         09-4413-cv
         Bank v. Katz

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of New
 4       York, on the 16th day of June,two thousand eleven.

 5       PRESENT:
 6                      ROGER J. MINER,
 7                      ROBERT D. SACK,
 8                      PETER W. HALL,

 9                                  Circuit Judges.

10       --------------------------------------
11        TODD C. BANK,

12                              Plaintiff–Appellant,

13                      - v -                                         No. 09-4413-cv

14        ANNE KATZ, in her official capacity
15        as Judge of the Housing Part of the
16        Civil Court of the City of New York,
17        and JUDE ALBANO, in his official
18        capacity as Senior Court Clerk of
19        the Civil Court of the City of New
20        York,

21                              Defendants–Appellees.

22       --------------------------------------

23       Appearing for Appellant:             Todd C. Bank, pro se, Kew Gardens,
24                                            New York.

25       Appearing for Appellees:             David Lawrence III, Assistant
26                                            Solicitor General (Barbara D.
27                                            Underwood, Solicitor General, and
28                                            Michael S. Belohlavek, Senior
29                                            Counsel, on the brief), New York,
 1                                 New York, for Andrew M. Cuomo,
 2                                 Attorney General of the State of
 3                                 New York.

 4        Appeal from a September 25, 2009, judgment of the United
 5   States District Court for the Eastern District of New York
 6   (Garaufis, J.).

 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
 8   DECREED that the judgment of the district court be, and it hereby
 9   is, AFFIRMED.

10        Plaintiff–appellant Todd C. Bank, an attorney proceeding pro
11   se, appeals from the district court's judgment dismissing his
12   complaint brought under 42 U.S.C. § 1983 against
13   defendants–appellees New York Civil Court Judge Anne Katz and
14   Senior Court Clerk Jude Albano. Because he is an attorney, Bank
15   is not entitled to "claim the special consideration which the
16   courts customarily grant to pro se parties." Holtz v.
17   Rockefeller & Co., Inc., 258 F.3d 62, 82 n.4 (2d Cir. 2001)
18   (internal quotation marks omitted).

19        Bank alleges that the defendants violated his constitutional
20   rights under the First and Fourteenth Amendments by orally
21   directing him not to wear a baseball hat when appearing in court
22   and by admonishing him for wearing inappropriately casual attire.
23   We assume the parties' familiarity with the underlying facts,
24   procedural history of the case, and issues on appeal.

25        "We review de novo a district court's dismissal of a
26   complaint for failure to state a claim upon which relief can be
27   granted, accepting all factual allegations in the complaint as
28   true, and drawing all reasonable inferences in the plaintiff's
29   favor." Peter F. Gaito Architecture, LLC v. Simone Dev. Corp.,
30   602 F.3d 57, 61 (2d Cir. 2010) (citation and internal quotation
31   marks omitted). For a plaintiff's claim to survive a motion to
32   dismiss, "a complaint must contain sufficient factual matter,
33   accepted as true, to 'state a claim to relief that is plausible
34   on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
35   (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)).

36        Bank contends, first, that the defendants violated his First
37   Amendment rights by instructing him not to wear a baseball hat
38   and casual attire when appearing in court. Assuming arguendo
39   that Bank's choice of attire constituted a form of protected
40   expression, but see Zalewska v. County of Sullivan, 316 F.3d 314,
41   319-21 (2d Cir. 2003); E. Hartford Educ. Ass'n v. Bd. of Educ. of
42   the Town of E. Hartford, 562 F.2d 838, 856-58 (2d Cir. 1977) (en
43   banc), a restriction on speech in such a forum will be upheld "so
44   long as the restriction is reasonable and viewpoint-neutral,"


                                     2
 1   Byrne v. Rutledge, 623 F.3d 46, 53 (2d Cir. 2010). Bank concedes
 2   that the defendants' conduct was viewpoint neutral.

 3        A restriction is "reasonable" if "it is wholly consistent
 4   with the government's legitimate interest in preserving the
 5   property for the use to which it is lawfully dedicated." Make
 6   the Road by Walking, Inc. v. Turner, 378 F.3d 133, 147 (2d Cir.
 7   2004) (brackets, ellipsis, and internal quotation marks omitted);
 8   see also Byrne, 623 F.3d at 59-60. "A courthouse serves to
 9   provide a locus in which civil and criminal disputes can be
10   adjudicated. Within this staid environment, the presiding judge
11   is charged with the responsibility of maintaining proper order
12   and decorum." Huminski v. Corsones, 396 F.3d 53, 91 (2d Cir.
13   2005)(internal quotation marks omitted); cf. Gentile v. State Bar
14   of Nevada, 501 U.S. 1030, 1071 (1991); Berner v. Delahanty, 129
15   F.3d 20, 27-29 (1st Cir. 1997), cert. denied, 523 U.S. 1023
16   (1998). The restriction as alleged is therefore reasonable.

17        Bank has thus failed to allege facts sufficient to support a
18   claim of a violation of his First Amendment rights. The district
19   court did not err in dismissing this claim.

20        We also conclude that the district court did not err in
21   dismissing Bank's claim under the Fourteenth Amendment, which is
22   premised on Bank's asserted liberty interest in his personal
23   appearance. The Supreme Court has not yet confirmed the
24   existence of such a constitutionally protected liberty interest.
25   See Kelley v. Johnson, 425 U.S. 238, 244 (1976) (assuming,
26   without deciding, the existence of such an interest). For the
27   purposes of resolving this appeal, we assume that such an
28   interest exists, as we have also done on previous occasions.
29   See, e.g., Zalewska, 316 F.3d at 321; see also Kelley, 425 U.S.
30   at 244.

31        Bank contends that the defendants' direction that he remove
32   his hat should be subjected to strict scrutiny. However, he
33   identifies no legal basis for concluding that a lawyer's interest
34   in dressing as he pleases when appearing in court rises to the
35   level of a fundamental constitutional right, see Washington v.
36   Glucksberg, 521 U.S. 702, 720-21 (1997), nor are we able to
37   discern one. Accordingly, we apply rational-basis review to
38   Bank's Fourteenth Amendment claim. See Zalewska, 316 F.3d at
39   321. We conclude that the defendants' instructions that Bank
40   remove his baseball hat when appearing in court were rationally
41   related to the legitimate governmental purpose of maintaining
42   order and decorum in the courtroom. The district court therefore
43   correctly dismissed Bank's claim for violation of his Fourteenth
44   Amendment rights.

45        Finally, in their opposing brief on appeal, the defendants
46   argue that the district court should have refrained from deciding
47   this case under the doctrine of abstention established by Younger
                                     3
 1   v. Harris, 401 U.S. 37 (1971). The district court did not
 2   address this question. In light of our decision to affirm the
 3   dismissal of Bank's claims on their merits, we need not address
 4   this difficult question to resolve this appeal. See, e.g.,
 5   Official Comm. of Unsecured Creditors of WorldCom, Inc. v. SEC,
 6   467 F.3d 73, 81 (2d Cir. 2006); Moore v. Consol. Edison Co. of
 7   N.Y., Inc., 409 F.3d 506, 511 n.5 (2d Cir. 2005).

 8        We have reviewed Bank's remaining contentions on appeal and
 9   find them to be without merit.

10        For the foregoing reasons, the judgment of the district
11   court is hereby AFFIRMED.

12                       FOR THE COURT:
13                       CATHERINE O'HAGAN WOLFE, CLERK

14




                                     4
