Moore v. Birmingham Public Library

Filing 53

MEMORANDUM OPINION AND ORDER: As set out in order, Mr. Moore failed to establish a claim under the First or Fourteenth Amendments. Therefore, the Birmingham Library's motion for summary judgment is GRANTED, and Mr. Moore's motion is DENIED. This case is DISMISSED with prejudice. Signed by Judge Abdul K Kallon on 04/09/13. (CVA)

FILED
2013 Apr-09 PM 02:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEROY JUNIOR MOORE,
Plaintiff,
vs.
BIRMINGHAM PUBLIC
LIBRARY,
Defendant.

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Civil Action Number
2:12-cv-2517-AKK

MEMORANDUM OPINION AND ORDER
Leroy Junior Moore filed this action pro se against the Birmingham Library
(“the Library”) alleging what the court construes as a violation of his freedom of
speech and due process rights under the First and Fourteenth Amendments. See
docs. 1 and 44. Basically, Mr. Moore contends that the Library expelled him from
its premises without just cause and/or because it concluded falsely that Mr. Moore
distributed religious materials to its employees and patrons. Docs. 44, 45. The
Library has moved for summary judgment contending that it expelled Mr. Moore
because Mr. Moore purportedly engaged in disruptive behavior, in part, by
sexually harassing its employees. Doc. 40. Mr. Moore also subsequently filed a
cross motion for summary judgment, doc. 44, albeit 22 days after the court’s
deadline, see doc. 37, contending that the Library had no legitimate basis to ban
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him from its premises. Both motions are fully briefed, docs. 41, 45, 47, 50-52,
and, after carefully reviewing the contentions in this case, unfortunately for Mr.
Moore, he has presented no evidence to support his claims. Accordingly, for the
reasons set forth below, the court GRANTS the Library’s motion, DENIES Mr.
Moore’s motion, and DISMISSES Mr. Moore’s lawsuit.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper
“if the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). “Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the pleadings” to establish that
there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation
marks omitted). A dispute about a material fact is genuine “if the evidence is such
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that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe the
evidence and all reasonable inferences arising from it in the light most favorable to
the non-moving party. Id. However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald
Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,1563 (11th Cir. 1989)).
II. FACTUAL BACKGROUND
Mr. Moore regularly patronized the Birmingham Library’s main branch
located at 2100 Park Place, Birmingham, Alabama. Doc. 41 at 17. On or about
May 2, 2011, a Library employee, Jiemin Fan, filed a harassment complaint
against Mr. Moore alleging that, over the prior six months or more, Mr. Moore had
regularly passed her notes expressing his interest in knowing her personally and
asking her out on a date. Id. at 21. Fan also stated that Mr. Moore called the
Library on several occasions asking to speak to her and that he engaged her in
inappropriate conversations. Id. Fan told Mr. Moore she was flattered but that she
was not interested and that he needed to stop. Id. According to Fan, Mr. Moore
interfered with her ability to work, and that of her coworkers. Id. Mr. Moore
denies engaging in this alleged conduct. Docs. 1-1 at 1; 44 at 3.
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Another Library employee, Mary Branch, also filed a harassment complaint
against Mr. Moore on May 3, 2011. Doc. 41 at 23. Branch stated that Mr. Moore
continuously asked her to deliver notes to Fan, that she read one note which asked
Fan to go out for coffee, and that Mr. Moore called the Library impersonating a
woman and asking to speak to Fan. Id. at 24. Branch stated that Mr. Moore’s
behavior “has become annoying to everyone who works in [the] ALS
[Department].” Id. Moreover, Branch added that Mr. Moore told another Library
employee that he was “on the offender’s list and that his missing teeth were
knocked out in a fight with a woman.” Id. Finally, Branch stated that Mr.
Moore’s “behavior has made us uncomfortable.” Id. Mr. Moore also denies
engaging in this alleged conduct. Docs. 1-1 at 1; 44 at 3.
After Library Chief Security Officer Mike Lee investigated Fan’s and
Branch’s complaints, Lee informed Mr. Moore that the Library would ban Mr.
Moore from its premises if Mr. Moore continued to disturb the Library’s
employees and patrons. Id. at 17. Mr. Moore apparently did not heed the warning
because Fan filed another complaint against him on June 24, 2011 when Mr.
Moore came to the Library seeking to talk to Fan and allegedly solicited another
Library patron to talk to Fan. Id. at 25. Fan stated that “[i]t is obvious that Moore
has problems. Security needs to be alerted of Moore/his issues, and take necessary
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steps to handle the matter.” Id. After investigating Fan’s complaint, on June 28,
2011, the Chief of Security banned Mr. Moore from the Library for six months for
violating the City’s sexual harassment policy by harassing employees and for
disrupting the employees and patrons use and enjoyment of the library. Id. at 18.
Thereafter, on September 21, 2011, the Chief of Security recommended that the
Library’s Director, Renee Blalock, extend the expulsion to a full year due to an
increasing number of “disturbing” phone calls Mr. Moore had allegedly made to
the Library staff. Id. Consequently, on November 8, 2011, the Library extended
Mr. Moore’s expulsion an additional three months. Id. Blalock attempted
unsuccessfully to contact Mr. Moore on November 28, 2011 to inform him that he
could return to the Library no earlier than March 27, 2012. Id.
On February 24, 2012, Mr. Moore entered the Library and allegedly began
cursing and talking loudly. Id. The Chief of Security called the police and
subsequently had Mr. Moore arrested for trespass and disruptive behavior. Id. at
18, 27. The arrest report states that Mr. Moore “was trespassed from the
Birmingham City Library after being accused of making improper advances to
employees in the Youth Department. Today [Mr. Moore] returned to the
Library[;] after being told to leave he refused, at that point he was arrested and
transported to the City Jail without incident. The advances were sexual in nature
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and [Mr. Moore] also wrote letters to the employees even after he was [banned]
from the Library.” Id. at 28. The Library contends that Mr. Moore violated its
policy prohibiting disruptive behavior towards the Library’s patrons and
employees. Id. at 18, 30. Mr. Moore denies violating the Library’s policies and
maintains that he never engaged in the alleged conduct.
III. ANALYSIS
Because Mr. Moore proceeds in this case pro se – that is, without an
attorney – the court must construe his pleadings liberally. See Alba v. Montford,
517 F.3d 1249, 1252 (11th Cir. 2008) (citation omitted). However, “this leniency
does not give a court license to serve as de facto counsel for a party, or to rewrite
an otherwise deficient pleading in order to sustain an action.” GJR Invs. v. Cnty.
of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998). Indeed, “[o]nce a pro se
litigant is in court, he is subject to the relevant laws and rules of court, including
the Federal Rules of Civil Procedure.” Smith v. Fla. Dep’t of Corr., 369 F. App’x
36, 38 (11th Cir. 2010) (citing Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989)). Critically, although pro se complaints are entitled to a liberal
interpretation by the courts, “a pro se litigant does not escape the essential burden
under summary judgment standards of establishing that there is a genuine issue as
to a fact material to his case in order to avert summary judgment.” Brown v.
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Crawford, 906 F.2d 667, 670 (11th Cir. 1990) (citations omitted).
In his pleadings and filings, Mr. Moore alleges a “violation of [his] civil
rights,”1 doc. 1-1 at 1, specifically, “Amend: #1 & Amend: #14,” doc. 44 at 1,
because he was “unlawfully arrested and expelled from a public facility without
just cause,” id., and alleges that a Library employee told him the Library banned
him because he distributed religious pamphlets, doc. 45 at 1, a charge Mr. Moore
states “cannot be sustained by video, or by witness,” doc. 44 at 2 ¶3.2 Based on
these contentions, the court construes Mr. Moore’s lawsuit as one for civil rights
claims under Section 1983 for an alleged violation of the First Amendment for
freedom of religious speech and the due process clause of the Fourteenth
Amendment.
Section 1983 creates a cause of action against persons who violate the
Constitution and federal laws while acting under state government authority:
“[e]very person who, under color of any statute, ordinance, regulation, custom, or

1

While Mr. Moore stated in his complaint that he was filing a “code 28:1343 Violation of
Civil Rights,” doc. 1-1 at 1, the court notes that 28 U.S.C. § 1343 is a jurisdictional statute that
details when the court has jurisdiction over a civil rights action. Consequently, 28 U.S.C. § 1343
is not a private right of action. However, as discussed previously, the court construes Mr.
Moore’s complaint as a Section 1983 claim.
2

Mr. Moore also raised state law claims in his summary judgment brief for defamation
and slander. See doc. 45. However, the court will not address these claims because Mr. Moore
did not raise them in his initial complaint and because the court declines to exercise supplemental
jurisdiction over those claims. See 28 U.S.C. § 1367.
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usage, of any State . . . , subjects, or causes to be subjected any citizen . . . to the
deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law . . . .” 42 U.S.C. §
1983; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002) (reiterating
that § 1983 “generally supplies a remedy for the vindication of rights secured by
federal statutes” and the Constitution); Shotz v. City of Plantation, Fla., 344 F.3d
1161, 1176 (11th Cir. 2003) (same). Because the Birmingham Library is a
“department or division” of the City of Birmingham, see doc. 41 at 16, municipal
liability under Section 1983 applies to the Library’s actions.
The court will first address Mr. Moore’s First Amendment claim and then
his due process claim.
A.

First Amendment Claim

While the First Amendment protects religious literature distribution, see e.g.
Murdock v. Pennsylvania, 319 U.S. 105 (1943), Mr. Moore seems to refute his
own free speech claim by stating that the Library “cannot. . . sustain[] by video, or
by witness” its contentions that Mr. Moore distributed religious materials. Doc.
44 at 2. Moreover, Mr. Moore provides no actual evidence that he distributed
religious materials, and, in fact, his filings suggest that he denies doing so. The
court notes again that, “[w]hen a motion for summary judgment has been made
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properly, the nonmoving party may not rely solely on the pleadings, but by
affidavits, depositions, answers to interrogatories, and admissions must show that
there are specific facts demonstrating that there is a genuine issue for trial.”
Brown, 906 F.2d at 670 (citing Fed. R. Civ. P. 56(c), (e); and Celotex, 477 U.S. at
324). Here, Mr. Moore has simply provided no evidence that he engaged in
protected speech or to rebut the Library’s explanation that it banned him from the
Library because of his disruptive behavior, including allegedly sexually harassing
an employee, rather than for purportedly distributing religious materials. Mr.
Moore only provides unsubstantiated hearsay of an unidentified employee who
Mr. Moore claims told him that the Library banned Mr. Moore because he
purportedly distributed religious materials. See doc. 44 at 2. Unfortunately for
Mr. Moore, a party cannot rely on inadmissable hearsay to defeat summary
judgment. See McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996); Fed.
R. Evid. 802. Relatedly, Mr. Moore has also correspondingly failed to support his
own motion for summary judgment with any actual evidence. Accordingly, Mr.
Moore’s First Amendment claim fails.
B.

Due Process - Fourteenth Amendment Claim

Regarding Mr. Moore’s due process claim, he asserts that the Library
expelled him and had him arrested “without just cause” and without “further
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investigating the allegations against [him].” Doc. 44 at 1, 3. However, again, Mr.
Moore fails to provide any actual evidence to support this claim. In contrast, the
Library has presented evidence that it expelled Mr. Moore because its
investigation concluded that it had a credible basis to believe the complaints that
Mr. Moore sexually harassed an employee and disrupted Library employees and
patrons. See doc. 41. Indeed, the evidence shows that two employees reported
Mr. Moore for writing notes to Fan asking her out and alleged also that Mr. Moore
disguised his voice to sound like a woman when he called on multiple occasions to
ask for Fan. See id. at 24. The evidence also included allegations that Mr. Moore
made “disturbing” calls to the Library’s staff. See id. at 18. While Mr. Moore
denies these allegations, the truth or falsity of these allegations is irrelevant for
this court’s analysis. Rather, as the Eleventh Circuit aptly put it, “[w]e can assume
for purposes of this opinion that the complaining employees interviewed by. . .
[The Library] were lying through their teeth.” Elrod v. Sears, Roebuck & Co., 939
F.2d 1466, 1470 (11th Cir. 1991). The relevant inquiry instead is whether the
Library had a reasonable basis to believe the allegations against Mr. Moore. Id.
Given the complaints against Mr. Moore by Fan and Branch and the multiple
employees who witnessed Mr. Moore’s February 24, 2012 outburst, the court finds
that the Library has presented substantial evidence to support its conclusion that it
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had a reasonable basis to ban Mr. Moore from its premises. Ultimately, Mr.
Moore failed to present any credible evidence to show that the Library acted
unreasonably when it credited the allegations against him. Instead, Mr. Moore
simply makes conclusory accusations in his summary judgment briefs. But, as the
court stated previously, without more, his claims fail.
Moreover, Mr. Moore’s claims fail because it is settled law that
municipalities cannot be held liable on a respondeat superior theory under Section
1983. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690-91 (1978); see
also Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 166 (1993). In other words, a municipality is responsible for its
own acts but not the acts of its employees. Pembaur v. City of Cincinnati, 475
U.S. 469, 478-79 (1986). Thus, a municipality is liable only “when execution of a
government’s policy or custom . . . inflicts the injury.” Monell, 436 U.S. at 694.
Mr. Moore has presented no evidence that the Library’s policies prohibiting
sexual harassment or disruptive behavior inflicted unreasonable discriminatory
injury upon him. Rather, the evidence presented shows that the Library acted
justifiably in enforcing its policies against Mr. Moore. Indeed, as the Library
pointed out, the Supreme Court found that “[a] State or its instrumentality may, of
course, regulate the use of its libraries or other public facilities. But it must do so
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in a reasonable and nondiscriminatory manner, equally applicable to all and
administered with equality to all. It may not do so as to some and not as to all.”
Brown v. State of La., 383 U.S. 131, 143 (1966). Based on the evidence before
this court, the Library acted reasonably and in a non-discriminatory manner.
Accordingly, in light of Mr. Moore’s failure to support his claims, the Library’s
motion for summary judgment is GRANTED.

IV. CONCLUSION
Based on the foregoing reasons, Mr. Moore failed to establish a claim under
the First or Fourteenth Amendments. Therefore, the Birmingham Library’s motion
for summary judgment is GRANTED, and Mr. Moore’s motion is DENIED. This
case is DISMISSED with prejudice.

DONE the 9th day of April, 2013.
________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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