     12-4073(L)
     Stoner v. Young Concert Artists, Inc.
                                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 for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3   21st day of September, two thousand fifteen.
 4
 5   Present:
 6              PIERRE N. LEVAL,
 7              ROSEMARY S. POOLER,
 8              DENNY CHIN,
 9                          Circuit Judges,
10
11   ________________________________________________
12
13   MARTIN STONER,
14
15              Plaintiff-Appellant,
16
17                      v.                                           No. 12-4073 (L), 14-506 (Con),
18                                                                   14-1572 (Con)
19
20   YOUNG CONCERT ARTISTS, INCORPORATED,
21
22              Defendant-Appellee.
23
24   ________________________________________________
25
26   For Plaintiff-Appellant:          MARTIN STONER, pro se, New York, NY
27
28   For Defendant-Appellee:    MARJORIE N. KAYE, JR., Jackson Lewis P.C., New York, NY
29   ________________________________________________
 1          Appeal from the United States District Court for the Southern District of New York
 2   (Preska, C.J.).
 3
 4          ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

 5   DECREED that the judgments and order of the district court are AFFIRMED IN PART and

 6   VACATED IN PART, and the case is REMANDED for further proceedings.

 7          Plaintiff-Appellant Martin Stoner, proceeding pro se, appeals from judgments of the

 8   United States District Court for the Southern District of New York (Preska, C.J.), dismissing his

 9   complaints, which alleged that Young Concert Artists, Inc. (“YCA”) discriminated against him

10   on the basis of his age in violation of the Age Discrimination Act of 1975 (“ADA”), 42 U.S.C.

11   §§ 6101-6107.1 In Stoner v. Young Concert Artists, Inc., No. 11 Civ. 7279 (LAP), 2012 WL

12   4471602 (S.D.N.Y. Sept. 26, 2012) (“Stoner II”), the district court granted YCA’s motion to

13   dismiss for failure to state a claim and denied Stoner’s request for sanctions. In Stoner v. Young

14   Concert Artists, Inc., No 13 Civ. 4168 (LAP), 2014 WL 661424 (S.D.N.Y. Feb. 7, 2014)

15   (“Stoner III”), the district court again granted YCA’s motion to dismiss, denied Stoner’s request

16   for sanctions and recusal, and ordered Stoner to show cause why he should not be enjoined from

17   filing further complaints against YCA without court approval. In Stoner v. Young Concert

18   Artists, Inc., No. 14 Civ. 2222 (LAP) (S.D.N.Y. Apr. 4, 2014) (“Stoner IV”), the district court,

19   acting sua sponte, dismissed Stoner’s newest complaint as duplicative and frivolous and enjoined

20   Stoner from further filings against YCA without permission from the court. We assume the




            1
            The ADA, which is different than the Age Discrimination in Employment Act of 1967 or
     the Americans with Disabilities Act of 1990, “prohibit[s] discrimination on the basis of age in
     programs or activities receiving Federal financial assistance.” 42 U.S.C. § 6101; see also Garcia
     v. Akwesasne Hous. Auth., 268 F.3d 76, 85-86 (2d Cir. 2001).

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 1   parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

 2   appeal.

 3             We review de novo both sua sponte dismissals and dismissals pursuant to Federal Rule of

 4   Civil Procedure 12(b)(6). Coulter v. Morgan Stanley & Co. Inc., 753 F.3d 361, 366 (2d Cir.

 5   2014); Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013). Pro se complaints “must be

 6   construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes, 723

 7   F.3d at 403 (internal quotation marks omitted). To survive dismissal, the complaint must plead

 8   “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

 9   550 U.S. 544, 570 (2007). A claim will have “facial plausibility when the plaintiff pleads factual

10   content that allows the court to draw the reasonable inference that the defendant is liable for the

11   misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

12                The district court erred in dismissing one of Stoner’s claims. A plaintiff’s complaint

13   in a discrimination suit must “at a minimum assert nonconclusory factual matter sufficient to

14   nudge its claims across the line from conceivable to plausible.” EEOC v. Port Auth. of N.Y. &

15   N.J., 768 F.3d 247, 254 (2d Cir. 2014) (internal alterations and quotation marks omitted).

16             Stoner alleges that in 2010, at the age of 60, he applied to participate in YCA’s 2010

17   International Competition, which at the time was limited to participants under 26 years of age.

18   After Stoner filed an administrative complaint with the National Endowment for the Arts, YCA

19   permitted Stoner to audition for the competition. Stoner alleges that he “played brilliantly” at the

20   auditions, but that the members of the jury “were aware of his complaints of discrimination” and

21   “displayed a discriminatory animus in their written comments.” Specifically, he alleges that “two

22   members of the audition jury . . . wrote at the top of their audition review cards the number sixty


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1    . . . , referring to plaintiff’s current age.” Case No. 11-cv-7279 Doc. 31, at 1-6. These facts are

2    sufficient to plausibly support the inference that YCA discriminated against Stoner on the basis

3    of his age in violation of the ADA. See 42 U.S.C. § 6102 (establishing that “no person . . . shall,

 4   on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected

 5   to discrimination under, any program or activity receiving Federal financial assistance”).

 6          We note, however, that the ADA may permit YCA to exclude Stoner on account of his

 7   age. The ADA does not prohibit actions that “reasonably take[] into account age as a factor

 8   necessary to the normal operation or the achievement of any statutory objective of such program

 9   or activity.” 42 U.S.C. § 6103(b)(1)(A). The ADA also does not apply to programs “established

10   under authority of any law” which provides benefits on the basis of age or “establishes criteria

11   for participation in age-related terms or describes intended beneficiaries or target groups in such

12   terms.” Id. § 6103(b)(2).

13          An action “reasonably takes into account age as a factor necessary to the normal

14   operation or the achievement of any statutory objective of a program or activity” if:

15          (a) Age is used as a measure or approximation of one or more other

16          characteristics; and

17          (b) The other characteristic(s) must be measured or approximated in order for the

18          normal operation of the program or activity to continue, or to achieve any

19          statutory objective of the program or activity; and

20          (c) The other characteristic(s) can be reasonably measured or approximated by the

21          use of age; and




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 1           (d) The other characteristic(s) are impractical to measure directly on an individual

 2           basis.

 3   45 C.F.R. § 90.14. Guidance issued by the Department of Health, Education, and Welfare (now

 4   the Department of Health and Human Services) explicitly contemplated exceptions for youth

 5   organizations. It provided an example of a youth organization with an age limitation on

 6   membership that supported its objective—“the training, education and character development of

 7   youth.” 44 Fed. Reg. 33,768, 33,773 (June 12, 1979). The guidance concluded that this

 8   hypothetical program was exempt because age was a rough approximation of “the need for

 9   training, education, and character building experiences preparing for the assumption of adult

10   responsibility.” Id.

11           YCA argued in its motion to dismiss that its “age limitation is used as a measure or

12   approximation of a participant’s professional or novice status and/or whether they are truly

13   ‘emerging’ as an artist.” YCA Suppl. App. at 95-96 n.4. The district court did not address this

14   argument or hold a hearing on its factual basis. On remand it would be appropriate for the district

15   court to treat YCA’s motion to dismiss as a motion for summary judgment under Federal Rule of

16   Civil Procedure 12(d) and to rule on the questions raised.

17           The district court properly dismissed Stoner’s claims regarding the 2011, 2012, 2013, and

18   2014 competitions. Stoner failed to plead a claim under the ADA because the complaints

19   indicate that he either did not actually apply to participate in those competitions or refused to

20   comply with the prescribed procedures.

21           Stoner’s constitutional claims—whether brought under 42 U.S.C. § 1983, or Bivens v. Six

22   Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)—fail because YCA


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 1   was not a state or federal actor and the complaint asserts only conclusory allegations of

 2   conspiracy. See Sykes, 723 F.3d at 406 (“A private actor may be liable under § 1983 only if there

 3   is a sufficiently ‘close nexus between the State and the challenged action that seemingly private

 4   behavior may be fairly treated as that of the State itself.’” (quoting Brentwood Acad. v. Tenn.

 5   Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (internal quotation marks omitted)));

 6   Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006) (“A plaintiff bringing a claim under Bivens

 7   must allege that he has been deprived of a constitutional right by a federal agent acting under

 8   color of federal authority.”); Ciambriello v. Cty. of Nassau, 292 F.3d 307, 325 (2d Cir. 2002)

 9   (“[C]omplaints containing only conclusory, vague, or general allegations that the defendants

10   have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly

11   dismissed . . . .” (internal quotation marks omitted)). Stoner’s complaint fails to satisfy the

12   requirements of Iqbal because it does not plead “factual content that allows the court to draw the

13   reasonable inference that the defendant is liable for the misconduct alleged.” 556 U.S. at 678.

14   We affirm the dismissal of the remaining federal, state, and city law claims for the reasons set

15   forth by the district court in its orders.

16           Stoner also challenges the district court’s imposition of a sanction prohibiting him from

17   filing further actions against YCA without leave of the court. And each side demands the

18   imposition of sanctions on the other. First, we affirm the district court’s decision to sanction

19   Stoner. The court acted within the scope of its discretion in imposing this sanction on Stoner. See

20   Milltex Indus. Corp. v. Jacquard Lace Co., 55 F.3d 34, 37 (2d Cir. 1995). The court provided

21   Stoner with the required notice and opportunity to be heard, and properly weighed the five

22   factors discussed in Iwachiw v. New York State Department of Motor Vehicles, 396 F.3d 525,


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 1   528 (2d Cir. 2005). Since 2010, Stoner has filed four actions against YCA, all involving

 2   frivolous claims. See id. at 529 (“Frivolousness is determined not in the abstract but in relation to

 3   the arguments actually made by the appellant.” (internal alterations and quotation marks

 4   omitted)). His numerous duplicative complaints, motions, and filings have caused considerable

 5   unjustified expense and burden to YCA and the courts. The district court was within its

 6   discretion in concluding that the sanction was needed to deter Stoner. See id. at 528.

 7            Stoner’s application for sanctions against YCA is denied. He has shown no improper

 8   conduct on YCA’s part.

 9            We deny YCA’s request to further sanction Stoner. Although this court has previously

10   dismissed one of Stoner’s appeals as frivolous, we have not expressly warned Stoner about the

11   consequences of his abusive filings. Upon due consideration of the record before us, and in light

12   of Stoner’s history of litigation here and in the Southern District of New York, we hereby warn

13   Stoner that further abuse of the judicial process by frivolous or duplicative appeals, motions, or

14   other filings may result in sanctions, including orders barring him from filing papers without first

15   obtaining leave or more serious sanctions, possibly including monetary penalties. See Sassower

16   v. Sansverie, 885 F.2d 9, 11 (2d Cir. 1989).

17            We have considered the remainder of Stoner’s arguments and find them to be without

18   merit. Accordingly, the judgments of the district court are hereby AFFIRMED IN PART and

19   VACATED IN PART, and the case is REMANDED for proceedings not inconsistent with this

20   order.

21                                                     FOR THE COURT:
22                                                     CATHERINE O’HAGAN WOLFE, CLERK
23




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