Trisvan et al v. Biden et al

Filing 5

MEMORANDUM & ORDER: Trisvan's application to proceed in forma pauperis is granted solely for the purpose of this order, but his Complaint is dismissed without prejudice. Trisvan's Section 1983 claim against the New York Conven tion Center Operating Corporation is dismissed for failure to file in the correct district, and his remaining claims are dismissed for failure to state a claim. The Clerk of Court is directed to enter judgment and to close this case. The Court certi fies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is also respectfully directed to mail a copy of this order to Trisvan and note the mailing on the docket. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 7/30/2022. (Hsu, Aaron)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
JOHN TRISVAN,
MEMORANDUM & ORDER
21-CV-5684(EK)(LB)

Plaintiff,
-againstJOSEPH R. BIDEN, JR., et al.,
Defendants.
------------------------------------x
ERIC KOMITEE, United States District Judge:

Plaintiff John Trisvan filed this pro se action on
October 8, 2021 against President Joseph R. Biden, Jr.; former
Mayor Bill de Blasio; 1 the United States Department of Labor
(DOL); the Occupational Safety and Health Administration (OSHA);
the Brooklyn Academy of Music; the New York Convention Center
Operating Corporation (commonly known as the “Javits Center”);
and the “United Postal Service,” which appears to be a reference
to the United Parcel Service (UPS). 2

Compl., ECF No. 4.

1 Eric Adams became the Mayor of New York City on January 1, 2022.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Eric Adams is
substituted for Mayor de Blasio. The Clerk of Court is respectfully directed
to update the caption accordingly.
2 The complaint lists the address for the “United Postal Service” as 55
Glenlake Parkway NE, Atlanta, Georgia 30328. Compl. 2. According to the
records of the Georgia Corporations Division, this address corresponds to
United Parcel Service, Inc. (the private company) rather than the United
States Postal Service. See Zhu v. Matsu Corp, No. 18-CV-0203, 2022 WL
972422, at *20 n.4 (D. Conn. Mar. 31, 2022) (taking judicial notice of the
registered address of a corporation “based on a Connecticut Business Records
Search”).

Trisvan’s claims are premised on vaccination
requirements imposed by the federal government and the City of
New York.

His application to proceed in forma pauperis is

granted solely for the purpose of this order, but his Complaint
is dismissed without prejudice, as set forth below.
I.

Background

Trisvan alleges that his religious beliefs prevent him
from receiving the COVID-19 vaccination.

Compl. 4.

His

Complaint sets out three categories of complaints that stem from
his unvaccinated status.
First, Trisvan claims that because of his unvaccinated
status, the Brooklyn Academy of Music refused to allow him to
attend a showing of The Lost Daughter.

Compl. 3.

Similarly, he

alleges that New York Convention Center Operating Corporation
refused to allow him to attend the “International Franchising
Expo” at the Javits Center.

Id.

Second, Trisvan alleges that he sought employment from
UPS but was told he could not work for that entity unless and
until he obtained a COVID-19 vaccine.

Compl. 4.

Third, Trisvan claims that President Biden unlawfully
issued, and DOL and OSHA unlawfully enforced, two executive
orders: Executive Order 14042, titled “Executive Order on
Enduring Adequate COVID Safety Protocols for Federal
Contractors”; and Executive Order 14043, “Executive Order on
2

Requiring Coronavirus Disease 2019 Vaccination for Federal
Employees.”

Compl. 4–5.

Similarly, he claims that Mayor De

Blasio unlawfully promulgated Emergency Executive Order 225,
which prohibits patrons from entering indoor business areas
without proof of vaccination status.

Compl. 1.

As grounds for relief, Trisvan cites 42 U.S.C. §§ 1983
and 1985; the First, Fourth, Eighth, Tenth, and Fourteenth
Amendments to the U.S. Constitution; Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; and the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12112–12117.
He seeks compensatory and injunctive relief.
II.

Standards of Review

Under 28 U.S.C. § 1915(e)(2)(B), a court may dismiss
an in forma pauperis action if the action: “(i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.”

Additionally, if the Court

“determines at any time that it lacks subject-matter
jurisdiction, the Court must dismiss the action.”

Fed. R. Civ.

P. 12(h)(3); see also Cortlandt St. Recovery Corp. v. Hellas
Telecomms., S.À.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015)
(district court should dismiss an action for lack of subject

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matter jurisdiction pursuant to Rule 12(b)(1) when it “lacks the
statutory or constitutional power to adjudicate it”). 3
III.

Discussion

Trisvan has failed to state a claim for any asserted
cause of action.
A.

I discuss each in turn.

Title VII and ADA Claims
Trisvan claims that UPS violated the ADA and Title VII

in refusing to hire him.

Compl. 4. 4

But he has failed to allege

that he has exhausted his administrative remedies, as required
to sustain an action under either statute.

See McPartlan-Hurson

v. Westchester Cmty. Coll., 804 F. App’x 41, 43 (2d Cir. 2020)
(“Pursuant to Title VII and the ADA, a plaintiff must exhaust
her administrative remedies by filing a charge with the EEOC
within 300 days of a discriminatory act.”).

Thus, those claims

are dismissed under Section 1915(e)(2)(B)(ii).

Matos v. Hove,

940 F. Supp. 67, 71 (S.D.N.Y. 1996) (a plaintiff’s “Title VII
claims must be dismissed [if] she has failed to exhaust her
administrative remedies”); Shrira v. State Univ. of N.Y. at

3 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
4 I construe this claim to be asserted against UPS only because the
complaint does not contain a “short and plain statement” asserting grounds
for relief against any other defendant under Title VII or the ADA. See Fed.
R. Civ. P. 8(a). In dismissing this claim for failure to exhaust
administrative remedies, I express no view (at this time) on whether
Trisvan’s ADA or Title VII allegations are sufficient to state a claim on
which relief could be granted.

4

Buffalo, No. 02-CV-323A, 2004 WL 1083241, at *2 (W.D.N.Y. Feb.
10, 2004) (same, for ADA claims).
B.

Section 1985 Claims
Trisvan has likewise failed to state a claim under 42

U.S.C. § 1985.

“[T]o make out a violation of § 1985(3) . . . ,

the plaintiff must allege and prove four elements: (1) a
conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities
under the laws; and (3) an act in furtherance of the conspiracy;
(4) whereby a person is either injured in his person or property
or deprived of any right or privilege of a citizen of the United
States.”

United Brotherhood of Carpenters & Joiners of Am.,

Loc. 610, AFL-CIO v. Scott, 103 S. Ct. 3352, 3356 (1983).
A ”conspiracy” requires, for purposes of Section 1985,
“a plurality of actors committed to a common goal.”

Frooks v.

Town of Cortlandt, 997 F. Supp. 438, 456 (S.D.N.Y. 1998), aff’d,
182 F.3d 899 (2d Cir. 1999).

The Court is unable, even with a

liberal eye and broad construction, to identify any factual
allegations supporting the existence of a conspiracy.
claim therefore is dismissed.

This

See Geldzahler v. New York Med.

Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (“[D]ismissal
under Rule 12(b)(6) is proper if the complaint lacks an
allegation regarding an element necessary to obtain relief,” and
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“the duty to liberally construe a plaintiff’s complaint is not
the equivalent of a duty to re-write it.”).
C.

Section 1983 Claims
The complaint also falls short of alleging facts

sufficient to support an entitlement to relief under 42 U.S.C.
§ 1983.
1.

Private Defendants
Generally speaking, Section 1983 applies only to the

conduct of state actors, not private entities.
Bowen, 833 F.2d 21, 23 (2d Cir. 1987).

See Chin v.

As UPS and the Brooklyn

Academy of Music are private entities, this cause of action is
dismissed as against them.
2.

Federal Defendants
President Biden is a federal government official;

thus, claims against him “would not arise under § 1983, which
applies to state government officials.”

Young v. Trump, No. 20-

CV-1546, 2020 WL 1331942, at *2 (S.D.N.Y. Mar. 20, 2020) (citing
Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017)).

And “Section

1983 does not provide plaintiff with a right of action to sue a
federal agency” such as DOL or OSHA.

In re Zyprexa Prod. Liab.

Litig., No. 04-MDL-1596, 2007 WL 2332544, at *1 (E.D.N.Y. Aug.

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15, 2007).

Thus, the Section 1983 claims against those

defendants are dismissed. 5
3.

Mayor of New York
Trisvan’s Section 1983 claim against the Mayor of New

York City is dismissed as moot, to the extent he is seeking
injunctive relief. 6

The basis of Trisvan’s claim against the

Mayor is Emergency Executive Order 225.

Compl. 4.

Order 225

required indoor entertainment, recreation, dining, and fitness
facilities to deny entry to patrons and employees unless the
individual displayed proof of Covid-19 vaccination.

See Office

of the Mayor, City of New York, Emergency Executive Order 225,
Key to NYC: Requiring COVID-19 Vaccination for Indoor
Entertainment, Recreation, Dining and Fitness Settings (Aug. 16,
2021), https://www1.nyc.gov/office-of-the-mayor/news/225001/emergency-executive-order-225.

Even if construed as alleging claims under Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), Trisvan still
has not adequately stated a claim, because neither the President of the
United States nor federal agencies may be sued under Bivens. See Nixon v.
Fitzgerald, 457 U.S. 731, 749 n.27 (“[T]he President is absolutely immune
from civil damages liability for his official acts in the absence of explicit
affirmative action by Congress.”); FDIC v. Meyer, 510 U.S. 471, 485–86 (1994)
(refusing to extend Bivens to “agencies of the Federal Government”).
5

Trisvan does not allege that he is entitled to monetary damages from
New York City as a result of Emergency Executive Order 225, at least not in a
manner that satisfies the pleading requirements of the Federal Rules of Civil
Procedure. See Compl. 4; see also Fed. R. Civ. P. 8(a)(2) (a complaint must
contain “a short and plain statement of the claim showing that the pleader is
entitled to relief”).
6

7

However, on February 27, 2022, Mayor Eric Adams lifted
that order effective March 7, 2022.

See Office of the Mayor,

City of New York, Mayor Adams’ Statement on Mask Mandates in
Schools, Vaccine Mandates Across NYC (Feb. 27, 2022),
https://www1.nyc.gov/office-of-the-mayor/news/096-22/mayoradams-on-mask-mandates-schools-vaccine-mandates-across-N.Y.C.
The Court may take judicial notice of that municipal act.

Cf.

Polo v. City of New York, No. 12-CV-3742, 2013 WL 5241671, at *1
(E.D.N.Y. Sept. 17, 2013) (taking judicial notice of a municipal
law).
Federal courts “lack jurisdiction to review an appeal
that is moot.”

Reale v. Lamont, No. 20-3707-CV, 2022 WL 175489,

at *1 (2d Cir. Jan. 20, 2022).

“A case is moot when the issues

presented are no longer live or the parties lack a legally
cognizable interest in the outcome.”
51, 52 (2d Cir. 2015).

Tann v. Bennett, 807 F.3d

Because Order 225 has been rescinded,

any claim for equitable relief on this basis is now moot.

See,

e.g., Chrysafis v. Marks, 15 F.4th 208, 213 (2d Cir. 2021)
(“Constitutional challenges to statutes are routinely found moot
when a statute is amended.”); Lamar Advert. of Penn, LLC v. Town
of Orchard Park, New York, 356 F.3d 365, 377 (2d Cir. 2004)
(“[W]e are hesitant to hold that a significant amendment or
repeal of a challenged provision that obviates the plaintiff’s
claims does not moot a litigation, absent evidence that the
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defendant intends to reinstate the challenged statute after the
litigation is dismissed, or that the municipality itself does
not believe that the amendment renders the case moot.”).
To the extent Trisvan is seeking monetary damages on
this claim, rather than injunctive relief, the claim is
dismissed for failure to state a claim.

The Federal Rules of

Civil Procedure require that a complaint contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Read liberally,

Trisvan’s Complaint alleges that he was subject to religious
discrimination.

But it says little to nothing about how.

Trisvan “fails to mention his religious beliefs and fails to
state how [the defendant] failed to accommodate his alleged
religious beliefs,” which runs afoul of Rule 8(a) and therefore
“fails to state a claim of religious discrimination.”

Smith v.

Frichtl Steel & Welding, No. 04-CV-4239, 2005 WL 1267203, at *1
n.1 (S.D. Ill. Apr. 29, 2005).
4.

New York Convention Center Operating Corporation
(Javits Center)
That leaves Trisvan’s claim against the New York

Convention Center Operating Corporation, a New York State
Legislature–created “public benefit corporation” that operates
the Javits Center in Manhattan.

See Aguilar v. N.Y. Convention

Ctr. Operating Corp., 174 F. Supp. 2d 49, 50 (S.D.N.Y. 2001).

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But given that the Corporation is the only remaining defendant
at this point, Trisvan’s claims against it are not properly
filed here.
Pursuant to 28 U.S.C. § 1391, venue is proper only in
“(1) a judicial district where any defendant resides, if all
defendants reside in the same State, (2) a judicial district in
which a substantial part of the events or omissions giving rise
to the claim occurred . . . or (3) a judicial district in which
any defendant may be found, if there is no district in which the
action may otherwise be brought.”

28 U.S.C. § 1391(b).

A

defendant corporation generally resides “in any judicial
district in which such defendant is subject to the court’s
personal jurisdiction with respect to the civil action in
question.”

Id. § 1391(c)(2).

A corporation resident (and

subject to personal jurisdiction) in a state with more than one
judicial district is “deemed to reside in any district in that
State within which its contacts would be sufficient to subject
it to personal jurisdiction if that district were a separate
State.”

Id. § 1391(d).
The Court takes judicial notice of the fact that the

Javits Center is located in New York County.
F. Supp. 2d at 50; Compl. 2–3.

See Aguilar, 174

His claims thus arose in

Manhattan, in the Southern District of New York.

See Compl. 3–4

(“Plaintiff attempted to attend the International Franchising
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Expo . . . held by Defendant New York Convention Center
Operating Corp., at the Javits Center, located at 429 11th
Avenue, New York, NY 10001 . . . .”).

Trisvan also alleges no

facts indicating that the Corporation would be subject to
personal jurisdiction in this District if it were a separate
state.

Accordingly, Trisvan’s Section 1983 claim against the

Corporation should have been brought in the United States
District Court for the Southern District of New York, which
encompasses New York County.

See 28 U.S.C. § 112(b). 7

therefore dismisses this claim.

The Court

See 28 U.S.C. § 1406(a) (“The

district court of a district in which is filed a case laying
venue in the wrong . . . district shall dismiss, or if it be in
the interest of justice, transfer such case to any
district . . . in which it could have been brought.”).
IV.

Conclusion

For these reasons, Trisvan’s Section 1983 claim
against the New York Convention Center Operating Corporation is
dismissed for failure to file in the correct district, and his
remaining claims are dismissed for failure to state a claim.
The Clerk of Court is directed to enter judgment and to close
this case.

7 The undersigned previously was a member of the Board of Directors of
the Corporation, but that affiliation ended in 2017 — long before the events
recounted in Trisvan’s Compolaint, which took place in 2021.

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The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this order would not be taken in good faith
and therefore in forma pauperis status is denied for purpose of
an appeal.

See Coppedge v. United States, 369 U.S. 438, 444–45

(1962).
The Clerk of Court is also respectfully directed to
mail a copy of this order to Trisvan and note the mailing on the
docket.
SO ORDERED.
/s/ Eric Komitee__________
ERIC KOMITEE
United States District Judge
Dated:

July 30, 2022
Brooklyn, New York

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