So it seems the first amendment is alive and well thanks to judge Jesse Furman. For those of you unfamiliar with the Mike Thomas case read:
Mike Thomas was an extraordinary teacher during his tenure at Manhattan Center for Science and Math High School. Mike was forced from Manhattan Center after Principal David Jimenez trumped up charges against him. Mike was eventually sent back to Manhattan Center and retired a couple of years later. Needless to say that the trumped up charges were a found unsubstantiated.
GO GET THEM MIKE.
Former Teacher’s First Amendment Lawsuit Goes Forward
Mark Hamblett, New York Law Journal
September 8, 2015 | 0 Comments
Manhattan Center for Science and Mathematics
A retired New York City teacher who claims administrators had him arrested for distributing information about his blog to students outside of his former school can pursue his First Amendment claim following a judge’s ruling.
Michael Thomas claims officials drummed up a harassment and assault prosecution in 2013 because they wanted to stop him from giving his business card to students with information of his blog, which was critical about the administration at the 1,600-student Manhattan Center for Science and Mathematics.
Thomas had retired in July 2012 after almost 13 years as a teacher at the center. In September of that year, he created a blog “MCSM Satire” which used parody to criticize the administration and teachers at the school. Among his targets were principal J. David Jiminez and physical education teacher and acting dean of students Dennis Hernandez, both of whom he wanted removed.
On Jan. 10, 2013, Thomas was handing out his business cards on 116th Street and First Avenue when he was approached by Hernandez and assistant principals Daniel Albetta and Brian Bradley. Albetta told him to “Go the f**k away” three times, and all three insisted that Thomas’s blog was libelous, according to the suit.
The three men prevented him from interacting with students and, allegedly Jiminez reached out to shake Thomas’ hand, but then threw himself on the ground, saying Thomas assaulted him.
Thomas was arrested and later convicted before New York Supreme Court Justice Kevin McGrath of second-degree harassment. The school officials said they were merely trying to maintain a “safe corridor” for students along 116th Street. Thomas, who represented himself, was acquitted on a charge of assault.
Thomas said a local store’s video camera showed he was neither harassing nor accosting students. He filed suit pro se in the Southern District in Thomas v. New York City Department of Education, 14-cv-8019, alleging First Amendment violations for the educators’ interference with his communications with the students.
The city argued the case, which was assigned to Judge Jesse Furman, should be dismissed because the officials were not acting under color of state law when they confronted Thomas, and that he could not bring claims implying the invalidity of his conviction for harassment.
Furman first rejected the claim based on Thomas’ voluntary decision to take down his blog, which was based on advice of counsel in his criminal case and because he was facing an order of protection in that case.
But Furman went the other way on the color of state, where the teachers claimed they were acting as private citizens because they had no authority to prevent him from handing out the cards.
The judge said “to satisfy the state-action requirement, plaintiff need not allege that defendants had actual authority to prevent him from handing out business cards to students; he need allege only that defendants ‘purport[ed] to act according to official power,'” Emanuele v. Town of Greenville, 143 F. Supp. 2d 325 (S.D.N.Y. 2001).
“Construed liberally, the complaint does just that, as it alleges that defendants testified at plaintiff’s trial that they approached him pursuant to their duty as school officials to maintain a safe corridor,” he said.
Furman said it was sufficient, at this stage of the litigation, to allege the defendants had claimed the authority “by virtue of their positions at MCSM, to prohibit plaintiff from interacting with students at that location.”
The defendants also opposed Thomas’ application to amend his complaint to add a claim for malicious prosecution on the ground that the prosecution for harassment was not terminated in his favor.
The judge allowed the amendment, however, saying it was too early to tell whether the assault charge on which Thomas was acquitted was “sufficiently distinct from the harassment charge” on which he was convicted.
Neil Giovanatti, of counsel at the Law Department, represents the defendants.
Michael P. Thomas, Plaintiff v. New York City Department of Education, et al., Defendants, 14-CV-8019