Dozier v. Houle et al

Filing 45

CONSENT ORDER signed by Judge Frank C. Damrell, Jr on 01/23/09 GRANTING 44 Stipulation For Consent Order. Purusant to this Order, Plaintiff's First Amended Verified Complaint is DISMISSED with prejudice. CASE CLOSED. (Streeter, J)

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David J. Hacker (CA Bar No. 249272) Heather Gebelin Hacker (CA Bar No. 249273)* ADF CENTER FOR ACADEMIC FREEDOM 101 Parkshore Dr., Suite 100 Folsom, California 95630 Telephone: [phone] Facsimile: [phone] Benjamin W. Bull (AZ Bar No. 009940)** ALLIANCE DEFENSE FUND 15100 North 90th Street Scottsdale, Arizona 85260 Telephone: [phone] Facsimile: [phone] David A. French (TN Bar No. 16692)** ADF CENTER FOR ACADEMIC FREEDOM 12 Public Square Columbia, Tennessee 38401 Telephone: (931) 490­0591 Facsimile: (931) 490­7989 Timothy M. Smith (CA Bar No. 125534) MCKINLEY & SMITH A Professional Corporation 8880 Cal Center Drive, Suite 250 Sacramento, CA 95826 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA RYAN DOZIER, Plaintiff, vs. Members of the Board of Governors, Yuba Community College District: SUSAN HOULE, ALAN FLORY, JIM BUCHAN, MARK BREDT, LEELA RAI, GEORGE NICOLAU, XAVIER TAFOYA, in their official capacities; NICKI HARRINGTON, in her official and individual capacities; PAUL MENDOZA, in his official and individual capacities; KEVIN TRUTNA, in his official and individual capacities; and BYRON GREEN, in his official and individual capacities, Defendants. *Designated Counsel for Service. **Admitted Pro Hac Vice. CONSENT ORDER ) Case No.: 2:08-CV-02298-FCD ) ) CONSENT ORDER ) ) ) ) ) ) ) ) ) ) )

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Final resolution of this matter and controversy has been settled by and between the parties, and accepted by this Court, as reflected herein. Plaintiff filed his Verified Complaint on September 29, 2008, seeking injunctive, declaratory and monetary relief for the violation of his constitutional rights. Plaintiff filed a motion for Plaintiff's motion

preliminary injunction on his First Amendment claims on October 2, 2008.

challenged several of Defendants' procedures: Administrative Procedure 5550 ("Speech: Time, Place and Manner"), the Student Code of Conduct, §3 (c-d), the Police Department Free Speech and Assembly Policy, the Free Speech and Public Assembly Policy in the Safety and Parking Information Handbook, Administrative Procedure 3430 ("Prohibition of Harassment"), and the advanced

notification and permit requirements of the On-Campus Organization Application for Activities, Facilities and/or Services. These procedures are attached to this order as Exhibits 1-6. Plaintiff's motion asked the Court to enjoin these procedures. Complaint on November 5, 2008. Defendants filed their Answer to the First Amended Complaint on November 11, 2008 and deny Plaintiff's allegations and that they have any liability in this Action. In order to resolve this Action, the parties have negotiated a settlement which is memorialized in the following consent order. IT IS HEREBY ORDERED AND DECREED: 1. Defendants have agreed to change the aforementioned procedures. Revised versions of Plaintiff filed his First Amended Verified

these procedures are attached to this order as Exhibits 7-10. 2. Defendants have already implemented the attached revised procedures and have

published them to Yuba Community College District students on December 23, 2008. 3. Defendants agree not to formally adopt or enforce the challenged provisions in the old

procedures (Exs. 1-6) in the future, specifically the day and hour restrictions on free speech activities, the requirement that students and non-students apply for and receive a permit before engaging in free speech activities, provisions related to the designation of the campus as a nonpublic forum and allowing administrators unbridled discretion in designating free speech fora,

CONSENT ORDER - 2

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the registration of materials prior to distribution, and the entire former harassment policy, AP 3430. 4. In satisfaction of Plaintiff's claims for damages, Defendants agree to pay Plaintiff one

dollar ($1) in nominal damages. 5. In satisfaction of Plaintiff's claims for attorneys' fees and costs under 42 U.S.C. §1988,

Defendants agree to pay the sum of $25,000 in attorneys' fees to Plaintiff's counsel. 6. All of the aforesaid actions by Defendants in Paragraphs 4-5 shall be completed within

thirty (30) days from the entry of this Order. 7. In exchange, Plaintiff hereby agrees to withdraw his motion for preliminary injunction.

As a further condition of this Order, Plaintiff shall execute and provide to Defendants' attorneys, within ten (10) days of entry of this Order, a Release of All Claims which includes a California Civil Code Section 1542 waiver. 8. It is understood that this settlement and the consent to this Order by the Defendants are

not admissions of any liability whatsoever for any wrongdoing with respect to Plaintiff or the Defendants' procedures as previously enacted by the Defendants and/or by any person, employee, agent, representative, or board member of the Yuba Community College District, but is in compromise of a disputed claim. 9. This Consent Order is made in full satisfaction of Plaintiff's claims contained in his

First Amended Verified Complaint. 10. Pursuant to this Order, Plaintiff's First Amended Verified Complaint will be dismissed

with prejudice, each party to bear own costs, immediately upon the entry of this Order. 11. This Court retains jurisdiction of this action solely for the purpose of enforcing this

Order, should such need arise. 12. The terms and conditions of this Order shall be binding on the Parties and the Court for

a period of five (5) years from the date this Order is entered. Immediately thereafter, and without any further action by the parties hereto, this Consent Order and the Court's jurisdiction related thereto shall be null, void and rescinded.

CONSENT ORDER - 3

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SO ORDERED this 23rd day of January 2009.

_______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE WE HEREBY CONSENT TO THE FORM AND ENTRY OF THE ABOVE ORDER: RYAN DOZIER, Plaintiff, SUSAN HOULE, ALAN FLORY, JIM BUCHAN, MARK BREDT, LEELA RAI, GEORGE NICOLAU, XAVIER TAFOYA, NICKI HARRINGTON, PAUL MENDOZA, KEVIN TRUTNA, BYRON GREEN, Defendants, By their Attorneys, /s/Katherine A. Alberts LOUIS A. LEONE KATHERINE A. ALBERTS Stubbs & Leone 2175 N. California Blvd., Suite 900 Walnut Creek, California 94596 [phone] [phone]--facsimile

By his Attorneys, /s/Heather Gebelin Hacker BENJAMIN W. BULL DAVID A. FRENCH DAVID J. HACKER HEATHER GEBELIN HACKER Alliance Defense Fund 101 Parkshore Drive, Suite 100 Folsom, California 95630 [phone] [phone]--facsimile

CONSENT ORDER - 4