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Hoke v. Swender

United States District Court, D. Kansas

October 18, 2019

PHILLIP W. HOKE, et al., Plaintiffs,
HERBERT J. SWENDER, et al., Defendants.



         Plaintiffs Phillip Hoke, Sheena Hernandez, Holly Chandler, Mica Jade Koksal, Daniel Reyes, and Jean Ferguson have filed suit under 42 U.S.C. § 1983 against Defendant Herbert Swender in his individual and official capacities, and against Garden City Community College (“GCCC”). Plaintiffs allege violations of the First Amendment for infringement of speech and establishment of religion and of the Fourth Amendment for unlawful search and seizure. Defendants move for judgment on the pleadings under Federal Rule of Civil Procedure 12(c).

         For the reasons stated below, the Court finds that Swender is entitled to qualified immunity on Plaintiffs' First Amendment retaliation claim, Fourth Amendment search claim, and First Amendment establishment claim because Plaintiffs have not established that Swender violated a clearly established constitutional right. The First Amendment retaliation claim against GCCC survives under Monell. But Plaintiffs' First Amendment retaliation claim against Swender in his official capacity is dismissed as duplicative of the claim against GCCC.

         The surviving claims from the complaint are Plaintiffs' First Amendment prior-restraint claim against both Defendants and their Fourth Amendment seizure claim against Swender (because Defendants have not challenged these claims in the motion to dismiss), and Plaintiffs' First Amendment retaliation claim against GCCC.

         I. BACKGROUND

         The following facts are taken from the well-pleaded allegations of the complaint, Doc. 1, and, consistent with the standards for evaluating motions to dismiss under Rule 12(c), the Court assumes the truth of these facts for purposes of analyzing the motion to dismiss.

         Plaintiffs are or were employed by GCCC. All but Koksal (who is no longer with GCCC) and Reyes are tenured instructors. Doc. 1 at 3-4. Swender was president of GCCC from August 2011 until August 2018. Id. at 4. GCCC is a state educational entity located in Garden City, Kansas. Id. at 5. GCCC employs 250 full-time and 150 part-time employees. Id. at 6.

         At the start of each semester, GCCC requires its faculty and staff to attend an all-day, in-service meeting presided over by the president. Id. at 7. The meetings are open to members of the public, including the news media. Id.

         A. January 2017 In-Service Meeting

         All Plaintiffs, along with 250 other faculty and staff and several community members, attended the in-service meeting in January 2017. Id. The morning session included a Protestant prayer by Nathan Sheridan, whom the agenda identified as being affiliated with the First Assembly of God Church. Id. A faculty or staff member gave a Protestant prayer before lunch. Id. at 9.

         During the morning session, Swender also informed all in attendance that they would be hearing some “disturbing news” about GCCC's accreditation. Id. at 7. GCCC's continued existence is dependent on it being an accredited institution. Id. at 8. Swender did not say what the news was but indicated that he disagreed with it. Id. In June 2017-approximately six months later-an accrediting organization placed GCCC on probation. Id.

         Following Swender's announcement regarding the anticipated “disturbing news, ” someone in the audience of approximately 250 people-but not any Plaintiff-recorded Swender's comments and sent them to a news outlet. Id. at 8, 15. The news outlet reached out to GCCC for comment shortly after the morning session broke for lunch. Id. at 9.

         During lunch, Hoke and Swender met at the dessert table. Id. Swender appeared to be upset. Id. Swender “took” Hoke's cell phone without explanation, “opened it, looked at the open phone and then returned it” to Hoke. Id. Swender then asked Hoke if they were friends, and Hoke said they were. Id.

         Swender then went to the podium, instructed all non-GCCC employees to leave, and ordered that the doors be closed. Id. Swender “then ordered the employees, again without explanation of his purpose, to unlock their phones and give them to the person on their right.” Id. Of the six named Plaintiffs, only Hoke, Chandler, Koksal, and Reyes complied “out of fear that [Swender] would retaliate against them if they did not.” Id.[1] For the next several minutes, Swender “castigated” those in attendance and threatened them with retaliation on the assumption that someone present had been the person who told the media about Swender's comments about accreditation. Id. at 10. In particular, Swender reprimanded those present for communicating with the press without clearance from GCCC. Id. GCCC has a policy that states: “All news releases, photographs or public service announcements, and news media contacts, concerning GCCC events, students or programs should be issued or cleared by the Director of Marketing Public Relations; or in the case of athletic programs, by the Director of Athletics.” Id. Swender's remarks were angry and he promised that “disloyalty would carry a cost” and “that the person responsible ‘would pay.'” Id. Plaintiffs alleged that they “were coerced to remain in the room because of [Swender's] threats, which were real and menacing, knowing his reputation of vindictiveness toward employees who he felt were disloyal.” Id. at 11.

         After these remarks, Swender ordered “everyone to inspect the phones they had been given to determine the identity of the source, ” and then instructed that he be told who contacted the media. Id. The phones at issue were private phones, not GCCC-issued phones. Id.

         Over the course of the next year, Swender punished Plaintiffs and other GCCC faculty and staff by requiring them to do unnecessary paperwork regarding accreditation, sometimes throwing away work product and ordering them to redo it without explanation. Id. at 12.

         B. August 2017 and January 2018 In-Service Meetings

         GCCC held additional mandatory in-service meetings in August 2017 and January 2018. Id. at 13. At both meetings, Sheridan again led Protestant prayers. Id. At the January 2018 in-service meeting, Swender declared Sheridan to be the “College's Pastor.” Id. During the course of his time as GCCC president, Swender arranged for only Protestant prayers at in-service meetings. Id. At the January 2018 meeting, another Protestant pastor (Ricky Griffin) gave a talk “providing Protestant witness to his life and his founding of a successful church in Texas.” Id. Griffin closed his talk with a Protestant prayer. Id.

         C. Lawsuit

         Plaintiffs filed this lawsuit asserting three claims. The first claim is against both GCCC and Swender in his individual and official capacities. Id. at 14-15. It alleges a First Amendment violation for infringement of speech and expression based on the alleged protected constitutional activity of disseminating Swender's remarks to the media-though by someone other than Plaintiffs. Id.

         The second claim alleges an unlawful Fourth Amendment seizure as to Plaintiffs and an unlawful search as to Hoke, Koksal, and Reyes. The Fourth Amendment claim is only against Swender in his individual capacity. Id. at 16-17. Plaintiffs allege a seizure occurred when Swender ordered the doors closed and locked at the January 2017 in-service meeting, and that Swender ordered an unlawful search of Hoke's, Koksal's, and Reyes's phones by their colleagues. Id.

         In the third count, Plaintiffs allege unconstitutional establishment of religion by Swender in his individual capacity. Id. at 18. This stems from the repeated inclusion of Protestant prayers at mandatory in-service meetings in 2017 and 2018, Griffin's testimonial talk, and Swender's declaration that Sheridan was the “College's Pastor.” Id.

         II. STANDARD

         Defendants move for judgment on the pleadings under Rule 12(c). The Court evaluates motions under Rule 12(c) using the same standard that applies to motions for failure to state a claim under Rule 12(b)(6). Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir. 2003).

         Under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, 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)). In undertaking this analysis, the Court accepts as true all well-pleaded allegations in the complaint, though it need not accept legal conclusions. Id. Likewise, conclusory statements are not entitled to the presumption of truth. Id. at 679. A claim is plausible if it is supported by sufficient factual content to allow a court to make a reasonable inference that the defendant is liable. Id. The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully, ” but it “is not akin to a ‘probability requirement.'” Id. at 678. A complaint containing factual content that is merely consistent with liability fails to establish plausibility. Id.

         III. ANALYSIS

         A. Swender is entitled to qualified immunity on Plaintiffs' First Amendmentretaliation claim, but GCCC ...

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