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Hirt v. Unified School District No. 287

United States District Court, D. Kansas

December 4, 2018

GENE HIRT, et al., Plaintiffs,
v.
UNIFIED SCHOOL DISTRICT NO. 287, et al., Defendants.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER UNITED STATES DISTRICT JUDGE

         Pro se Plaintiffs Gene Hirt and Eric Clark bring this action pursuant to 42 U.S.C. § 1983 (2012) for Defendants' alleged violation of their constitutional rights under the First, Fifth and Fourteenth Amendments in connection with a July 13, 2015 letter banning Plaintiff Hirt from entering school district property for any reason, under any circumstance.[1] Plaintiffs seek partial summary judgment on Plaintiff Hirt's First-Amendment-based and Fourteenth-Amendment-based claims under Counts I and II of the operative complaint and Plaintiff Clark's First-Amendment-based claims under Count V. Plaintiffs also seek issuance of a permanent injunction. Because Plaintiffs' motion relies on disputed facts, the Court denies partial summary judgment with respect to Counts I, II, and V. Similarly, the necessity of a jury trial on Plaintiffs' legal claims on the instant record also prevents the Court from ruling on Plaintiffs' request for equitable relief in the form of a permanent injunction. Plaintiffs' request for a permanent injunction by way of motion for partial summary judgment is, therefore, also denied.

         I. BACKGROUND [2]

         Within the last decade, both Plaintiffs Hirt and Clark have resided within the area served by the Unified School District No. 287 ("Defendant USD 287"). Doc. 113 at 2; Doc. 117 at 3. Defendant Jerry Turner ("Defendant Turner") serves as Superintendent of Schools for Defendant USD 287. Doc. 113 at 1; Doc. 117 at 1.

         Defendant USD 287 holds monthly school board meetings where it conducts school board business and invites the public to attend. Doc. 117 at 7-8; Doc. 133 at 1-3. School board policy requires Defendant USD 287 to allow the public "limited time to voice opinions or problems" during these monthly meetings. Doc. 117 at 7-8; Doc. 133 at 1-3. The same policy that requires the school board to allow for public comment recognizes the need to conduct school board business "in an orderly and efficient manner and . . . therefore require[s] reasonable controls to regulate public presentations." Doc. 117 at 7-8; Doc. 133 at 1-3. To effectuate this policy, Defendant USD 287 has established what is known as the "patron forum" at the beginning of each meeting. Doc. 117 at 7; Doc. 133 at 1. Members of the public are allowed three minutes to speak but must first be recognized by the school board president. Doc. 117 at 7-8; Doc. 133 at 1-3.

         There is no dispute that Plaintiffs Hirt and Clark have both attended at least some of Defendant USD 287's monthly school board meetings. Doc. 117 at 2-3; Doc. 117 at 2-9; Doc. 133 at 2. Plaintiff Hirt has attended and spoken during the patron forum of numerous school board meetings. Doc. 117 at 2-3; Doc. 117 at 2-9; Doc. 133 at 2. Plaintiff Clark has attended and spoken during the patron forum of at least three school board meetings. Doc. 117 at 2-3; Doc. 117 at 2-9; Doc. 133 at 2. Plaintiffs Hirt and Clark have attended at least two of the same school board meetings. Doc. 117 at 2-3; Doc. 117 at 2-9; Doc. 133 at 2. The lawsuit centers on Defendants' response to Plaintiff Hirt's alleged conduct during these school board meetings and alleged unauthorized visits to Defendant USD 287's property at times outside of school board meetings. Plaintiff Clark's claims are, in large part, based on his alleged impressions of-and reactions to- Defendants' response to Plaintiff Hirt's admitted and alleged conduct.

         There is no dispute that Plaintiff Hirt addressed the school board from the audience outside the patron forum of school board meetings without permission and the school board president reprimanded him for his behavior. Doc. 117 at 7; Doc. 133 at 2. Plaintiff Hirt also used profanity during school board meetings when he became frustrated over certain issues, mumbling the words "sons of bitches" on at least a "couple" of occasions. Doc. 117 at 7; Doc. 133 at 2. This concerning behavior culminated in an incident following a school board meeting on June 8, 2015, when Defendants allege Plaintiff Hirt approached Defendant Turner, moved within inches of his face, began to yell in a "menacing" tone, and threatened to "get" Defendant Turner if the school board changed the names of certain schools. Doc. 117 at 8. Plaintiffs controvert these facts and allege Defendant Turner approached Plaintiff Hirt while Plaintiff Hirt was carrying on a private conversation about the name-change issue with an out-going school board member. Doc. 113 at 8. Plaintiffs admit Plaintiff Hirt was angry but contend Plaintiff Hirt only called Defendant Turner a "dork" and was two to three feet away from Defendant Turner during the interaction. Id.

         Following the July 8, 2015 school board meeting, on July 13, 2015, Defendant Turner- with the full authority of Defendant USD 287-sent a letter to Plaintiff Hirt informing Plaintiff Hirt that, because of his "rude and uncivil behavior following the June [8]th, 2015, USD 287 Board Meeting," Plaintiff Hirt would "no longer be allowed on USD 287 property for any reason or under any circumstance." Doc. 93-1 at 1; Doc. 113 at 1; Doc. 117 at 2. The letter also notified Plaintiff Hirt that Defendant Turner provided a copy to the Sheriffs Office in Franklin County, Kansas, and, if Plaintiff Hirt was found on Defendant USD 287's property thereafter, the Sheriff would be notified and asked to remove Plaintiff Hirt. Id.

         Defendants contend the July 13, 2015 letter banning Plaintiff Hirt from Defendant USD 287's property was precipitated not only by the alleged incident following the June 8, 2015 school board meeting and Plaintiff Hirt's behavior at prior school board meetings, but also prior conduct by Plaintiff Hirt while on Defendant USD 287's property. On February 26, 2015, Plaintiff Hirt allegedly entered an elementary school classroom during school hours despite having no children, grandchildren, or family members who attend Defendant USD 287's schools. Doc. 117 at 6-7. On March 25, 2015, Plaintiff Hirt brought a photographer to an elementary school during school hours to take photographs and staff directed him outside the building. Doc. 117 at 6-7. On April 2, 2015, Plaintiff Hirt allegedly returned to the same elementary school, was denied access to the building, and spoke harsh words to the principal. Doc. 117 at 7. Defendants allege the staff relayed to Defendant Turner that they were concerned for their safety that day. Id. Defendants also allege that, between February 4, 2015 and June 29, 2015, witnesses observed Plaintiff Hirt driving through school parking lots during school hours on at least sixteen occasions. Doc. 117 at 6. Plaintiff Hirt does not do any business with Defendant USD 287 to justify these visits to USD 287 property. Doc. 117 at 8. Plaintiffs controvert almost all of these facts on either factual or legal grounds. Doc. 133 at 1-2.

         Plaintiff Clark became aware of the July 13, 2015 letter Defendants sent to Plaintiff Hirt after reading quotes from the letter published in The Ottawa Herald newspaper.[3] Doc. 113 at 2-3; Doc. 117 at 3. Plaintiff Clark attended a school board meeting, on August 12, 2015, after reading the article in the newspaper. Doc. 117 at 7; Doc. 133 at 2. During the meeting, Plaintiff Clark used the terms "ninnies" and "nincompoops." Doc. 117 at 9; Doc. 133 at 3. Defendants did not reprimand Plaintiff Clark despite his use of the terms "ninnies" and "nincompoops." Doc. 117 at 9; Doc. 133 at 3. Plaintiff Clark has not attended a school board meeting since August 12, 2015. Doc. 117 at 7; Doc. 133 at 2.

         On August 15, 2015, a month after receiving the July 13, 2015 letter from Defendants, Plaintiff Hirt attended an open house event at an elementary school within Defendant USD 287's borders. Doc. 113 at 2; Doc. 117 at 3. At Defendants' request, a Deputy Sheriff from the Franklin County Sheriffs Office advised Plaintiff Hirt that he needed to leave the premises and Plaintiff Hirt left. Doc. 113 at 2; Doc. 117 at 3. Plaintiff Clark also attended the open house and witnessed the Deputy Sheriff advise Plaintiff Hirt that he needed to leave. Doc. 113 at 3; Doc. 117 at 4.

         II. PROCEDURAL HISTORY

         Plaintiffs originally filed their lawsuit against seven defendants, including five school board members, but they later voluntarily dismissed the five school board members and their official-capacity claims against Defendant Turner. Docs. 1, 6, 49. Plaintiffs' remaining claims are those against Defendant USD 287 and their individual capacity claims against Defendant Turner. Doc. 93. The operative complaint includes eleven causes of action, including Counts I, II, and V, which are the subject of Plaintiffs' instant motion.

         After initially filing suit, Plaintiffs sought a preliminary injunction to enjoin Defendants from taking "adverse action against Plaintiff Hirt based upon the July 13, 2015 letter" and from enforcing the "ad hoc policy" requiring them to express themselves in a "socially acceptable manner" at school board meetings. Doc. 4 at 11. During the preliminary injunction briefing, Defendant Turner mailed Plaintiff Hirt a letter on June 14, 2017, which permitted Plaintiff Hirt to attend any meeting or event on Defendant USD 287's property to which the public is invited, so long as Plaintiff Hirt "refrain[s] from disruptive behavior" and "limit[s] [his] participation in the meetings to the allotted three minutes for public comments." Doc. 20-3. As a result, the Court denied Plaintiffs' motion for injunctive relief. Doc. 41. Plaintiffs sought reconsideration of the Court's order, which the Court denied. Doc. 62.

         On May 29, 2018, Plaintiffs filed their instant motion seeking partial summary judgment on three issues: (1) the liability determination for violation of Plaintiff Hirt's First Amendment and due process rights under Counts I and II, limited to the theories that (a) the July 13, 2015 letter is an unconstitutional categorical ban on Plaintiff Hirt's free speech rights; and (b) the categorical ban was issued absent due process;[4] (2) the liability determination for violation of Plaintiff Clark's First Amendment rights under Count V; and (3) the need for a permanent injunction enjoining Defendant USD 287 from enforcing its "socially acceptable manner" restriction. See generally Doc. 112. Defendants submitted their opposition on July 10, 2018, arguing Plaintiffs' motion "misreads the applicable law, relies on disputed evidence and should be denied." Doc. 117 at 1. Plaintiffs filed their reply on August 6, 2018. Doc. 133. Though ripe for decision, the Court agrees with Defendants that Plaintiffs' motion relies on disputed evidence and should be denied.

         III. STANDARD

         Summary judgment is appropriate if "the record, including depositions, documents, . . . affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials" establishes that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (quoting prior version of Rule 56). The moving party bears the initial burden to establish the absence of a genuine issue of fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to demonstrate that genuine issues remain for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To carry this burden, the nonmovant "may not rely merely on . . . its own pleadings." Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) (internal quotations and citations omitted). "Rather, it must come forward with facts supported by competent evidence." Id. The inquiry turns on "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52. In applying this standard, courts must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmovant. Matsushita, 475 U.S. at 587.

         IV. ...


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