16-2437-cv Justin Renel Joseph v. The Metropolitan Museum of Art, City of New York



### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER
Rulings by summary order do no t have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted a nd 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 ci te either the Federal A ppendix 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.

At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse , 40 Foley Square, in the City of New York, on the 22 nd day of March, two thousand seventeen. PRESENT: JOSÉ A. CABRANES, RICHARD C. WESLEY, Circuit Judges, WILLIAM K. SESSIONS, III, District Judge. *

_____________________________________ J USTIN R ENEL J OSEPH , Plaintiff-Appellant
, v. 16-2437-cv

T HE M ETROPOLITAN M USEUM OF A RT , C ITY OF N EW Y ORK , Defendants-Appellees

.

_____________________________________

FOR PLAINTIFF-APPELLANT: Justin Renel Joseph, pro se , Jersey City, NJ.

FOR THE METROPOLITAN MUSEUM Christopher J. Robinson, Robert OF ART: Corn-Revere, Davis Wright Tremaine LLP, New York, NY and Washington, DC.

* Judge William K. Sessions, III, of the United States District Court for the District of Vermont, sitting by designation.FOR THE CITY OF NEW YORK: Jane L. Gordon, Marta Ross, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern District of New York (Gregory H. Woods, Judge ).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED

. Appellant Justin Renel Joseph, proceeding pro se , appeals from a judgment in favor of the Metropolitan Museum of Art (“the Met”) and the City of New York (“the City”) in his suit under Titles II and VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a et seq. , § 2000d et seq. , and the First Amendment. Joseph alleged that the Met’s display of certain paintings depicting Jesus as white was discriminatory and the City was implicated in the di scrimination because it provided funds to the Met. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo the dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences in plaintiff’s
favor. Biro v. Conde Nast , 807 F.3d 541, 544 (2d Cir. 2015). Th e complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Although a court must accept as true all factual allegations in the complaint, that requireme nt is “inapplicable to legal conclusions.” Iqbal , 556 U.S. at
678.
First, Joseph argues that the district court erred by not allowing him to proceed on a disparate-impact theory and by requiring him to plea d physical denial of equal access in order to state
a claim under Title II. We hold that district cour t correctly concluded that Joseph’s Title II claims failed because he did not plausibly allege that he was denied the e qual use and enjoyment of the Met. Title II guarantees all persons “the full and equal enjo yment of the goods, servi ces, facilities, privileges, advantages, and accommodations of any place of pub lic accommodation . . . without discrimination or segregation on the ground of race, color, religion or national origin .” 42 U.S.C. § 2000a. “[T]he overriding purpose of Title II [was] to remove the daily affront and humiliation involved in discriminatory denials of access to facilit ies ostensibly open to the general public.” Daniel v. Paul , 395 U.S. 298, 307–08 (1969) (quotation marks and citation omitted). Joseph concedes that he was given3 access, but took issue with the content on display at the Met. Accordingly, Joseph fails to allege any denial of access or different treatm ent than other visitors, which is re quired to sustain a Title II claim.
Second, Joseph argues that he should have been allowed to pursue his Title VI claims under a disparate-impact theory, at least insofar as he so ught declaratory relief. The district court properly rejected Joseph’s Title VI claims because he did not pl ausibly allege that the Met’s display of paintings was an act of intentional discrimination. Joseph’s ar gument is foreclosed by Supreme Court precedent holding that Title VI prohibits only intentional discrimination. See Jackson v. Birmingham Bd. of Educ. , 544 U.S. 167, 178 (2005) (observing that Alexander v. Sandoval , 532 U.S. 275 (2001), “held that private parties may not invoke Title VI regulations to obtain redress for disparate-impact discrimination because Title VI itself prohibits only intenti onal discrimination”). And the plaintiff in Sandoval was herself seeking declaratory relief. See Sandoval v. Hagan , 7 F. Supp. 2d 1234, 1244 (M.D. Ala. 1998), aff’d , 197 F.3d 484 (11th Cir. 1999), rev’d sub nom.
, Sandoval , 532 U.S. 275.
Third, Joseph argues that he adequately pleaded that the City engaged in impermissible government speech by providing funding to the Met, which in turn violated Titles II and VI by displaying the allegedly discriminatory paintings. Si nce this claim is derivative of his discrimination claims, which the district court properly dismi ssed, this claim necessarily fails as well.
Finally, Joseph argues that he should have been granted leave to amend. In this Circuit, pro se complaints should not be dismissed by the district court without granting leave to amend at least once when a liberal reading of the complaint gives “any indication” that a valid claim might be stated. Shomo v. City of New York , 579 F.3d 176, 183 (2d Cir. 2009) (in ternal quotation marks omitted). However, a district court need not grant leave to am end when amendment would be “futile.” See, e.g.
, Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. 2000). We conclude that the district court did not err by denying leave to amend. Nothing in Joseph’s complaint, hi s motion papers, or his appellate brief suggests that he could state a plausible claim. Accordingly, gr anting leave to amend would have been futile.
We have considered Joseph’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the district court’s judgment.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk