Center for Bio-Ethical Reform, Inc. v. Black

234 F. Supp. 3d 423, 2017 WL 550645, 2017 U.S. Dist. LEXIS 19321
CourtDistrict Court, W.D. New York
DecidedFebruary 10, 2017
Docket13-CV-581-A
StatusPublished
Cited by3 cases

This text of 234 F. Supp. 3d 423 (Center for Bio-Ethical Reform, Inc. v. Black) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Center for Bio-Ethical Reform, Inc. v. Black, 234 F. Supp. 3d 423, 2017 WL 550645, 2017 U.S. Dist. LEXIS 19321 (W.D.N.Y. 2017).

Opinion

DECISION AND ORDER

HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT COURT JUDGE

The plaintiffs in this civil rights action under 42 U.S.C. § 1983 áre protestors and activists who allege that their fundamental rights to freedom of speech and to equal protection of the laws were violated during demonstrations on the campus of the State University of New York at Buffalo. Plaintiffs were protesting abortion by exhibiting photo-murals containing large, horrific images equating abortion to historically-recognized genocides. Plaintiffs allege that the defendants, who are all University officials, allowed counter-demonstrators to use signs, umbrellas, and bed sheets to block the photo-murals from view. Plaintiffs allege the defendants intentionally allowed counter-demonstrators to impair plaintiffs’ exercise of their free, speech rights because the defendants were hostile toward both the gruesome content and the antiabortion viewpoint of the photo-mural exhibit, and because the defendants wanted to retaliate against the plaintiffs because of the plaintiffs’ insistence that their freedom of speech not be impaired.

The action is before the Court upon objections of the University defendants to an October 1,2013 Report and Recommendation of Magistrate Judge.Hugh B. Scott that recommends denial of a motion by defendants pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss plaintiffs’ Complaint for failure to state a claim upon which relief can be granted. The standard of review of a magistrate judge’s report and recommendation is de novo for findings and rec-onvmendations to which a party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). The Court reviews unob-jected-to findings and recommendations for clear error or manifest injustice. See e.g., Buckley v. Niagara Frontier Transportation Authority, et al., 2016 WL 7403812 at *1 (W.D.N.Y. Dec. 21, 2016).

Upon review of the Report and Recommendation, the Court finds as a threshold matter that only one of the individual plaintiffs has standing to sue. Accordingly, pursuant to Fed. R, Civ. P. 12(h)(3), the Court dismisses from the action the individual plaintiffs Gregg Cunningham, Darius Hardwick, and Christian Andzel, without prejudice. The Court finds that the remaining plaintiffs, Center for Bio-Ethical Reform, Inc. (“CBR”), UB Students for Life, and Matthew Ramsey (“Ramsey”) allege causes of action under 42 U.S.C. § 1983 for violations of their rights to freedom of speech, and to equal protection of the laws. Accordingly, for the reasons that follow, the Court follows the recommendation of the Magistrate Judge in the Report and Recommendation as it pertains to these plaintiffs, and the University defendants’ motion to dismiss' the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted is denied.

BACKGROUND

On a motion'to dismiss a complaint pursuant to Fed. R. Civ. P. 12(b)(6) “[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013) (internal quotations and citation omitted). The Court assumes well-pleaded facts are true and draws reasonable inferences that support, plausible causes of action. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. [429]*429Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plaintiffs’ Complaint alleges as follows:

In December of 2012, Christian Andzel (“Andzel”), as President of UB Students for Life, reserved a place on the campus of the State University of New York at Buffalo to display plaintiff CBR’s “Genocide Awareness Project,” which uses photo-murals with large, horrific images to compare abortion to historically-recognized genocides. Andzel reserved the location, an open space outside a main entrance of a Student Union building where speech activities were routinely allowed to occur, for April 15 and 16, 2013. He complied with University procedures to do so.

In March of 2013, Andzel received an email from the University requesting a meeting about “concerns that need to be addressed.” Dkt. No. 1, ¶29, Defendant Thomas Tiberi (“Tiberi”), Director of Student Life, and another University employee met with Andzel, and informed him that they did not want UB Students for Life to force people to see plaintiff CBR’s disturbing Genocide Awareness photo-murals. They told Andzel that they wanted to move the display to a remote location on the campus.

A few days later, after plaintiff CBR threatened litigation over any forced change of the location for the Genocide Awareness photo-murals, the University granted final permission for use of the space by the main entrance to the Student Union. Nevertheless, on April 15, 2013, during the first morning of the scheduled two-day photo-mural exhibition, defendant Tiberi requested that CBR reduce the size of the display. An employee of CBR, plaintiff Darius Hardwick, responded by showing defendant Tiberi photos of numerous other student events held near the Student Union that had been permitted, and persuaded the University not to reduce the size of the exhibition.

Later on the first day of the Genocide Awareness photo-mural protest, a number of counter-demonstrators assembled, and some sought to block the gruesome antiabortion imagery from view. Some counter-demonstrators objected to the horrific content, some objected to the anti-abortion viewpoint the photo-murals expressed. The photo-murals had been cordoned off with waist-high tubular-metal crowd-control barricades, but counter-demonstrators stood close to the portable barricades and tried to block others’ views. Plaintiff CBR’s employee told two campus police officers that the conduct of the counter-demonstrators was unlawful, and told the police the counter-demonstrators’ disruptions would not be tolerated.

The next morning, when plaintiffs’ Genocide Awareness protest resumed, four counter-demonstrators gathered near the front of the photo-murals. Plaintiff CBR again complained to campus police, the police spoke to the counter-demonstrators, and two of the four left.

However, throughout the second day of the exhibition, more counter-demonstrators gradually arrived and proceeded to block CBR’s photo-murals from view with signs, umbrellas and bed sheets. As the counter-demonstration escalated, CBR asked campus police to separate the protestors from the photo-murals to stop the obstruction of the images, but police refused to do so. A police officer told plaintiff Ramsay at some point that the officer was “under orders not to stop the protestors’ disruptive conduct.” Defendant Gerald W. Sehoenle, Jr.

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Bluebook (online)
234 F. Supp. 3d 423, 2017 WL 550645, 2017 U.S. Dist. LEXIS 19321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/center-for-bio-ethical-reform-inc-v-black-nywd-2017.