Young v. Mayor, Portsmouth, City of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Huguette Nicole Young
v. 	Case No. 20-cv-1080-LM
Rick Becksted, Mayor,
City of Portsmouth
REPORT AND RECOMMENDATION
Huguette Nicole Young, an Oregon resident, has filed a
verified complaint for declaratory and emergency injunctive
relief (Doc. No. 1), claiming that a mask ordinance passed in
September 2020 by the City of Portsmouth, New Hampshire,
violates her First Amendment right of free speech. 	She claims
the ordinance has the effect of “block[ing] plaintiff’s ability
to communicate audibly, clearly, and expressively (e.g., by
violating plaintiff’s right to smile at others)” by requiring
her to wear a mask in Portsmouth. 1 	Doc. No. 1, at 1-2. 	Ms.
1 The ordinance requires people in Portsmouth to wear “face
coverings whenever they are in indoor or outdoor places which
are accessible to the public, in which a physical distancing of
six feet (6’) between people who are not members of the same
household is not maintained.” 	City of Portsmouth, COVID-19
Information, Mask Ordinance, Ord. No. 03-2020, Chp. 3, Art. XI,
Sect. 3.1101, https://www.cityofportsmouth.com/city/covid-19-
information (last visited Nov. 9, 2020). 	Permissible face
coverings include “any product . . . commercially manufactured
or personally created,” that “covers the nose and mouth of the
person wearing it.” 	Id. Sect. 3.1102. 	The ordinance includes
exceptions for children six and younger, those with certain
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Young’s complaint is before the court for review to determine if
she has invoked the court’s subject matter jurisdiction. 	See
Fed. R. Civ. P. 12(h)(3) (court must dismiss action if at any
time it determines that it lacks subject matter jurisdiction).
Ms. Young has simultaneously filed an application to
proceed in this case without paying the full filing fee (Doc.
No. 3), a motion to file electronically (Doc. No. 4), and a
motion for a speedy hearing (Doc. No. 2). 	Those motions remain
pending at this time. 	The request for a preliminary injunction
set forth in the complaint (Doc. No. 1) has been referred to the
undersigned magistrate judge for a report and recommendation as
to disposition. 	See Nov. 6, 2020 Order.
Discussion
I. 	Plaintiff’s Burden to Establish Subject Matter Jurisdiction
The court may inquire, sua sponte, into its subject matter
jurisdiction and must dismiss the case if it finds it lacking.
See Fed. R. Civ. P. 12(h)(3). 	“Under Article III of the
Constitution, standing is a prerequisite to subject matter
jurisdiction that [courts] must address, sua sponte if
necessary, when the record reveals a colorable standing issue.”
health conditions, and people eating and drinking in the City’s
restaurants and bars. 	Id. Sect. 3.1103.
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Rivera v. IRS, 708 F. App’x 508, 513 (10th Cir. 2017); see also
IMS Health, Inc. v. Ayotte, 550 F.3d 42, 48 (1st Cir. 2008)
(“‘Standing is a threshold issue in every federal case.’ 	It
bears directly upon a court’s power to adjudicate a dispute.”
(citation omitted)), abrogated in part on other grounds, Sorrell
v. IMS Health Inc., 564 U.S. 552, 562 (2011).
“‘[T]he party invoking the jurisdiction of a federal court
carries the burden of proving its existence.’” 	Calderón-Serra
v. Wilmington Tr. Co., 715 F.3d 14, 17 (1st Cir. 2013) (citation
omitted). 	At the pleading stage, Ms. Young “bears the burden of
establishing sufficient factual matter to plausibly demonstrate
[her] standing to bring the action”; “[n]either conclusory
assertions nor unfounded speculation can supply the necessary
heft.” 	Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st
Cir. 2016). 	In light of Ms. Young’s pro se status, the court
construes her pleadings liberally, see Erickson v. Pardus, 551
U.S. 89, 94 (2007), in determining if the court’s jurisdiction
has been properly invoked.
To satisfy Article III’s standing requirement, the
plaintiff bears the burden of establishing (1) that she has
suffered an “injury in fact”; (2) that the injury is “fairly
traceable to the actions of the defendant”; and (3) that the
“injury will likely be redressed by a favorable decision.”
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Bennett v. Spear, 520 U.S. 154, 162 (1997) (internal quotation
marks omitted); Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992). 	An “injury in fact” is “an invasion of a legally
protected interest which is (a) concrete and particularized,”
and “(b) actual or imminent, not conjectural or hypothetical.”
Lujan, 504 U.S. at 560 (internal quotation marks and citations
omitted); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398,
409 (2013) (“threatened injury must be certainly impending to
constitute injury in fact,” and “[a]llegations of possible
future injury are not sufficient” (citations and internal
quotation marks omitted)). 	For an injury to be “fairly
traceable” to a defendant’s actions, there must “be a causal
connection between the injury and [defendant’s] conduct,” rather
than “to some third party’s independent action.” 	Council of
Ins. Agents & Brokers v. Juarbe-Jiménez, 443 F.3d 103, 108 (1st
Cir. 2006) (citations and internal quotation marks omitted).
Furthermore, “[a] plaintiff must demonstrate standing
separately for each form of relief sought.” 	Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
185 (2000). 	“‘[A] continuing violation or the imminence of a
future violation’ is necessary to confer Article III standing to
seek injunctive relief.” 	Conservation Law Found. v. Pub. Serv.
Co. of N.H., No. 11-cv-353-JL, 2012 WL 4477669, at *10, 2012
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U.S. Dist. LEXIS 138881, at *40, 2012 DNH 174 (D.N.H. Sept. 27,
2012) (citation omitted); see also City of L.A. v. Lyons, 461
U.S. 95, 109 (1983) (plaintiff who had been subjected to police
chokehold lacked standing to seek injunction against enforcement
of police chokehold policy in future because he could not
credibly allege that he faced realistic threat from policy).
Ms. Young has filed actions challenging mask requirements
around the country. 	Orders issued in the following cases have
dismissed her complaint, alleging facts analogous to those
alleged here, for lack of subject matter jurisdiction: 	Young v.
Frosh, No. 1:20-cv-2935-ELH, 2020 WL 6150952, at *4, 2020 U.S.
Dist. LEXIS 193396, at *8 (D. Md. Oct. 20, 2020) (allegations
that Ms. Young might be employed again as truck driver and might
stop in Maryland are speculative and insufficient to establish
standing or ripeness); Young v. Hill, No. 1:20-cv-02575-LRY-TAB
(D. Ind. Oct. 14, 2020) (ECF No. 6) (allegations that plaintiff
lives in Oregon, is not currently employed as a truck driver,
and might get a job sometime in the future which might require
her to stop in Indiana, are insufficient to establish standing);
Young v. Healey, No. 20-cv-11832-RGS, 2020 WL 5995213, at *2,
2020 U.S. Dist. LEXIS 187876, at *4-5 (D. Mass. Oct. 9, 2020)
(allegations that she resides in Oregon, has no plans to travel
to Massachusetts, and no longer holds commercial driver’s
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license fail to establish standing or ripeness), recons. denied,
No. CV 20-11832-RGS, 2020 WL 6384314, at *2, 2020 U.S. Dist.
LEXIS 202607, at *3 (D. Mass. Oct. 30, 2020) (intent to visit
Massachusetts where she will be subject to mask mandate while
shopping is insufficiently imminent to show she has standing);
Young v. Rutledge, No. 4:20-CV-01185-BRW, 2020 U.S. Dist. LEXIS
185678, at *1 (E.D. Ark. Oct. 7, 2020) (allegations that her
“right to free speech will be violated . . . should [she] decide
to take a trucking job that has her working in, or passing
through, Arkansas because [she] will be required to wear a mask
while doing routine shopping for supplies at Walmart in
Arkansas” fail to establish standing).
The complaint here alleges facts similar to those alleged
in those cases: 	she lives in Oregon; she used to work as a
trucker; and she has visited or shopped in the past in
Portsmouth. 	In addition she alleges she is looking for
employment in Portsmouth but will not accept any offers or
otherwise return there unless there is no mask ordinance. 	Those
facts fail to establish that she has standing at this time to
challenge the Portsmouth mask ordinance. 	The district judge in
this case should dismiss the complaint, without prejudice, for
failure to invoke this court’s subject matter jurisdiction over
her claims for injunctive and declaratory relief.
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II. 	Preliminary Injunction
“‘A plaintiff seeking a preliminary injunction must
establish that [s]he is likely to succeed on the merits, that
[s]he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in [her]
favor, and that an injunction is in the public interest.’”
Glossip v. Gross, 135 S. Ct. 2726, 2736 (2015) (citation
omitted). 	The likelihood of success and irreparable harm are
the factors that weigh most heavily in the analysis. 	See Esso
Std. Oil Co. v. Monroig–Zayas, 445 F.3d 13, 18 (1st Cir. 2006);
see also Voice of the Arab World, Inc. v. MDTV Med. News Now,
Inc., 645 F.3d 26, 32 (1st Cir. 2011). 	The burden of proof is
on the movant. 	See Esso Std. Oil Co., 445 F.3d at 18. 	As this
case should be dismissed for lack of jurisdiction, the plaintiff
has failed to show any likelihood of success on the merits.
Furthermore, Ms. Young has failed to show that an
injunction is necessary to avoid irreparable harm. 	The
ordinance will expire on January 4, 2021. 2 	The facts alleged in
the complaint do not show that Ms. Young is likely to be
2 See City of Portsmouth, COVID-19 Information, Mask
Ordinance, Ord. No. 03-2020, Chp. 3, Art. XI, Sect. 3.1101-
3.1104, https://www.cityofportsmouth.com/city/covid-19-
information (last visited Nov. 9, 2020).
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subjected to the mask requirement in Portsmouth before that
date, and, if she were to become subjected to it, she has not
shown that, in the absence of a preliminary injunction, she
cannot take steps to wear a diaphanous mask and/or clear face
shield to avoid the injury she alleges. 	Cf. Young v. Bottoms,
No. 1:20-cv-04431-TWT (N.D. Ga. Nov. 3, 2020) (ECF No. 7)
(“[t]here is no constitutional right to be seen smiling while
talking,” and “[i]f there was, [Ms. Young] could wear a
transparent face shield”); Young v. James, No. 20-cv-8252-PAE,
2020 U.S. Dist. LEXIS 198392, at *8 (S.D.N.Y. Oct. 26, 2020)
(denying motion to enjoin New York executive order (“EO”) that
requires masks use in public as EO “does not prevent Young from
speaking or expressing herself”; “[i]t simply requires that,
under certain circumstances, she speaks through a face
covering,” and, “at most, imposes a content-neutral limitation
on where and how a person can speak or express themselves”),
appeal docketed, No. 20-3790 (2d Cir. Nov. 5, 2020).
Accordingly, the district judge should deny Ms. Young’s request
for a preliminary injunction.
Conclusion
For the foregoing reasons, the district judge should
dismiss all of the claims in this action without prejudice for
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lack of subject matter jurisdiction, deny the request for a
preliminary injunction, and deny the pending motions (Doc. Nos.
2, 3, 4) as moot. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. 	See Fed. R. Civ. P. 72(b)(2). 	That period may be
extended upon motion. 	Failure to file objections within the
specified time waives the right to appeal the district court’s
order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
November 10, 2020
cc: 	Huguette Nicole Young, pro se
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