Raymond v. City of New York

Filing 29

MEMORANDUM & ORDER -- For the reasons set forth in the attached Memorandum & Order, Defendant's Motion to Dismiss, ECF No. 24, is GRANTED and the Amended Complaint, ECF No. 16, is dismissed. Dismissal of Plaintiff's state law claim is without prejudice. The Clerk of Court is directed to enter judgment accordingly and to close the case. SEE ATTACHED ORDER. Ordered by Judge Diane Gujarati on 2/5/2024. (AC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
Neil Raymond,
Plaintiff,
-against-

MEMORANDUM & ORDER
21-CV-06897 (DG) (RML)

The City of New York,
Defendant.
---------------------------------------------------------------X
DIANE GUJARATI, United States District Judge:
On December 14, 2021, Plaintiff Neil Raymond commenced this action against
Defendant City of New York, stemming from his requests to make a mural “recognizing that
lives other than black lives matter” and Defendant’s denial of his requests. See generally ECF
No. 1. On February 6, 2023, Plaintiff filed the Amended Complaint. See Amended Complaint
(“Am. Compl.”), ECF No. 16.
Plaintiff’s Amended Complaint asserts two causes of action: (1) Violation of the First
Amendment of the U.S. Constitution as Applied Through 42 U.S.C. § 1983 (the “First
Amendment claim”); and (2) Violation of the New York State Constitution, Article 1, Section 8
(the “state law claim”). See Am. Compl. ¶¶ 36-42. Plaintiff alleges that he spent hundreds of
dollars on materials and has suffered emotional distress, loss of confidence and purpose, loss of
respect among his peers, and other damages. See Am. Compl. ¶¶ 33-34. Plaintiff seeks a
declaration that Defendant has violated Plaintiff’s rights under the New York State Constitution
and under the First Amendment, an order requiring Defendant to allow Plaintiff to present his
chosen message in an appropriate public venue within the City of New York, financial damages,
compensatory damages, and legal fees and costs. See Am. Compl. at 8-9.
Pending before the Court is Defendant’s Motion to Dismiss the Amended Complaint

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (the “Motion to Dismiss”).
See Notice of Motion to Dismiss, ECF No. 24; see also Declaration in Support of Motion to
Dismiss (“Murray Declaration”), ECF No. 25; 1 Memorandum of Law in Support of Motion to
Dismiss (“Def.’s Br.”), ECF No. 26; Reply Memorandum of Law in Further Support of Motion
to Dismiss (“Def.’s Reply”), ECF No. 28. Plaintiff opposes the Motion to Dismiss. See
Plaintiff’s Memorandum of Law in Opposition to Motion to Dismiss (“Pl.’s Br.”), ECF No. 27.
For the reasons set forth below, Defendant’s Motion to Dismiss is granted and the
Amended Complaint is dismissed in its entirety.
BACKGROUND
I.

Factual Background 2
Plaintiff alleges that Black Lives Matter (“BLM”) is a political movement that started in

2013 and became extremely popular in 2020. See Am. Compl. ¶ 12. Plaintiff alleges that “Bill
DiBlasio, the mayor of New York City from 2014 through 2021, has been especially supportive
of BLM,” “stated that BLM is an issue ‘beyond politics,’” and “promised that each borough
would receive a BLM mural.” See Am. Compl. ¶¶ 13, 15. 3 Plaintiff alleges that, “on July 9,

1

Together with the Murray Declaration, ECF No. 25, Defendant submitted seventeen exhibits,
see ECF Nos. 25-1–25-3. In referring to these exhibits, the Court uses the letters assigned to
the exhibits in the Murray Declaration. In citing to these exhibits, the Court refers to the
pagination generated by the Court’s electronic case filing system (“ECF”), rather than to the
exhibits’ internal pagination. All other citations are to the cited document’s internal
pagination.

2

The following facts, which are viewed in the light most favorable to Plaintiff, are drawn from
the Amended Complaint and from certain documents incorporated by reference in the
Amended Complaint or integral to the Amended Complaint, as to which there is no dispute
regarding authenticity, accuracy, or relevance.

3

Where quoting from the Amended Complaint, the Court retains Plaintiff’s spelling. The
Court, however, notes that Plaintiff misspells, inter alia, former Mayor Bill de Blasio’s
surname.
2

2020, the City of New York, led by DiBlasio, painted the words ‘Black Live Matters’ outside
Trump Tower” and alleges that “the words ‘Black Lives Matter’ were painted in large, yellow
letters between Brooklyn Borough Hall and the Brooklyn municipal building on Joralemon
Street.” See Am. Compl. ¶¶ 14, 16. Plaintiff alleges that the City of New York, at all relevant
times, “was speaking with only message: that only Black Lives Matter.” See Am. Compl. ¶ 18.
Plaintiff alleges that he, “seeking to acknowledge that more than only black lives matter, sought
to make a more inclusive mural, recognizing that lives other than black lives matter,” see Am.
Compl. ¶ 19, and “sought permission from the City of New York to place this mural so as to
avoid removal of the mural or penalties (from fines to imprisonment) against him and those
helping him with the mural,” see Am. Compl. ¶ 20. Plaintiff alleges that he “was not asking
Defendant City of New York to promote, sanction, or otherwise support his message, which
message he knew was in direct contradiction of the message which Defendant City of New York
had been promoting.” See Am. Compl. ¶ 21.
A.

July 2020 Correspondence

Plaintiff alleges that in July 2020, Plaintiff emailed “DiBlasio’s office” and asked if he
could make a mural. See Am. Compl. ¶ 22. In an email dated July 2, 2020, Plaintiff wrote: “I
would like to paint a message like Black Lives Matter on the street too. Just like is being done in
lower Manhattan. What form do I need to fill out to be allowed to do it?” See Def.’s Ex. K. 4 In

4

The Court considers emails dated July 2, 2020, July 13, 2020, July 22, 2020, and August 5,
2020 and an application dated September 8, 2020, see Def.’s Exs. K-P, in connection with
deciding the instant motion because these documents are incorporated by reference in – and
integral to – the Amended Complaint, and because there is no dispute regarding the
documents’ authenticity, accuracy, or relevance. See Pl.’s Br. at 7 n.2 (“Plaintiff takes no
issue with the attachment and consideration of various application and response documents
discussed in the Amended Complaint. (Defendant’s Exhibits K-P).”); see also Def.’s Br. at 57. The Court need not and does not consider the remaining exhibits submitted with the
Murray Declaration.
3

an email dated July 13, 2020, Plaintiff wrote: “I would like to do a mural or street message
similar to the BLM one in the City by Trump Tower. I want to do mine in Brooklyn and a
similar one but slightly different. Can I get a permit for it?” See Def.’s Ex. L.
By email dated July 22, 2020, Plaintiff received a response from the Customer Service
Unit of the New York City Department of Transportation (“NYCDOT”) stating in part:
Thank you for your July 2, 2020 correspondence that you addressed to Mayor de
Blasio supporting the Black Lives Matter street murals throughout the city and your
suggestion for additional mural locations. Your correspondence was forwarded to
the Department of Transportation (DOT) to respond. . . . You are welcome to cheer
on and participate in all Black Lives Matter mural events; however, the current
mural locations that have been identified and supported by Mayor de Blasio and
local elected officials are the only ones authorized at this time. Nevertheless, we
appreciate your support and have forwarded your feedback to the DOT operational
unit overseeing the mural installations.
See Def.’s Ex. N.
Plaintiff alleges that he “also contacted several politicians and agencies within the City of
New York and spoke with various staff members who promised that he would hear back on his
request,” but “[i]n the end, . . . [he] was simply referred from one politician and/or agency to
another, without progress on his request.” See Am. Compl. ¶ 23. Plaintiff alleges that he
emailed and called his New York City Council Member but was eventually told to contact
NYCDOT. See Am. Compl. ¶ 24.
B.

August 2020 Correspondence

On August 5, 2020, Plaintiff filed with NYCDOT “for permission to convey his
message.” See Am. Compl. ¶ 25. In an email dated August 5, 2020 to an individual at
NYCDOT, Plaintiff wrote:
I called the Manhattan Borough President’s office and was given your e-mail. I
would like to get a permit to do a mural similar to the BLM one in City Hall. Same
size letters and I can pay for the paint and supplies myself. I have the following
locations in mind so please let me know which one of these is acceptable to you?
4

See Def.’s Ex. M. Plaintiff then listed 26 locations, including “1. Vesey St. between Church St.
and W Broadway,” “2. Ann St. between Nassau street and W Broadway,” and “3. Fulton Street
between W Broadway and Nassau Street,” among others. See Def.’s Ex. M. Each of the
locations was stated with reference to streets. See Def.’s Ex. M.
On August 18, 2020, Plaintiff received a response to his August 5, 2020 application, with
the subject line “DOT-467383-H2Y2 – Street Marking/Request – Leonard St between Church St
and Broadway – Permit for Mural – Manhattan,” stating in part that, “[e]xcept for a one time
City initiative to install ‘Black Lives Matter’ murals on City roadways at certain locations,
[NYCDOT] does not permit installations on City roadways that are open to traffic.” See Am.
Compl. ¶ 26; Def.’s Ex. O. Plaintiff alleges that this response “demonstrates that Defendant was
seeking to categorize Plaintiff’s request as just another mural following or copying what the City
had done” and “indicate[s] that Defendant City of New York was seeking to label Plaintiff’s
application as government speech, even though Plaintiff sought to present private speech which
contradicted the City’s message that only Black Lives Matter.” See Am. Compl. ¶ 27. Plaintiff
further alleges that “Defendant, . . . in using the words ‘on City roadways that are open to
traffic,’ limited private messaging on active City streets, but failed to address where private
citizens could present their messages within New York City.” See Am. Compl. ¶ 28. 5
C.

September 8, 2020 Application

On September 8, 2020, Plaintiff applied again to NYCDOT. See Am. Compl. ¶ 29;
Def.’s Ex. P. In Plaintiff’s September 8, 2020 application, in the section titled “Artwork Type,”

5

The August 18, 2020 response did state: “For more information regarding the process and
eligibility requirements for submitting a request to undertake artwork installations in certain
public places, please visit NYCDOT’s website,” and the response provided a link to the
website. See Def.’s Ex. O.
5

Plaintiff selected the box for “Mural,” and in the section titled “Materials,” Plaintiff listed “Paint
and brushes.” See Def.’s Ex. P at 15. In the section titled “Organizational Background,”
Plaintiff wrote: “We’re private citizens who want all races and ethnicities in our city to be
represented by ‘lives matter’ words painted on the street.” See Def.’s Ex. P at 16. In the section
titled “Site Selection,” Plaintiff wrote: “We are open to any site in the borough of Manhattan that
is available, but preferably close to the ‘Black Lives Matter’ words on the street mural in City
Hall.” See Def.’s Ex. P at 16. In the section titled “Context,” Plaintiff wrote: “‘Black Lives
Matter’ was simple words painted on a street by the mayor and regular people. This can be done
by regular citizens as well and does not require an artistic background.” See Def.’s Ex. P at 16.
In the section titled “Project Description/Artist Statement,” Plaintiff wrote: “The concept is that
there are many races and ethnicities living in NYC and it is discriminatory to say that only one’s
lives matter and ignore all others. ‘Black Lives Matter’ is a political organization that openly
supports radically changing this country’s economy and politics and is offensive to many people.
If their message is allowed, than opposing messages must be allowed too.” See Def.’s Ex. P at
16. In the section titled “Artist Bio,” Plaintiff wrote: “This is our first project and requires
simply painting letters on the street and no artistic knowledge.” See Def.’s Ex. P at 16. In the
section titled “Project Schedule,” next to “Display Period,” Plaintiff wrote: “As long as the BLM
signs are allowed” and next to “Removal,” Plaintiff wrote: “After the same time as the BLM
signs are allowed.” See Def.’s Ex. P at 17. In the section titled “Fabrication/Installation,”
Plaintiff wrote: “We have paint and brushes and will complete all the work out of our own
budget. We will simply paint large ‘All Lives Matter’ letters on a street of your choosing in the
same height and width as for the BLM letters and with the same color paint.” See Def.’s Ex. P at
17. In the section titled “Maintenance,” Plaintiff wrote: “The same exact maintenance provided

6

to the BLM signs.” See Def.’s Ex. P at 17. At the end of the application, Plaintiff included the
same list of 26 locations that he had included in his August 5, 2020 email and added: “[o]r any
street in the City north to 100’th Street of your choosing.” See Def.’s Ex. P at 18.
Plaintiff alleges that the form he used on September 8, 2020 stated that a response would
be given to the application within two weeks, which would have been September 22, 2020. See
Am. Compl. ¶ 32. Plaintiff further alleges that, even though he did not receive any response
from Defendant, his application was effectively denied when he was not approved at the end of
that two-week period. See Am. Compl. ¶ 32. Plaintiff alleges that, “to the extent that Defendant
City of New York viewed or views the streets of New York City to be spaces wherein it can
control the message presented,” Defendant “did not provide any alternate venue where Plaintiff
could present his independent message, which was contradictory of the government’s message.”
See Am. Compl. ¶ 31. Plaintiff further alleges that, accordingly, “Defendant provided Plaintiff
with absolutely no means to present his private speech without risk of being shut down and
penalized for expressing that private speech.” See Am. Compl. ¶ 31.
II.

Procedural Background
On December 14, 2021, Plaintiff filed the Complaint. See ECF No. 1. On February 6,

2023, Plaintiff filed the Amended Complaint. See ECF No. 16. On March 24, 2023, the Court
held a pre-motion conference and set a briefing schedule for Defendant’s anticipated motion to
dismiss. See ECF No. 19. On June 9, 2023, Defendant filed the Motion to Dismiss, which
Plaintiff opposes. See ECF Nos. 24-28.
DISCUSSION
I.

Standard of Review
To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure, a complaint must plead “enough facts to state a claim to relief that is
7

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ. of City
Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). The Court must “accept all ‘well-pleaded factual allegations’ in the complaint as true”
and “‘construe all reasonable inferences that can be drawn from the complaint in the light most
favorable to the plaintiff.’” Lynch v. City of N.Y., 952 F.3d 67, 74-75 (2d Cir. 2020) (first
quoting Iqbal, 556 U.S. at 679; then quoting Arar v. Ashcroft, 585 F.3d 559, 567 (2d Cir. 2009)).
However, “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of
action will not do,” and dismissal is proper where “the allegations in a complaint, however true,
could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 555, 558. A court is not
“bound to accept conclusory allegations or legal conclusions masquerading as factual
conclusions.” See Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (quotation
omitted); see also Iqbal, 556 U.S. at 678 (noting that a court is “not bound to accept as true a
legal conclusion couched as a factual allegation” (quoting Twombly, 550 U.S. at 555)); Ruston v.
Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (noting that “factual
allegations must be sufficient to support necessary legal conclusions”). “In considering a motion
to dismiss for failure to state a claim, ‘[a] district court is normally required to look only to the
allegations on the face of the complaint,’” though “[it] may consider documents that ‘are
attached to the complaint,’ ‘incorporated in it by reference,’ ‘integral’ to the complaint, or the
proper subject of judicial notice.” United States v. Strock, 982 F.3d 51, 63 (2d Cir. 2020)
(quoting Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)).

8

II.

Plaintiff’s First Amendment Claim is Dismissed
In his First Cause of Action, Plaintiff alleges that Defendant, acting under the color of

law, has deprived and continues to deprive Plaintiff of his rights guaranteed by the First
Amendment, in violation of 42 U.S.C. § 1983 (“Section 1983”). See Am. Compl. ¶ 37. 6
Specifically, Plaintiff alleges that Defendant has violated Plaintiff’s First Amendment rights by
denying Plaintiff the opportunity and/or permission to use space within the City of New York, at
an appropriate time and place, to present his requested message, because of the content of that
requested message; by failing to provide a reasonable basis, or any basis, for denying Plaintiff
the opportunity to express his requested message within the City of New York; by favoring the
viewpoint of Black Lives Matter over other viewpoints which Plaintiff has sought to present; and
by effectively censoring the private speech which Plaintiff seeks to present by forbidding
Plaintiff’s message from being presented, in any manner or location, in New York City. See Am.
Compl. ¶ 38.
For the reasons that follow, Plaintiff’s First Amendment claim is dismissed for failure to
state a claim.
A.

Applicable Law

“The First Amendment, applicable to the States through the Fourteenth Amendment,
prohibits the enactment of laws ‘abridging the freedom of speech.’” Reed v. Town of Gilbert,

6

Section 1983 “provides ‘a method for vindicating federal rights elsewhere conferred,’
including under the Constitution.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To sustain a claim brought under Section
1983, “[t]he conduct at issue ‘must have been committed by a person acting under color of
state law’ and ‘must have deprived a person of rights, privileges, or immunities secured by the
Constitution or laws of the United States.’” Id. (quoting Pitchell v. Callan, 13 F.3d 545, 547
(2d Cir. 1994)).
9

Ariz., 576 U.S. 155, 163 (2015) (quoting U.S. Const. amend. I). 7 In general, “a government,
including a municipal government vested with state authority, ‘has no power to restrict
expression because of its message, its ideas, its subject matter, or its content.’” Id. (quoting
Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). “However, if a government
‘engag[es] in [its] own expressive conduct, then the Free Speech Clause has no application’
because, while the First Amendment ‘restricts government regulation of private speech,’ it does
not restrict the government’s speech.” Women for Am. First v. Adams (“WFAF”), No. 21-485CV, 2022 WL 1714896, at *2 (2d Cir. May 27, 2022) (emphasis and alterations in original)
(quoting Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009)); see also Walker v. Tex.
Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207 (2015). “Thus, when the
government speaks for itself, ‘it is not barred by the Free Speech Clause from determining the
content of what it says,’ and ‘is entitled to favor certain views over others.’” WFAF, 2022 WL
1714896, at *2 (first quoting Walker, 576 U.S. at 207; then quoting Wandering Dago, Inc. v.
Destito, 879 F.3d 20, 34 (2d Cir. 2018)).
“To determine whether contested speech is government or private, the Supreme Court has
identified three primary factors: (1) whether the medium has historically been used to
‘communicate messages from the States’; (2) whether the medium is ‘often closely identified in
the public mind with the State,’ i.e., whether it is reasonably interpreted as ‘conveying some
message on the government’s behalf’; and (3) whether the government maintains direct, editorial
control over the message’s content.” Id. (alterations accepted) (quoting Walker, 576 U.S. at 210-

7

The First Amendment provides, in relevant part: “Congress shall make no law . . . abridging
the freedom of speech.” U.S. Const. amend. I.
10

13, 219). 8
In Summum, for example, the Supreme Court concluded that monuments placed in a
city’s public park represented government speech, noting that “[g]overnments have long used
monuments to speak to the public,” “persons who observe donated monuments routinely – and
reasonably – interpret them as conveying some message on the property owner’s behalf,” and the
city government “effectively controlled the messages sent by the monuments in the Park by
exercising final approval authority over their selection.” See 555 U.S. at 470-73 (quotations
omitted). Similarly, in Walker, the Supreme Court concluded that Texas’s specialty license
plates convey government speech, noting that “the history of license plates shows that . . . they
long have communicated messages from the States,” “Texas license plate designs are often
closely identified in the public mind with the [State],” and “Texas maintains direct control over
the messages conveyed on its specialty plates” by exercising “final approval authority.” See 576
U.S. at 209-13 (alteration in original) (quotations omitted).
B.

Plaintiff Fails to State a First Amendment Claim

Defendant argues that Plaintiff’s submissions to the City unequivocally identify the street
as the proposed location for his mural; that the decisions to allow the Black Lives Matter murals
to be painted on New York City streets and not to allow Plaintiff to paint his message on a New
York City street constitute government speech, which is not subject to First Amendment
scrutiny, and do not give rise to a First Amendment claim; and that Plaintiff’s claim that the City
violated his First Amendment rights fails as a matter of law. See Def.’s Br. at 2-8. In support of
its motion, Defendant relies on WFAF, a materially factually similar case – discussed in greater
detail below – in which the United States Court of Appeals for the Second Circuit concluded that

8

The Court refers herein to these three factors as the “Walker factors.”
11

the City’s acceptance, creation, and preservation of the Black Lives Matter murals as well as the
denial of the WFAF plaintiff’s application to paint its own mural were an exercise of government
speech. See Def.’s Br. at 3-5, 7-8. Defendant argues that Plaintiff’s allegations do not present
circumstances on which to distinguish WFAF or otherwise avoid dismissal of Plaintiff’s First
Amendment claim under the government speech doctrine. See Def.’s Br. at 5.
In opposing Defendant’s motion, Plaintiff argues that the message Plaintiff sought to
present is not government speech and argues, more specifically, that “the second prong of the
Walker test fails” and that this case is distinguishable from WFAF and from Summum. See Pl.’s
Br. at 8-12. Plaintiff argues that the instant case is distinguishable from WFAF because
Plaintiff’s proposed message that “All Lives Matter” clearly opposed and contradicted
Defendant’s message that “Black Lives Matter” and no reasonable person would assume that
Defendant endorsed Plaintiff’s message, whereas the plaintiff in WFAF “apparently sought to
add to the message being conveyed by the City of New York.” See Pl.’s Br. at 11-12. Plaintiff
argues that the instant case is distinguishable from Summum because, given the “extremely
contradictory message” that Plaintiff seeks to convey, there is no reason to believe that
Defendant would have selected Plaintiff’s message to display and/or taken ownership of that
message, as the city did in Summum with respect to the monuments at issue there. See Pl.’s Br.
at 10.
In reply, Defendant contends that Plaintiff’s argument – that Plaintiff’s proposed message
is private speech based on the content of the message – ignores the very premise of the
government speech doctrine as well as what constitutes government speech under wellestablished Supreme Court precedent. See Def.’s Reply at 1. Defendant emphasizes that
Supreme Court and Second Circuit caselaw makes clear that circumstances other than the

12

content of the proposed speech determine whether the speech is government speech. See Def.’s
Reply at 4-7.
As an initial matter, Plaintiff’s requests, considered individually or collectively, reflect
that Plaintiff was seeking to paint a mural on the street. Notwithstanding Plaintiff’s assertion
that his requests became “increasingly broad,” see Pl.’s Br. at 8, the nature and scope of
Plaintiff’s requests are clear from the relevant documents themselves. In his July 2, 2020 email,
Plaintiff stated that he wanted “to paint a message like Black Lives Matter on the street too,” see
Def.’s Ex. K; in his July 13, 2020 email, Plaintiff stated that he wanted “to do a mural or street
message similar to the BLM one,” see Def.’s Ex. L; in his August 5, 2020 email, Plaintiff stated
that he sought “a permit to do a mural similar to the BLM one” and Plaintiff listed 26 locations,
with reference to street names, see Def.’s Ex. M; and in his September 8, 2020 application,
Plaintiff indicated that he wanted “all races and ethnicities in our city to be represented by ‘lives
matter’ words painted on the street,” noted that “‘Black Lives Matter’ was simple words painted
on a street” and that Plaintiff’s proposed project “requires simply painting letters on the street,”
described the installation process as “[w]e will simply paint large ‘All Lives Matter’ letters on a
street of your choosing in the same height and width as for the BLM letters and with the same
color paint,” and again proposed a list of 26 locations, referencing particular street names and
adding: “[o]r any street in the City north to 110’th Street of your choosing,” see Def.’s Ex. P. 9

9

The Amended Complaint alleges that, in his September 8, 2020 application, Plaintiff “stated
that he would be happy to present his message in any location within Manhattan and did not
confine the proposed location to the actual street.” See Am. Compl. ¶ 30. Although in the
section of his September 8, 2020 application titled “Site Selection” Plaintiff wrote: “[w]e are
open to any site in the borough of Manhattan that is available,” see Def.’s Ex. P at 16,
Plaintiff’s September 8, 2020 application makes clear that the project itself was to be, like the
Black Lives Matter street murals, “words painted on the street.” See Def.’s Ex. P at 16; see
also Def.’s Ex. P at 17 (referencing “letters on a street of your choosing in the same height
and width as for the BLM letters and with the same color paint” and noting that Plaintiff’s
13

Here, as in WFAF, the Black Lives Matter murals and Defendant’s denial of Plaintiff’s
requests to paint his own street mural constituted the exercise of government speech. See WFAF,
2022 WL 1714896, at *2, 4.
At issue in WFAF was the request of Women for America First (“WFAF”) to then-Mayor
de Blasio to paint a mural of WFAF’s motto – “Engaging, Inspiring and Empowering Women to
Make a Difference!” – “on Fifth Avenue, or another similar street within the city’s jurisdiction,”
which request ultimately was denied by NYCDOT. See id. at *1 & n.3. WFAF brought suit
against former Mayor de Blasio and the former New York City Transportation Commissioner, in
their official capacities, alleging, inter alia, that their denial of WFAF’s request to paint a mural
similar to New York City’s Black Lives Matter murals deprived WFAF of its First Amendment
rights in violation of Section 1983. See id. at *1.
The Second Circuit applied the Walker factors to WFAF’s allegations. First, the Second
Circuit noted that “New York City has historically used this medium – i.e., markings upon
roadways – as a means to communicate with the public.” See id. at *2. Second, the Second
Circuit noted that, “because of this historical communicative use, City streets are ‘closely
identified in the public mind with the government unit that owns [them].’” See id. at *3
(alteration in original) (quoting Summum, 555 U.S. at 472). Third, the Second Circuit noted that
the City “clearly exercised control” over the content of the Black Lives Matter murals because
the City “‘took ownership’ of the Murals and displayed them on streets ‘that it owns and
manages and that [are] linked to the City’s identity.’” See id. (alteration in original) (quoting
Summum, 555 U.S. at 473-74). Accordingly, the Second Circuit “conclude[d] that the City

project would entail “[t]he exact same maintenance provided to the BLM signs”). The Court
need not assess Plaintiff’s credibility here, see Pl.’s Br. at 8, and the Court does not do so.
14

Defendants’ acceptance, creation, and preservation of the [Black Lives Matter] Murals – as well
as their denial of WFAF’s application to paint its own – were a prototypical exercise of
government speech” and that “the district court correctly held that WFAF’s amended complaint
failed to plausibly allege a First Amendment claim.” Id. at *2, 4.
In attempting to distinguish his case from Summum and from WFAF and in arguing that
the second Walker factor is not met here, Plaintiff emphasizes the content of his message. Such
emphasis is, however, misplaced. It is the medium that Plaintiff sought to use to present his
message that is relevant to the government speech determination here. See WFAF, 2022 WL
1714896, at *2 (describing the second Walker factor as “whether the medium is often closely
identified in the public mind with the State”) (emphasis added) (quotation omitted)); Walker, 576
U.S. at 210-13 (addressing medium of state specialty license plates); Summum, 555 U.S. at 47073 (addressing medium of monuments in a city’s public park).
Notwithstanding Plaintiff’s arguments to the contrary, the instant case is not materially
distinguishable from WFAF. Upon application of the Walker factors, the Court concludes that
Defendant’s denial of Plaintiff’s request to paint his own street mural, like the denial of WFAF’s
request to paint its own street mural, was an exercise of government speech and Plaintiff’s
Amended Complaint therefore fails to state a First Amendment claim. See WFAF, 2022 WL
1714896, at *2, 4.
Plaintiff’s First Amendment claim is dismissed. 10
III.

The Court Declines to Exercise Supplemental Jurisdiction Over Plaintiff’s State
Law Claim
In his Second Cause of Action, Plaintiff alleges that Defendant has violated Article I,

10

Plaintiff has not alleged any other deprivation of rights under the Constitution or laws of the
United States that might support a claim under Section 1983.
15

Section 8 of the New York State Constitution by denying Plaintiff the ability to present his
sentiments on Black Lives Matter, where Plaintiff’s viewpoint conflicts with Defendant’s
sentiments thereon. See Am. Compl. ¶ 41.
Title 28, United States Code, Section 1367(a) provides, as relevant here, that “in any civil
action of which the district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under Article III of
the United States Constitution.” District courts may, however, decline to exercise supplemental
jurisdiction over such other claims if “the district court has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c)(3). “Courts ‘consider and weigh in each case, and at
every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in
order to decide whether to exercise’ supplemental jurisdiction.” Lundy v. Cath. Health Sys. of
Long Island Inc., 711 F.3d 106, 117-18 (2d Cir. 2013) (quoting Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 (1988)). The Supreme Court has recognized that, “in the usual case in which
all federal-law claims are eliminated before trial, the balance of factors to be considered . . . will
point toward declining to exercise jurisdiction over the remaining state-law claims.” Cohill, 484
U.S. at 350 n.7.
Here, in light of the dismissal of Plaintiff’s First Amendment claim, principles of judicial
economy and comity counsel heavily in favor of declining to retain jurisdiction over Plaintiff’s
state law claim. Indeed, the parties agree that, in the event that the Court dismisses Plaintiff’s
First Amendment claim, the Court should decline to exercise supplemental jurisdiction over
Plaintiff’s state law claim. See Def.’s Br. at 8-9; Pl.’s Br. at 13-14; Def.’s Reply at 2. The Court
declines to exercise supplemental jurisdiction over Plaintiff’s state law claim.

16

Plaintiff’s state law claim is dismissed without prejudice.
CONCLUSION
For the reasons set forth above, Defendant’s Motion to Dismiss, ECF No. 24, is
GRANTED and the Amended Complaint, ECF No. 16, is dismissed. 11 Dismissal of Plaintiff’s
state law claim is without prejudice.
The Clerk of Court is directed to enter judgment accordingly and to close the case.
SO ORDERED.
/s/ Diane Gujarati
DIANE GUJARATI
United States District Judge
Dated: February 5, 2024
Brooklyn, New York

11

In light of the applicable legal standards governing the instant motion, Plaintiff’s suggestion
that the Court “could easily deny this motion to dismiss, allow for discovery, and address the
legal issues again if a summary judgment motion is made,” see Pl.’s Br. at 13, is unavailing.
17