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Leichty v. Bethel College

United States District Court, D. Kansas

October 28, 2019

BRUCE LEICHTY, Plaintiff,
v.
BETHEL COLLEGE; MENNONITE CHURCH USA; CITY OF NORTH NEWTON, KANSAS; JOHN THIESEN;[1] and JOEL NAFZIGER, Defendants.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE

         This matter is before the court on Defendants' motions to dismiss (Docs. 24, 29, 34, 39) and Plaintiff's motion to take judicial notice (Doc. 47). The motions have been fully briefed and are ripe for decision. (Docs. 25, 30, 35, 40, 46, 48, 49, 55, 58, 59, 60, 61, 62.) For the reasons set forth herein, the City of North Newton's Motion to Dismiss (Doc. 24) is GRANTED; Bethel College and John Thiesen's Motion to Dismiss (Doc. 29) is GRANTED IN PART and DENIED IN PART; Mennonite Church, USA's Motion to Dismiss (Doc. 34) is GRANTED; Joel Nofziger's Motion to Dismiss (Doc. 39) is GRANTED; and Plaintiff's Motion for Order (Doc. 47) to take judicial notice is DENIED.

         I. Facts

         The following allegations are taken from Plaintiff's pro se complaint.[2] (Doc. 1.) Plaintiff is a resident of California and is a licensed attorney in California. In the weeks prior to March 16, 2018, Plaintiff registered for a conference titled “Mennonites and the Holocaust” sponsored by Bethel College (“Bethel”) and Mennonite Church USA (“MCUSA”). (The complaint refers to Bethel and MCUSA collectively as “Sponsors.” (Id. at 5.)) The conference was to be held on the Bethel campus in North Newton, Kansas, on March 16-17, 2018. Plaintiff was a member of a congregation affiliated with MCUSA. (Id. at 4-5.) Plaintiff's registration and registration fee of $100 were accepted and he was issued a badge and conference materials by the Sponsors. Plaintiff alleges he was thus made a licensee who was allowed to participate in the conference and to be present on campus for the duration of the conference. (Id. at 5.) Alternatively, he alleges this exchange constituted a binding contract. (Id. at 6.)

         Plaintiff invited two individuals of Jewish origin or identity to take part in in the conference with him as registrants and, “on the side, ” to make their own presentation titled “Two Jewish Revisionists Consider the Holocaust.” (Id. at 9.) Plaintiff's two guests did not pre-register for the conference. Upon the guests' arrival at the conference on March 16, the Sponsors denied a request to register them despite their willingness to pay and to forego any conference meals, and despite ample space in the lecture hall where presentations were given. The representative who denied the request, Mark Jantzen, agreed the issue could be revisited the following day in view of the fact the two individuals had traveled from (respectively) New York and Michigan. Plaintiff's guests were excluded from some conference events on March 16, although they attended certain sessions open to the public. (Id. at 9.)

         The Sponsors prevented Plaintiff from handing out flyers, pamphlets, or books in the foyer outside the lecture hall where the conference sessions were to be held. The flyers contained information about the off-campus presentation by Plaintiff's guests. No rules had previously been given to registrants prohibiting the distribution of materials to other registrants. When Plaintiff was confronted by the Sponsors about distributing flyers, he “politely asserted what he regarded as his rights as a Conference registrant on a college campus.” (Id.at 10.) He was thereupon “threatened with arrest, and a law enforcement officer from the City of North Newton was called to the scene….” (Id.) Plaintiff consented to refrain from distributing materials in exchange for his ability to remain at the conference. Plaintiff missed the opening remarks of the conference while this occurred. During those remarks, a Sponsor representative, John Thiesen, allegedly told registrants that a “Holocaust denier” (referring to Plaintiff) was present who might disrupt the conference. (Id. at 11.)

         Plaintiff alleges he is “not a ‘Holocaust denier, '” although he has “identified himself with revisionist views on the Holocaust….” (Id.) He has never claimed “that the pejorative label ‘Holocaust denier' accurately describes him or that it accounts for the complexity or nuances of his historical views….” (Id.) Plaintiff considers the term a slur “since it implies both that there is incontrovertible evidence for the extermination by German authorities of six million noncombatant Jews (and others) during World War II and that Plaintiff is minimizing the suffering and death of those victims of war.” (Id. at 12.)

         Plaintiff attended the remainder of the morning sessions without incident. At the last session in the afternoon, at a panel on “Mennonite Attitudes Toward the Holocaust, ” Plaintiff stood up and asked for a microphone as a question and answer session was drawing to a close. Plaintiff was given a microphone and was reminded to “keep his comments on point.” (Id. at 13.) Plaintiff said that, “just as there are different Mennonite attitudes toward the Holocaust, there are also different Jewish attitudes toward the Holocaust, ” and began announcing that registrants could hear a revisionist Jewish perspective on the Holocaust at a nearby location that evening. (Id.) Jantzen, the session moderator, angrily interrupted and called for Plaintiff's microphone to be cut off. Jantzen then “charged up the aisle” and called the police on his mobile phone. Plaintiff's microphone was cut off and he completed his announcement amidst shouts and jeers. Jantzen announced that the session had ended. (Id. at 12-13.)

         With the session ended, Plaintiff began to leave the room. He was approached by a representative of MCUSA, John Sharp. He and Sharp agreed to meet at lunch the next day to discuss Plaintiff's agenda and concerns. (Id. at 13.)

         As Plaintiff was exiting the parking lot, he “had an amicable exchange” with North Newton Police Chief Randy Jordan as Jordan drove into the lot. (Id. at 14.) Both individuals were in their vehicles with the windows rolled down. Plaintiff told Jordan he was leaving the campus and was on his way to set up the community room in North Newton, adjacent to the police station, for the event he would be moderating that evening. Jordan was aware of the event. Plaintiff alleges that at no time on March 16 was he ordered not to return to campus or told his license to be present on campus for the conference was terminated. (Id.)

         Plaintiff and his guests thereafter conversed with Chief Jordan at the North Newton community room. After Plaintiff moderated a presentation by his two guests at the community room, Plaintiff and one of his guests returned to the campus for the conference's evening event, which was a film open to the public. After the event, Plaintiff spoke with Jantzen about whether the Sponsors would allow his guests to register for and attend the session the next day. Jantzen allegedly said, “Not only will they not be allowed to register, you are also out of the conference.” (Id. at 14-15.) Plaintiff told Jantzen that he (Plaintiff) was a paid registrant and had a right to attend the conference.

         Plaintiff alleges that at no time did Jantzen or anyone else tell him he was ordered not to return to campus or specify that he “was being prohibited from returning to the campus as distinguished from the Conference.” (Id. at 16.) He also alleges that at no time did Jantzen or anyone else revoke “the invitation to Plaintiff from Sponsors' representative John Sharp” to meet for lunch on March 17. (Id.)

         The next morning, March 17, 2018, Plaintiff went to the North Newton police station “to seek clarification of his prospective status.” (Id.at 16-17.) He told the officer on duty, Officer Stovall, what had happened and sought assurance that he would not be arrested if he attempted to assert his right to remain at the conference. Stovall told him that if college officials called the police, Plaintiff would not be arrested at that point, but if the officials ordered him off campus, he would be given the opportunity to leave upon penalty of arrest if he returned. (Id. at 17.)

         Stovall was called by the Sponsors later that morning “to execute an arrest of Plaintiff.” (Id. at 18.) On campus, Stovall “accused Plaintiff of not giving him all the facts and stated that he now found out that Plaintiff had already been ‘trespassed' the previous day….” (Id.) Stovall did not contact Chief Jordan to determine whether he knew if Plaintiff had been ordered not to return to campus. Stovall arrested Plaintiff. (Id.) Plaintiff was hand-cuffed with his hands behind his back and placed in a patrol car. Plaintiff alleges the Sponsors or their representatives “gave false testimony and defamatory information” to Stovall prior to the arrest, “namely that Plaintiff had appeared on campus that morning in defiance of a prior warning issued to him on March 16 that he would be trespassing if he did.” (Id. at 19.)

         As a consequence of his arrest, Plaintiff was detained in a holding cell at the Harvey County Detention Center for 18 hours. He was fingerprinted and photographed. After his release, Plaintiff allegedly confirmed with Chief Jordan that Jordan “had not ‘trespassed'” him on March 16 and that Jordan was not aware of any trespass warning by Bethel on that date. (Id. at 20.) On April 19, 2018, Plaintiff was informed by a City of North Newton prosecutor that he would not be prosecuted for any offense. (Id.) Plaintiff rejected and refused to endorse a $100 check sent to him by Bethel after the conference. (Id. at 21.)

         After the conference, statements about Plaintiff appeared on the worldwide web on a website of the Anabaptist Historians, operated by Joel Nofziger with the sponsorship of the Lancaster Mennonite Historical Society (“LMHS”). (Doc. 1 at 12.) Nofziger had been present at the conference. Nofziger and LMHS published on the website “the following false and defamatory statements of one Lisa Schirch” that: “A Mennonite Holocaust denier, Bruce Leichty, attended parts of the conference”; “Leichty has passed out anti-Semitic literature at Mennonite Church USA gatherings”; and “When Leichty began to ask an offensive question during the conference, the organizers removed him by calling campus security….” (Id.) Nofziger refused Plaintiff's demand that he be allowed equal space on the website to rebut the statements, and thereby allegedly adopted the statements of Schirch as his own. (Id. at 22.)

         Plaintiff asserts claims against one or more Defendants for the following: breach of contract, false arrest, false imprisonment, defamation, infliction of emotional distress, and a claim under 42 U.S.C. § 1983 for deprivation of civil rights.

         II. Motion to Dismiss Standard

         In order to withstand a motion to dismiss for failure to state a claim, a complaint must contain enough allegations of fact to state a claim to relief that is plausible on its face. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007)). All well-pleaded facts and the reasonable inferences derived from those facts are viewed in the light most favorable to Plaintiff. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations, however, have no bearing upon the court's consideration. Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007). Rule 12(b)(6) “does not require that Plaintiff establish a prima facie case in her complaint, but rather requires only that the Plaintiff allege enough factual allegations in the complaint to set forth a plausible claim.” Pueblo of Jemez v. United States, 790 F.3d 1143, 1171-72 (10th Cir. 2015) (internal citations omitted). In the end, the issue is not whether Plaintiff will ultimately prevail, but whether Plaintiff is entitled to offer evidence to support his claims. Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005).

         III. Analysis

         1. City of North Newton Motion to Dismiss (Doc. 24.)

         The complaint asserts a tort claim against North Newton for false arrest and false imprisonment under Kansas law (Count 4), and a claim for deprivation of civil rights under 42 U.S.C. § 1983 (Count 10).

         a. Count 4 - false arrest and imprisonment.

         North Newton moves to dismiss this claim based on Plaintiff's failure to satisfy the notice-of-claim requirements of K.S.A. 12-105b. (Doc. 25 at 4.) Plaintiff admits he did not submit a notice of his claim with North Newton before filing suit and has not satisfied the requirements of 12-105b. (Doc. 46 at 7-8.) Nevertheless, he submitted a notice of claim on July 17, 2019, and argues “the error is or should be non-fatal.” (Doc. 46 at 6.) Plaintiff asserts “that nothing in federal law supports or requires dismissal of his claim under the Kansas Tort Claims Act for his error.” (Id. at 8.)

         The court finds Count 4 must be dismissed based on Plaintiff's failure to satisfy K.S.A. 12-105b. Section 12-105(d) provides in part that any person having a claim against a municipality which could give rise to a claim under the Kansas Tort Claims Act (KTCA) must file the notice required by that section before commencing an action in court. Once the notice is filed, “no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first.” Id. Plaintiff's response effectively concedes his claim is subject to the KTCA[3] and that North Newton has not yet administratively denied the notice he filed on July 17, 2019. (Doc. 46 at 7-8.) Nor has 120 days passed from the filing of his notice. In such circumstances, section 12-105b(d) provides that “no action shall be commenced….”

         Plaintiff argues dismissal of his claim is “draconian” and that the failure to comply with K.S.A. 12-105b “is not a jurisdictional failure as might be the case if he were litigating in state court.” (Doc. 46 at 8.) He argues that Lincoln v. BNSF Rwy. Co., 900 F.3d 1166 (10th Cir. 2018), which held a failure to exhaust administrative remedies on a Title VII claim did not deprive a federal district court of subject matter jurisdiction, should be applied with respect to K.S.A. 12-105b. This argument is untenable. Count 4 alleges a false arrest and false imprisonment claim under Kansas common law; it is not governed by federal exhaustion rules. “[W]hen a federal court exercises diversity or pendent jurisdiction over state-law claims, ‘the outcome of the litigation in federal court should be substantially the same, so far as legal rules determine the outcome of the litigation, as it would be if tried in a State court.'” Felder v. Casey, 487 U.S. 131, 151 (1988) (citation omitted.) Accordingly, federal courts entertaining state law claims are obligated to apply state notice-of-claim provisions. Id. The claim in Count 4 is governed by Kansas law, which requires dismissal of the claim for failure to satisfy section 12-105b. See Whaley v. Sharp, 301 Kan. 192, 197, 343 P.3d 63, 67 (2014) (“Compliance with … 12-105b(d) is required before a court has subject matter jurisdiction over a tort claim against a municipality.”); Lara v. Unif. Sch. Dist. No. 501, 350 Fed.Appx. 280, 284-85 (10th Cir. 2009) (compliance with 12-105b is mandatory; affirming dismissal of complaint for failure to satisfy that provision.)

         b. Count 10 - violation of civil rights under section 1983.

         Count 10 alleges that North Newton is liable under § 1983 because the city deprived Plaintiff of “his constitutionally guaranteed right of liberty” by subjecting him to false arrest and false imprisonment, under color of state law, on March 17, 2018. (Doc. 1 at 41.) North Newton argues this count fails to state a valid claim for relief under § 1983 because it does not allege that any municipal policy or custom was the moving force behind the violation. (Doc. 25 at 8.)

         Section 1983 provides a remedy against any person who, acting under color of state law, deprives an individual of a right secured by the Constitution and laws of the United States. 42 U.S.C. § 1983. But a local government “may not be sued under § 1983 for an injury inflicted solely by its employees or agent.” Waller v. City and Cty. of Denver, ___F.3d___, 2019 WL 3543115, *3 (10th Cir. Aug. 5, 2019) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)). “[I]n other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id. (quoting Monell, 436 U.S. at 691). Rather, the government may only be held liable “when execution of a ...


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