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Hirt v. Unified School District No. 287

United States District Court, D. Kansas

December 28, 2017

GENE HIRT, ET AL., Plaintiffs,
v.
UNIFIED SCHOOL DISTRICT NO. 287, ET AL., Defendants.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiffs Gene Hirt and Eric Clark, proceeding pro se, bring this action against Defendants Unified School District No. 287 and Superintendent Jerry Turner, in his individual capacity, [1] seeking injunctive, declaratory, and monetary relief (1) pursuant to 42 U.S.C. § 1983 for Defendants' alleged violation of their rights under the First, Fifth, and Fourteenth Amendments, and (2) for Defendants' alleged violation of the Kansas Open Meetings Act and the Kansas Open Records Act. On October 23, 2017, the Court issued a Memorandum and Order denying as moot Plaintiffs' Motion for a Preliminary Injunction.[2] This matter now comes before the Court on Plaintiffs' Motion for Reconsideration of that order (Doc. 43). The motion is fully briefed and the Court is prepared to rule. For the reasons set forth below, the Court denies Plaintiffs' motion.

         I. Procedural and Factual Background

         The factual background underlying the parties' dispute and Plaintiffs' motion for a preliminary injunction is set forth in detail in the Court's prior order and will not be repeated at length here. In short, Plaintiffs Hirt and Clark are residents of Pomona and Williamsburg, Kansas, respectively, and both cities are within the area served by Unified School District No. 287. Plaintiffs contend that Defendant Jerry Turner, the Superintendent of Schools for U.S.D. No. 287, banned Hirt from school property by letter dated July 13, 2015, following a name-calling incident after a school board meeting. Turner's letter stated that Hirt was no longer allowed on school property due to his “inability to express [himself] in a civil and socially acceptable manner.”[3] Since Hirt's receipt of that letter, neither Hirt nor Clark has attended any school board meetings. Clark claims that he has become fearful that he, like Hirt, will be banned from school property if he expresses himself without reservation at school board meetings. In August 2015, Hirt was escorted off school property by the county sheriff when he and Clark attended an open house at the Williamsburg Elementary School. Plaintiffs filed this case approaching two years later on May 16, 2017, and sought a preliminary injunction ordering that: (1) “the Defendants shall not enforce the ad hoc ‘socially acceptable manner' policy, ” and (2) “the Defendants shall not take adverse action against Plaintiff Hirt based on the July 13, 2015 letter provided to Hirt.”[4]

         Defendants contend that Hirt has a significant history of disrupting school board meetings by uttering obscenities outside the time allotted for public comment, and that he has made numerous unauthorized visits to school property during school hours-despite having no children or other family members enrolled as students-that have caused disruptions and safety concerns. Defendants sought several extensions of time to respond to Plaintiffs' motion for a preliminary injunction. In their second request for more time on June 14, 2017, Defendants stated:

Defendant Turner placed a letter in the mail to Plaintiff Hirt today which permits Hirt to attend public meetings on District premises. The letter to Plaintiff Hirt moots most if not all of the motion for preliminary injunction. Defendants' counsel need additional time to evaluate the effect of this development on the motion for preliminary injunction and complete an appropriate response.[5]

         Defendants then responded to Plaintiffs' motion for a preliminary injunction on June 19, 2017, arguing that the motion was moot because Defendants had “withdrawn any restriction from Hirt attending Board meetings or other District events to which the general public is invited . . . .”[6]

         On June 21, 2017, the Court issued an order directing Plaintiffs to show good cause in writing, on or before July 5, 2017, why their motion for a preliminary injunction should not be found moot.[7] On June 26, 2017-nine days before Plaintiffs' response to the Court's show-cause order was due-Defendants filed an Amended Response in Opposition to Plaintiffs' Motion for Preliminary Injunction.[8] Defendants' amended opposition made the same arguments with respect to mootness as their original response, but attached a declaration by Turner and the June 14, 2017 letter from Turner to Hirt that had been omitted from their original opposition.

         On the same date, Plaintiffs responded to the Court's show-cause order in an eight-page brief on the issue of mootness. While Plaintiffs acknowledged that Hirt had received a letter from Turner, they stated that Hirt had “misplaced the letter (potentially thrown away with a newspaper by accident) and cannot recall verbatim what all of the text of that letter provided.”[9]Despite complaining that Turner's letter to Hirt was not in the record, Plaintiffs were able to make essentially the same mootness arguments that they assert now in their motion for reconsideration, i.e., that Turner's letter did not “fully remedy all ongoing infringements of fundamental” rights.[10] Plaintiffs stated that they intended to “briefly” show good cause why their motion was not moot, and asked for “the Court's patience in awaiting Plaintiffs' Reply brief to Defendants' opposition . . . brief.”

         Three days later, on June 29, 2017, Plaintiffs filed their Reply to Defendants' Response in Opposition to Plaintiffs' Motion for Preliminary Injunction, once again arguing that “the described alleged letter of June 14, 2017 to Hirt does not alleviate all unlawful restrictions on Plaintiffs' First Amendment rights.”[11] Plaintiffs asked that if the Court decided to accept Defendants' belatedly filed amended opposition, that the Court also allow “additional briefing including affidavits concerning dispute of any of the newly asserted [sic] in the Declaration or letter.”[12] The Court declined to allow additional briefing and denied Plaintiffs' motion for a preliminary injunction as moot on October 23, 2017.

         II. Legal Standard

         D. Kan. Rule 7.3(b) governs motions to reconsider non-dispositive orders. Under that rule, a party may seek reconsideration on the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or prevent manifest injustice.[13] While a motion to reconsider is available where the court has “misapprehended the facts, a party's position, or the controlling law, ” such a motion does not permit a party to “revisit issues already addressed or to advance arguments that could have been raised in prior briefing.”[14] “The Tenth Circuit has observed that ‘a motion for reconsideration is an extreme remedy to be granted in rare circumstances.'”[15] “A party's failure to present its strongest case in the first instance does not entitle it to a second chance in the form of a motion to reconsider.”[16] Whether to grant a motion for reconsideration is left to the court's discretion.[17]

         Because Plaintiffs proceed pro se, the Court must construe their filings liberally and hold them to a less stringent standard than formal pleadings drafted by attorneys.[18] However, the Court “cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record.”[19] The requirement that the court must read a pro se plaintiff's pleadings broadly stops “at the point at which [the court] begins to serve as [the plaintiff's] advocate, ”[20] and a plaintiff's pro se status does not excuse him from complying with federal and local rules.[21]

         III. Analysis

         In more than 30 pages of briefing on their motion for reconsideration, Plaintiffs contend that a variety of errors and deficiencies in the Court's October 23, 2017 Order warrant a different outcome on the issue of mootness. In their reply in support of their motion for reconsideration, Plaintiffs clarify that they have five essential arguments, though it appears to the Court that several of these arguments are restatements or variations of the same issue. The Court will address each argument in turn.

         First, Plaintiffs contend that the Court's failure to allow them more time and more briefing to address the mootness issue following the filing of Defendants' amended opposition amounts to plain error and a violation of due process. The Court has already considered and rejected Plaintiffs' argument that Defendants' amended opposition should be disregarded, or that Plaintiffs should be permitted another opportunity to respond. In its October 23, 2017 Order, the Court expressly addressed Plaintiffs' complaint about Defendants' amended opposition, stating in a footnote:

Plaintiffs contend in their Reply to Defendants' Response in Opposition to Plaintiffs' Motion for Preliminary Injunction that the Court should disregard Defendants' Amended Response in Opposition to Plaintiffs' Motion for Preliminary Injunction, which Defendants filed on June 26, 2017-a week after submitting their original opposition and the same day that Plaintiffs responded to the Court's show cause order. Defendants' two briefs make the same arguments concerning mootness. The primary difference is the addition of Turner's Declaration and the attachment of Turner's June 14, 2017 letter to Hirt. Plaintiffs responded to Turner's declaration in their reply, filed June 29, 2017, and have had the opportunity to fully brief the mootness issue. Further, the Court had already ordered Plaintiffs to show cause on the mootness issue prior to receiving Defendants' amended opposition. Thus, the Court finds no prejudice to Plaintiffs in considering Defendants' amended opposition and the attachments thereto.[22]

         The Court declines to reconsider this finding. Plaintiffs do not dispute that Hirt received the July 14, 2017 letter upon which the Court's mootness ruling is based, and Plaintiffs had an opportunity to fully brief the mootness issue prior to the Court's ruling-as evidenced by the fact that the mootness arguments they make in their motion for reconsideration are not meaningfully different from those they set forth in their response to the Court's show cause order almost six months ago. The Court therefore finds that it did not commit clear error in finding Plaintiffs' motion for a preliminary injunction moot without permitting Plaintiffs the opportunity for further argument.

         Second, Plaintiffs argue that the Court's mootness finding was based on “an errant inference (insufficient evidence) which lead to an errant, necessarily implied, finding of fact.”[23]Plaintiffs complain that the Court must have impermissibly inferred that following Turner's letter: (1) Plaintiffs are no longer subject to any restrictions; (2) Plaintiffs are no longer subject to any restrictions from which they sought relief; or (3) if any restrictions remain in place, they are not based on Defendants' “socially acceptable manner” policy. Plaintiffs argue at length about due process and the lack of evidence to support “various factual conclusions necessary for the court to make the conclusion of law that the motion was moot.”[24] The Court has not misperceived the facts at issue here. ...


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