United States District Court, S.D. New York
DANIEL A. CEA and RAYMOND BOWLEY, Plaintiffs,
RUSSELL POTTER, KARL BRABANEC,  and ACCESS 23 TV, Defendants.
MEMORANDUM OPINION AND ORDER
NELSON S. ROMN, District Judge.
Plaintiffs Daniel A. Cea ("Cea") and Raymond Bowley ("Bowley"), former members of Defendant Access 23 TV ("Access 23" or "the station"), a public access television station, commenced the instant action under 42 U.S.C. § 1983 against Access 23, the Mayor of the City of Port Jervis, Russell Potter ("Potter"), and the Town Supervisor of the Town of Deerpark, Karl Brabenec ("Brabenec") (collectively, "Defendants"), seeking monetary damages for alleged violations of their First Amendment right to free speech. Specifically, Cea asserts that Potter and Brabenec violated his rights by allegedly conditioning their support of the station upon his removal, Cea asserts that Access 23 violated his rights by removing him due to the content of his speech, and Bowley asserts that Access 23 violated his rights by removing him after he defended Cea's free speech rights.
Potter and Brabenec now move separately for summary judgment under Federal Rule of Civil Procedure 56, asserting there is no genuine dispute of material fact and they are entitled to judgment on Cea's claim against them as a matter of law. Potter avers there is no admissible evidence supporting the allegation that he would not renew Access 23's lease unless Cea was silenced and there is no allegation of joint activity between him and Access 23. Brabenec avers there is no admissible evidence supporting the allegation that Access 23's programming decisions were influenced by his purported threat to refuse to provide Town funding or otherwise showing joint activity between him and Access 23. For the following reasons, the motions for summary judgment are granted.
I. THE FACTS
The facts are gleaned from the parties' 56.1 statements, affidavits, and exhibits submitted with this motion,  and are not in dispute except where noted.
Access 23 is the public access station for the City of Port Jervis ("City") and the Town of Deerpark ("Town"), New York. It began operations sometime during the 1980s. Bowley joined the station as its eighth or ninth member in the early 1990s. He aired a religious show that played religious tapes. In 1999, he began a second show called "Wake Up America" during which he played recordings of various other people but never spoke personally. Cea joined Access 23 in January 2009 when the station had approximately 24 members, roughly half of whom were active. Sometime in 2009, Cea began hosting a live program called "Voice of the People" during which he would discuss political issues and take viewer calls. In December 2009 Cea was elected to the Board of Trustees ("Board") for Access 23. Other Board members included sergeant-at-arms Edward Keys ("Keys"), station manager Jay Ortiz ("Ortiz"), and station president Sal Russo ("Russo").
Brabenec was elected to the Deerpark Town Board ("Town Board") in November 2007 and began serving as a board member in January 2008. He was elected Town Supervisor in November 2009 and began serving in January 2010. Cea, the Democratic nominee for Supervisor in 2009, lost the election to Brabenec. Cea was also a losing write-in candidate for Supervisor in the 2011 election. During 2009, Cea was openly critical of Brabenec and the Town government on his live television show, and Brabenec complained to Russo that Cea was spreading misinformation. In October 2009, Brabenec and a political coalition of candidates showed up unannounced to be audience members on Cea's show and correct any misinformation being given out.
In or around February 2010, Brabenec avers that Cea requested funding for Access 23 from the Town. Brabenec purportedly replied that to consider this request, the Town Board needed a formal proposal from the station along with a copy of the station's annual budget, programming description, and schedule. On April 12, 2010, Brabenec emailed one of the station's secretaries concerning Cea's request for funding, noting that the Town had yet to receive the requisite information. Likewise, Brabenec testified that on three separate occasions in 2010, Russo approached Brabenec with verbal funding requests. Brabenec purportedly asked for a written proposal with a budget to submit to the Town Board, which Russo claimed was difficult to accomplish due to infighting with Cea. Access 23 never submitted a proposal.
Potter was a member of the Port Jervis City Council ("Council") from January 1, 2006, through December 31, 2009. He has been Mayor of the City since January 1, 2010. The City has always allowed Access 23 to operate in a City-owned building, paying either no rent or $1 per month. Access 23 was supposed to pay its own gas and electric bills and carry its own insurance. Potter testified at deposition that the station was paying the utilities out of its franchise fee, yet was not current on these payments from 2010 through 2012. For an unspecified period of time, the City provided a quarterly stipend of $500 to the station. Potter avers that the City ceased these payments in mid-2009 after providing notice on May 18, 2009, that the Council voted (a) to cease making the $500 donations, (b) to serve on the station a notice to vacate the premises, and (c) to require the station to remove the City's name from the not-for-profit corporate name. Plaintiffs assert that the City provides no documentation showing it ceased paying the stipend. The station was never evicted from the premises.
The City gave the May 18, 2009, notice to the station because the Council and previous Mayor were concerned about ongoing conflicts within the Access 23 organization. These conflicts became public beginning in 2009 when station members spoke about the internal disputes at Council meetings. In fact, throughout 2009 and 2010, Cea, Bowley, Russo, Ortiz, Keys, and numerous other Access 23 members were involved in filing lawsuits, criminal complaints, and internal grievances against each other and/or being defendants in lawsuits, bound by restraining orders, and the subjects of grievances. As a result of the internal grievances, some members were removed from leadership positions while others were expelled from the station and barred from the premises. During some meetings, police were even called to the station due to disputes.
In June 2010, Cea and other Access 23 board members attended a meeting with Potter. Potter asserts that Ortiz, Cea, Russo, and one other Board member expressed a desire for physical upgrades to the City-owned building that Access 23 used, but that Potter told them the City had no funds available. Potter avers this was the only meeting he had with Russo. Plaintiffs assert that Potter suggested a separate board should oversee Access 23's Board, but that there were no discussions about capital improvements.
On or about August 4, 2010, Access 23 held its regular monthly membership meeting. Plaintiffs offer affidavits from three members who were present at the meeting. The affiants state that Keys said Brabenec had offered to provide funding to Access 23 and/or match the City's funding if the station removed Cea's show and expelled Cea from station membership. One affiant claims that Keys subsequently said Potter wanted Cea removed, the second claims that Russo instead of Keys made this statement, while the third claims both Russo and Keys made this statement. One affiant also claims that Potter conditioned the renewal of the station's lease on Cea's removal. At his deposition, Bowley testified that he was also present at this meeting, that Keys said Brabenec would offer funding if Cea was removed, and that Russo said Potter would renew the lease only if Cea was removed. Russo, Keys, Brabenec, and Potter all deny making the above statements.
Brabenec in reply offers a video recording of the August 4, 2010, meeting along with a transcript covering two minutes of the meeting. The conversation over Cea's show, however, lasted more than twelve minutes. Throughout the discussion of Cea's show there are many gaps in the audio and many statements are inaudible or unintelligible. Nonetheless, the following is clear. Russo and Ortiz discussed the possibility of having a show rebutting the information presented on Cea's show. Russo also mentioned his plan to meet with Potter. Ortiz expressed the belief that "if you're slandered you should pursue the individual who slandered you, " and stated, "if it isn't true it's slander and [Cea] I believe opens the lines...." Keys asserted he spoke to Potter numerous times, and said one reason "they are pissed is because of what had been directed toward, not only the Port Jervis Council and the Mayor, but also the Town of Deerpark." Keys also mentioned that Brabenec wanted to give the station the same amount of money Port Jervis was giving. He also pointed out that the station was "begging" the City and Town for money. When a station member asked, "do you really think that even if we stop doing that they are going to give us anything? They already got what they wanted, " Keys responded, "Of course. They always have." Russo subsequently asserted the station still got its money from the City even after Cea's show came on the air.
On August 10, 2010, according to Cea's deposition, Ortiz called Cea and said that Cea's show was being removed from the air by Potter and Brabenec, who had taken over the station. Cea testified that he went to the station on August 11, 2010, to do his next show, but the control room director told him he was not allowed to air the show. Cea further testified that on August 12, 2010, Russo called Cea asking why Cea had to "piss... off" Potter and ...