United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
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.
Summary of complaint.
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.
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
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.
one of plaintiff's grantors found out what had happened,
it informed him it was denying all of his pending and future
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.
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
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.
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
Standards governing motion to dismiss - Rule
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.