The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge
MEMORANDUM, DECISION AND ORDER
Like many other states, New York operates a program that allows vehicle owners to display specialty license plates which bear a specific message or symbol. In this civil rights action, the plaintiff, the Children First Foundation, Inc. ("CFF"), challenges the denial of its application for a specialty plate by defendants, the former and current commissioners of the New York Department of Motor Vehicles ("DMV"). CFF sues Raymond Martinez ("Martinez"), the former commissioner, in his individual capacity and sues Barbara J. Fiala ("Fiala"), the current commissioner, solely in her official capacity (collectively, "Defendants"). CFF argues primarily that Defendants violated its rights under the Free Speech Clause of the First Amendment to the United States Constitution, but also asserts claims under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Presently before the court are motions for summary judgment by each party. Decision is rendered solely on the papers submitted, without oral argument. Because the court concludes that defendants violated CFF's First Amendment free speech rights as a matter of law, it need not address either of CFF's Fourteenth Amendment claims. Also, because Martinez prevails on his affirmative defense of qualified immunity, CFF's individual capacity claims against him are dismissed.
II. Procedural Background
Familiarity with much of the procedural background of this case is presumed, but will be summarized here for purposes of clarity.
This action was originally commenced in August 2004. The defendants subsequently filed a pre-answer motion to dismiss the entire complaint. After hearing oral argument regarding the motion, this court issued a bench order granting the motion in part, based on stipulation by plaintiffs, and denying the motion in part.
Thereafter, defendants filed both a motion for reconsideration with this court and an appeal of this court's decision on the motion to dismiss with the Court of Appeals for the Second Circuit. The sole issue on reconsideration and appeal was this court's denial of qualified immunity. This court denied defendants' motion for reconsideration, noting that they failed to overcome the "formidable hurdle" faced by movants seeking dismissal on qualified immunity grounds via a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 31. Shortly thereafter, defendants appealed the denial of their reconsideration to the Court of Appeals for the Second Circuit.
The Second Circuit dismissed both appeals by summary order, finding that because facts supporting the defense of qualified immunity do not appear on the face of the complaint, said defense cannot be determined as a matter of law, and therefore, the court lacks appellate jurisdiction. See Children First Found., Inc. v. Martinez, 169 Fed. App'x. 637, 639 (2d Cir. 2006). Defendants' appeals were dismissed accordingly.
A few months later, after stipulation by all parties, plaintiffs amended their complaint to comport with this court's ruling on the Rule 12(b)(6) motion. Shortly after CFF amended its complaint, defendants collectively filed an answer. At some point within the following six months, one of the defendants made a motion to amend her answer, which was granted in part and denied in part by Magistrate Judge Randolph F. Treece, see Children First Found., Inc. v. Martinez, 631 F. Supp. 2d 159 (N.D.N.Y. 2007), and later, upon objection of the parties, reversed by this court, see Children First Found., Inc. v. Martinez, No. 1:04-cv-0927, 2007 WL 4618524, at *1-3 (N.D.N.Y. Dec. 27, 2007). Interlocutory appeal was requested, and denied. See Children First Found., Inc. v. Martinez, No. 1:04-cv-0927, 2008 WL 2557433 (N.D.N.Y. June 20, 2008).
The parties eventually stipulated to the dismissal of all defendants except Martinez and Fiala. Subsequently, the presently pending motions for summary judgment were filed.
The relevant facts are not in dispute. Accordingly, there are no material questions of fact to prevent summary judgment here. CFF is a non-profit organization, incorporated in New York State, that exists to raise funds and awareness to promote and support adoption as a positive choice for women with unwanted pregnancies or newborns in New York, New Jersey, and Connecticut. CFF restricts its donations to non-profit organizations that receive no government funding, provide services to pregnant women, and do not perform or refer for abortion. In December 2001, CFF, through its director and president, Dr. Elizabeth Rex ("Rex"), applied for a custom plate through the DMV's specialty plate program, which was later denied. Martinez was the commissioner of DMV at that time.
New York State law enables the commissioner of the DMV ("the
Commissioner") to issue special number (or "custom") license plates
for an additional fee, and to promulgate regulations in relation
thereto. N.Y. VEH. & TRAF. LAW § 404(1) (McKinney 2009). The Commissioner shall not issue
any special number plate that, among other things, "is, [in his or her
discretion,] obscene, lewd, lascivious, derogatory to a particular
ethnic or other group, or patently offensive." N.Y. COMP. CODES R. &
REGS. tit. 15, § 16.4 (2001). One category of special number plates is
referred to by the DMV as a "Picture Plate" and is defined as "a
vehicle plate that has the words 'New York' contained in a blue
banner, and a picture or logo next to the plate number." There are
several categories and sub-categories of custom plates,*fn2
some of which are authorized by legislative action. See §§
404-b through 404-w. Otherwise, the procedure for the application for
and issuance of a custom plate is purely within the discretion of
the Commissioner and is not governed by statute or regulation. According
to the DMV's website at the time of CFF's application for a custom
plate, there are certain pre-requisites to applying for a custom
plate: (1) an organization must be not-for-profit and registered with
the New York State Department of State; (2) it must have a sponsoring
agency or organization as the main point of contact; and
(3) it must pay a $5000 deposit and sign a memorandum of
understanding with the DMV that the deposit is refunded when two
hundred sets of the plate are sold within a three-year
period.*fn3 An organization can request a "custom
plate development kit" from the DMV, which includes information and
the required forms.
Ostensibly, a request was made for such a "development kit" because on September 6, 2001, a DMV employee sent Rex a letter and packet of information that presented the requisite form and content of an application for a new custom plate, including administrative details with respect to marketing, submission of artwork, means of payment, and other matters. On December 28, 2001, Rex, on behalf of CFF, submitted an application for a custom plate to DMV. CFF's application included proposed artwork and design for the custom plate, which reflects the corporate logo of Choose Life, Inc.:*fn4 "a yellow sun behind the faces of two smiling children that are drawn as if in crayon by a child." Am. Compl. ¶ 33a. The plate design also included the tag line, "Choose Life," which also appears as if drawn in crayon by a child. Two months later, Martinez denied CFF's application, citing the denial of a request for a similar "Choose Life" plate by the DMV in 1998. The 1998 Choose Life plate was denied by DMV's then commissioner Richard E. Jackson, Jr., citing "the State of New York's policy not to promote or display politically sensitive messages" on its license plates due to the potential for "road rage." Ex. W to Decl. of Jeffrey A. Shafer, Jan. 25, 2010, Dkt. No. 203-2 ("Shafer Decl.").
Thereafter, CFF's legal counsel contacted Martinez by letter, wherein he argued that the DMV's stated reason for the denial of CFF's custom plate application constitutes impermissible viewpoint discrimination through Martinez's unbridled discretion. In reply by letter on June 10, 2002, Deputy Commissioner and Counselor Jill A. Dunn ("Dunn") stated that CFF's application was rejected "on the grounds that the requested custom plate series is inconsistent with [the DMV's] regulations in that the message is patently offensive and could provoke outrage from members of the public." Ex. E to Shafer Decl., Dkt. No. 206-2. Dunn went on to explain that despite CFF's laudable goals and purposes, the message chosen to convey them, as indicated in the application, is subject to varying interpretations as best, and may even be misleading. We believe that the phrase "Choose Life" is more commonly associated with the abortion rights debate than it is with the promotion and funding of adoption. The [DMV's] issuance of a "Choose Life" custom plate series would readily be perceived as governmental support for one side of a controversy that has existed in this country for several decades.
Id. Dunn next explained the merits of the DMV's concern about road rage, noting that "[t]here is, quite clearly, a significant segment of the population that finds such plates to be 'patently offensive.'" Id. Dunn concluded by stating that the DMV's "decision is not based on the content of the proposed speech, but instead is intended to preserve viewpoint neutrality by insuring that plates issued by the State do not present or support either side of this issue, or any other political, religious or social issue that has proven to be so contentious and divisive." Id. (emphasis in original).
In October 2003, CFF submitted a revised custom plate design that included a change in the tag line from "Choose Life" to "FUND-ADOPTION.ORG." The revised plate also included a smaller version of CFF's corporate logo, with the faces of two smiling children that are drawn as if in crayon by a child and the phrase, "Choose Life," as if drawn in crayon by a child, directly underneath. Ex. N to Shafer Decl., Dkt. No. 206. In February 2004, after receiving a follow-up telephone message from Rex regarding the status of CFF's revised plate, Martinez notified Rex by letter that the revised plate design was being reviewed and considered.
On March 31, 2004, Martinez wrote to Rex to inform her that the DMV was adhering to its earlier denial of CFF's plate application. Martinez incorporated by reference and attached Dunn's June 10, 2002 letter explaining the legal basis and rationale for the DMV's decision. Regarding the DMV's consideration of CFF's proposed plate design revision, Martinez noted that included in CFF's packet of information in support of the revision is the acknowledgment that "the phrase 'Choose Life,' rather than 'Choose Adoption' or 'Support Adoption' is more appealing to [CFF] specifically because it appeals to pro-life and anti-death penalty supporters." Ex. GG to Shafer Decl., Dkt. No. 207 (emphasis in original). Accordingly, Martinez added, he interprets that acknowledgment to state that "the proposed plate design is, in fact, intended to draw attention to the very political, social and religious issues that were addressed in [Dunn's] June 2002 letter." Id. Martinez went on to explain that "in issuing a special plate, control over the design, marketing and issuance of any custom plate series is solely within [the discretion of the Commissioner of DMV], unless otherwise directed by State law." Id.
On July 26, 2004, CFF again proposed an updated custom plate design with its corporate logo and domain name, "SafeHavens-Adoption.org" or alternatively, "NYChoose-Life.org" as the tag line. One week later, Dunn notified CFF that Martinez suspended the custom plate program, and therefore CFF had no application that was ripe for consideration. On August 4, 2004, CFF initiated the present action.
A motion for summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant has the initial burden to show the court why it is entitled to summary judgment. See Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986)). If the movant meets its burden, the burden shifts to the non-movant to identify evidence in the record that creates a genuine issue of material fact. See id., at 273 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348 (1986)).
When the court is deciding a motion for summary judgment, it must resolve all ambiguities and draw all reasonable inferences in the non-movant's favor. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598 (1970)). Where, as here, a court is considering cross-motions for summary judgment, each party's motion must be evaluated "on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Byrne v. Rutledge, 623 F.3d 46, 53 (2d Cir. 2010) (quotation and citation omitted).
In order to establish a claim pursuant to 42 U.S.C. § 1983, a plaintiff must show "(1) that some person has deprived him of a federal right, and (2) that the person who has deprived him of that right acted under color of state ... law." Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920 (1980) (internal quotations omitted)). "Section 1983 is not itself a source of substantive rights[,] but merely provides a method for vindicating federal rights elsewhere conferred[.]" ...