "shock the
conscience." See County of Sacramento v. Lewis, 523 u.S. 833, 855
(1988); see also Gonzalez-Droz v. Gonzales-Colon,

660 F.3d 1, 16

(lst Cir. 2011). "To sink to this level, the challenged conduct must
be

'truly outrageous,

unci v i Li. zed,

and intolerable.'" Gonzalez­

Droz, 660 F.3d at 16 (quoting Hasenfu v. LaJeunesse, 175 F.3d 68,
72

(1st Cir. 1999)). The protections afforded by the substantive

component

of

the

Due

Process

Clause

are

generally

limited

to

"matters relating to marriage, family, procreation, and the right
to bodily integrity."
272

(1994).

Albright v. Oliver, 510 u.S. 510 u.S. 266,

Such matters are not implicated in the instant case.

Nor, in any event,

could defendants' alleged conduct be found to

shock the conscience. See Gonzalez-Droz, 660 F.3d at 16.
"To

establish

a

procedural

due

process

violation,

the

plaintiff 'must identify a protected liberty or property interest
and allege that the defendants,

acting under color of state law,

deprived him of that interest without constitutionally adequate
process. '" Id. at 13

(quoting Aponte-Torres, 445 F.3d 50, 56 (1st

Cir. 2006); see also Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
The parties have not addressed the requirements of a procedural due
process claim in their memoranda. Nor do they address whether the
explanation of the Library Policy,

and discussion of it that Lu

alleges occurred, satisfies the requirements of due process, as the
Sixth Circuit held in similar circumstances in Neinast. See, 346

18

F.3d at 597.
In addition, without consideration of the Library Policy, and
perhaps other evidence, it is not clear whether the exclusion of Lu
from the Library involved a random unauthorized act for which Lu
would have to prove there was no adequate post-deprivation remedy.
See Hudson v.

Palmer,

468 u.S.

517,

531-533

(1984).

Lu has not

alleged that he has availed himself of the remedies provided by
state law or that it would be futile to do so.

See id.

at

539

(O'Connor, J. Concurring); Mpala v. City of New Haven, No. 11-1724,
2013 WL 657649,

at *3-*4

Haight,

Supp.

648

F.

(D.

1169,

Conn.
1175

Feb.
(D.

22,

Mass.

2013);

Lamoureux v.

1986).

As

explained

below, Lu has alleged a plausible Massachusetts Civil Rights Act
("MCRA")

claim,

which may

suggest

the

adequacy

of

state post­

deprivation remedies if the Hudson doctrine applies.
In view of the
addressed the

fact

that

the

issue of whether a

parties

have

not

adequately

protected liberty interest

is

implicated or the proper framework for analyzing LUIS procedural
due process claim, the Motion to Dismiss it is being denied without
prejudice

to

further

consideration

on

a

motion

for

summary

judgment.
5.

The Massachusetts Civil Rights Act Claim

With regard to the MCRA,

Lu has

claim for which relief can be granted.

stated a

plausible damage

The MCRA prohibits among

other things, an interference with any federal right by "threats,

19

intimidation, or coercion." M.G.L. c. 12, §llI; see also Davis v.
Rennie, 264 F.3d 86, 111 (1st Cir. 2001).
As explained earlier, LuIs First Amendment right to access to
the Library is at the heart of this case.

Lu alleges that Hulme

told him that neither he nor any other homeless person could "corne
in the Library with belongings." Compo

Lu further alleges

~7(e).

that "it was understood by all present .

that if Lu did not

comply then and there [by leaving the Library], a charge such as
trespassing would be lodged against [him]." Id.

~6.

In Batchelder

v. Allied Stores Corp., the SJC stated:
A uniformed security officer ordered Batchelder to stop
soliciting and distributing his political handbills.
Though Batchelder objected, he complied.
This was
sufficient intimidation or coercion to satisfy the
statute. [M.G.L. C. 12, §llI].
393 Mass. 819, 823 (1985). LuIs allegations are comparable to those
in

Batchelder.

They

are,

therefore,

sufficient

to

survive

the

Motion to Dismiss his MCRA claims.
C.

The Motion for a TRO

With his verified complaint, Lu has filed a Motion for TRO.
He has not filed a memorandum of law as required by Rule 7.1(B) (1)
of the Local Rules of the United States District Court for the
District

of Massachusetts.

Nor

does

Lu

specify

the

inj uncti ve

relief he seeks. The court infers that he request an order that he
be allowed to enter the Library, with his cart, during the pendency
of this case. Therefore, the court is addressing the Motion for a

20

TRO.

"Under this circuit's formulation, trial courts follow a four­
part

framework

in

determining

whether

the

grant

or

denial

of

preliminary injunctive relief is appropriate. The district court
considers:

first,

the likelihood that the party requesting the

injunction will succeed on the merits;

second,

the potential for

irreparable harm if the injunction is denied; third, the hardship
to the nonmovant if enjoined compared to the hardship to the movant
if the injunctive relief if denied; and fourth, the effect of the
court's ruling on the public interest." Water Keeper Alliance v.
U.s.

Dept.

Of

Defense,

Ross-Simons of Warwick,

271 F.3d 21,

30

(1st Cir.

Inc. V. Bacccarat,

Inc.,

2001)

(citing

102 F.3d 12, 16

(1st Cir. 1996)).
As the Court of Appeals for the First Circuit has said on a
number of occasions, the like likelihood of success on the merits
is

of primary

cases).

It

importance.

is

the

sine

Ross-Simons,
qua

non

for

102

F.3d at

obtaining

a

16

(citing

preliminary

injunction. Gately v. Commonwealth of Massachusetts, 2 F.3d 11, 12
(1st Cir. 1993).
In addition, where, as here, the injunction would require an
affirmative act by the non-moving party,

the

"request warrants

extra scrutiny." L.L. Bean, Inc. v. Bank of America, 630 F. SUpp.
2d

83,

89

(D.Me.

2009).

This

is

because

courts

"may

be

more

reluctant to grant mandatory injunctions than prohibitory ones."

21

NBA Properties,

Inc.

v.

Gold,

895 F.2d 30,

33

(1st Cir.

1990).

Therefore, a mandatory injunction "should be granted only in those
circumstances where the exigencies of the situation demand such
relief." Massachusetts Coal of Citizens with Disabilities v. Civil
De£. Agency, 649 F.2d 71, 76, n.7

(lst Cir. 1981).

In the instant case, Lu's allegations,

liberally construed,

state a plausible claim for the violation of his First Amendment
rights, among others.

They do not, however, establish the required

reasonable likelihood of success on the merits. The Trustees assert
that the Library Policy is a valid regulation of First Amendment
rights and was fairly applied to Lu.

The facts in every case are

unique. However, such contentions have been proven to be correct in
other cases. See e.g., Neinast, 346 F.3d at 592-598; Kreimer, 958
F.2d at 1250-70. Lu has offered no evidence to refute defendants'
contention

that

the

Library

Policy

will

be

proven

to

be

a

reasonable and valid limitation on the exercise of First Amendment
rights.

Nor

are

the

allegations

in

his

verified

complaint

sufficient to establish that Lu is likely to prove that a facially
valid policy was applied in a discriminatory way against him.
The
freedoms

court
for

recognizes
even

minimal

that

"the

periods

loss
of

of
time,

First

Amendment

unquestionably

constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373­
74 (1976). However, Lu has not shown that the balance of hardships
favors him; that the public interest would be served by issuing the

22

requested TROi

or,

most significantly,

that he has a reasonable

likelihood of succeeding on the merits of his case. Therefore, the
Motion for TRO is being denied.

D.

Motions for Sanctions

As indicated earlier,
LUIS

harassing

conduct

in 2002,
in

filing

in another case,
frivolous

because of

claims

against

defendants associated with the Harvard School of Dental Medicine,
this court ordered Lu not to file any further documents,

in the

Uni ted States District Court for the District of Massachusetts,
relating to the claims in that case and also ordered Lu to attach
that Order to any submission in this District Court in any case.
See Mar. 29 2002 Order, Harvard School of Dental Medicine, No. 00­
11492-MLW, ECF No. 49.

Lu failed to attach the 2002 Order to his

submissions in this case.

Defendants have moved for sanctions in

the form of its reasonable costs and attorneys fees in defending
the instant action. They assert that Lu has filed at least 18 cases
in the District Court,

has frequently failed to attach the 2002

Order to his submissions, and has been undeterred by being ordered
by Judge Reginald Lindsay to pay $500 - and paying - for multiple
failures to comply with court orders.
Lu opposes the request for sanctions against him and asserts
that defendants should be sanctioned under Federal Rule of Civil
Procedure

11

for

filing

a

baseless

sanctions

is without merit because the defendants had a proper

23

motion.

Lu' s

request

for

basis to contend that Lu violated the 2002 Order.

Indeed, they are

correct in their contention.
The question of whether Lu should be sanctioned for violating
the 2002 Order and,
vexing.

if so, what sanction is appropriate,

is more

The disregard of court orders may constitute a criminal

and/or civil contempt. If wilful, Lu could be fined or incarcerated
for a violation. See United States v. Marguardo, 149 F.3d 36, 40-41
(1st Cir. 1998); United States v. Simmons, 215 F.3d 737, 741
Cir. 2000).

In addition,

repeated violations of court orders may

justify the dismissal of a case.
Rico,

675 F.3d 88,

89

(1st

See e.g., Mulero-Abreu v. Puerto

(1st Cir.

2012);

Damiani v.

Rhode Island

Hospital, 704 F.2d 12, 16 (1st Cir. 1983)
However, in this case, Lu is homeless and evidently indigent.
Therefore,

it would be distracting,

and perhaps

unavailing,

to

consider now whether monetary sanctions should be imposed on him.
In addition, he has plausibly stated claims that his constitutional
rights have been violated by the defendants.

It is not unjust that

they incur the costs to date of litigating those claims.
However, Lu is hereby put on notice that a failure to obey any
order or applicable rule in this

case may result

in sanctions,

including possibly dismissal. See Damiani, 704 F.2d at 16; Mulero­
Abreu, 675 F.3d at 89. It would be unfortunate if Lu's conduct in
this

case prompts

its dismissal

rather

than

a

decision on the

merits. That, however, will be determined by Lu's conduct.

24

Educated by the Motion to Dismiss, this court now views this
case

as

presenting

exceptional

circumstances

that

justify

the

appointment of counsel for Lu if he would like to be represented by
an attorney. See 28 U.S.C. §1915(e) (1); Cookish v. Cunningham, 787
F.2d 1,

2

(1st Cir.

1986).

Appointing counsel to represent Lu

would also reduce the risk that future orders will be disobeyed and
the orderly progress of this case will be disrupted.
is being ordered to report, by April 22,

Therefore, Lu

2013, whether or not he

requests that counsel be appointed to represent him in this case.
VI.

ORDER
In view of the foregoing,

it is hereby ORDERED that:

1.

for

Plaintiff's

Motion

Temporary

Restraining

Order

(Docket No.2) is DENIED.
2.

Plaintiff's

Motion

to

Disqualify

So

Called

Counsel

(Docket No.7) is DENIED.
3.

Defendants George Hulme and Trustees of the Boston Public

Library's Motion to Dismiss Plaintiff's complaint Pursuant to Fed.
R.

Civ.

P.

12 (b) (6)

is

DENIED

in

part

and

ALLOWED

in

part.

Specifically, the motion is allowed as to the claim of a violation
of Lu' s

right

to

substantive

due

process

under

the

Fourteenth

Amendment of the United States Constitution, and denied as to the
remaining claims.
4.
Library's

Defendants George Hulme and Trustees of the Boston Public
Motion

for

Fees,

Costs

25

and

Sanctions

Against

the

Plaintiff (Docket No. 13) is DENIED without prejudice.
5.

Plaintiff's Opposition to Motion for Attorney's Fees and

Cross-Motions for Sanctions and for

Factual and Legal

Attorney-Client Relationship (Docket No.
6.

Lu shall report,

by April 22,

Proof of

14) is DENIED.
2013,

whether or not he

requests that counsel be appointed to represent him in this case.
After the issue of whether Lu will be represented by counsel is
resolved, the court will establish a schedule for the remainder of
this case.

~ ..
UNI1iilS

26

~ES

S>, ..

-P. ...A(~

DISTRICT JUDGE

~