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Hershey v. Kansas City Kansas Community College

United States District Court, D. Kansas

February 17, 2017

RICHARD HERSHEY, Plaintiff,
v.
KANSAS CITY KANSAS COMMUNITY COLLEGE; DERYL W. WYNN, in his official capacity as Chief Compliance Officer of Kansas City Kansas Community College, and in his individual capacity; DR. JONATHAN LONG, in his official capacity as Dean of Students of the Kansas City Kansas Community College, and in his individual capacity; WENDELL MADDOX, in his official capacity as a Member of the Kansas City Kansas Community College Board of Trustees; CATHY BREIDENTHAL, in her official capacity as a Member of the Kansas City Kansas Community College Board of Trustees; DONALD ASH, in his official capacity as a Member of the Kansas City Kansas Community College Board of Trustees; JOHN RIOS, in his official capacity as a Member of the Kansas City Kansas Community College Board of Trustees; RAY DANIELS, in his official capacity as a Member of the Kansas City Kansas Community College Board of Trustees; CLYDE TOWNSEND, in his official capacity as a Member of the Kansas City Kansas Community College Board of Trustees; and MARY ANN FLUNDE, in her official capacity as a Member of the Kansas City Kansas Community College Board of Trustees, Defendants.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE.

         Plaintiff filed this action under 42 U.S.C. § 1983 claiming the defendants are depriving him of First Amendment rights. He alleges the defendants have arbitrarily denied his requests to use the upper level lobby and hallways of Jewell Hall, a building on the Kansas City Community College campus, to distribute leaflets and display videos advocating a vegetarian lifestyle. (Dkt. 1). The matter is now before the court on defendants' motion to dismiss the complaint (Dkt. 20) and plaintiff's motion for a preliminary injunction (Dkt. 5). For the reasons discussed herein, the motion to dismiss is granted in part and denied in part, and the motion for preliminary injunction is denied.

         I. Summary of complaint.

         The following allegations are taken from the complaint. Plaintiff is a vegetarian advocate who spends time on college campuses distributing booklets and showing short videos about a vegetarian lifestyle. He is compensated by not-for-profit organizations and receives grants for his work. For a period of years beginning in 2010, he engaged in such advocacy at the Kansas City Kansas Community College (hereinafter “the College”), primarily “in the hallways and upper level lobby area of Jewell Hall.” Plaintiff alleges that the College holds the hallways and upper lobby of Jewell Hall open to speech by the general public on a variety of issues, and that these areas constitute a designated non-traditional public forum for the exercise of First Amendment rights.

         In 2010, the Vice President of Student Services at the College wrote plaintiff and others to welcome them to conduct advocacy in the hallways of campus buildings as long as they checked in with the Campus Police upon arrival. Plaintiff has always checked-in as requested. In October 2013, plaintiff arranged with the same Vice President to use tables so he could present videos to students, using portable DVD players with headphones and privacy screens. In 2013, the Dean of Student Services, Dr. Jonathan Long, allowed plaintiff to offer video viewings from tables and chairs in the hallway across from the Student Services office on the upper level of Jewell Hall. On November 5, 2013, plaintiff and an assistant presented videos to about 73 students and distributed over 400 booklets without disrupting nearby classrooms or College operations.

         On January 14, 2015, plaintiff petitioned Long to use tables for two weeks beginning January 28, in the same location as before. Despite calling the College, plaintiff received no response, prompting him to petition Long again on January 26, this time asking for the same table arrangement for February 2. On January 27, Long responded by stating that plaintiff's request would be granted subject to the following limitations: it would be for a two-hour period, in the lower level of Jewell, and only on February 4. Plaintiff had not requested the date of February 4 and would be out of town that day. On January 28, plaintiff again requested that he be allowed to use the tables on February 2, for about eight hours, in the same location as before. Long denied plaintiff's request on January 28. Plaintiff went to the College on February 2 and met with officials in an attempt to persuade them to let him use the area. While he was there, he saw that the upper level of Jewell Hall was not in use.

         When one of plaintiff's grantors found out what had happened, it informed him it was denying all of his pending and future grant requests.

         On March 30, 2015, plaintiff petitioned Dr. Long's supervisor, Dr. Michael Vitale, the Vice President of Academic Services, for permission on April 7 to use the same location he had used before. On April 1, 2015, the College's Chief Compliance Officer and Legal Counsel, Deryl Wynn, denied the request, explaining after the fact that he did so because there were multiple activities scheduled for the requested date. On April 7, plaintiff petitioned Wynn for permission to use the space on any other day of the week of April 7. On April 10, plaintiff petitioned to use the space on April 15. Wynn did not respond to either of these petitions.

         On September 15, 2015, plaintiff emailed Wynn and other College officials asking for permission to offer videos and distribute literature on September 22, using tables in the same location as before. Long denied the request on September 18.

         Plaintiff wants to distribute his materials in the same area he used previously. He alleges that the College has no standards for approving or denying requests to use College facilities for expressive activities, but instead vests absolute discretion in its officials, which “amounts to viewpoint and subject matter discrimination on an ad hoc basis.” He alleges the College arbitrarily and capriciously denied his petitions under color of state law and thereby deprived him of First Amendment rights. He contends he lost income and suffered other damages as a result.

         Plaintiff prays for a declaratory judgment finding that the First Amendment protects his right to use the area in upper Jewell Hall for the distribution of booklets and video screenings. He seeks injunctive relief preventing defendants from interfering with these First Amendment rights. He seeks compensatory damages and fees and costs, including attorney's fees.

         II. Standards governing motion to dismiss - Rule 12(b)(6).

         A complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. All well-pleaded factual allegations in the complaint are accepted as true and viewed in the light most favorable to the plaintiff for purposes of determining whether the complaint states a plausible claim for relief. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009). See Cunningham v. Wichita State Univ., No. 6:14-CV-01050-JTM, 2014 WL 4542411, at *2 (D. Kan. Sept. 12, 2014), aff'd, 613 F.App'x 758 (10th Cir. 2015).

         III. ...


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