United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE
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. 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
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.
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.
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.
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.
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 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.
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.
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. 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.
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.
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.
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.
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; (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.
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.