United States District Court, D. Kansas
PHILLIP W. HOKE, et al., Plaintiffs,
HERBERT J. SWENDER, et al., Defendants.
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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.
January 2017 In-Service Meeting
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.
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.
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.
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.
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. 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.
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.
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.
August 2017 and January 2018 In-Service Meetings
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.
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.
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.
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
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).
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.
Swender is entitled to qualified immunity on Plaintiffs'
First Amendmentretaliation claim, but GCCC