Johnson v. Perry
Filing
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ORDER denying 21 Motion for Summary Judgment. Plaintiff's due process claim is revived. The parties may submit a revised case management schedule within 14 days to allow for further discovery or additional dispositive motion practice on the due process count. Otherwise, the case will be set down for trial in February 2016. Signed by Judge Warren W. Eginton on 10/21/15. (Ladd-Smith, I.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NORMAN JOHNSON,
Plaintiff,
v.
STEPHEN D. PERRY,
Defendant.
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3:13-cv-01531-WWE
MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT
This is an action by a father of a former student against a high school principal stemming
from the father’s banishment from school property and school sponsored events. Plaintiff alleges
violation of his First Amendment right of peaceful assembly and intentional infliction of
emotional distress. Plaintiff’s due process claim was previously dismissed by the Court.
Defendant has moved for summary judgment on both remaining counts. For the
following reasons, defendant’s motion will be denied. In addition, the Court will revive
plaintiff’s due process claim.
BACKGROUND
Defendant Stephen Perry was the principal of Capital Preparatory School at all times
relevant to the complaint. Defendant is an employee of the Hartford Board of Education.
Plaintiff alleges that defendant deprived him of his right to peaceful assembly in violation
of the First Amendment when defendant banned plaintiff from all school events except
commencement. Plaintiff further alleges that defendant’s ban was extreme and outrageous and
was carried out for the specific purpose of inflicting emotional distress on plaintiff.
Defendant, as principal, possessed general supervisory authority over the school to ensure
the safety of staff and students.
Prior to February 7, 2013, plaintiff’s daughter met with defendant to express her desire to
discontinue with the varsity basketball program due to lack of playing time.
On February 7, 2013, defendant met with plaintiff, plaintiff’s wife, and plaintiff’s
daughter in a conference room at school. Millie Arcinegas, President of the Hartford Parent
Teacher Organization, was also present. The parties discussed the daughter’s participation in
varsity basketball. During the meeting, emotions flared. Plaintiff raised his voice and banged his
hand on the table.
Prior to the meeting, plaintiff had confronted the varsity basketball coach multiple times
about his daughter’s lack of playing time.
Based on plaintiff’s conduct, defendant decided to ban plaintiff from the school and its
events, with the exception of commencement. Defendant informed plaintiff by letter, which
stated:
Dear Mr. Norman Johnson,
This letter is to inform you that as of February 10, 2013, you are [banned] from the Capital
Preparatory Magnet School and its events, (including but not limited to sports both on and
off campus), with the exception of commencement exercises on May 31, 2013; after which
the [ban] will be reinstated. Disregarding this correspondence by coming to school grounds
or to an event in which Capital Prep is a participant[] will result in your immediate removal.
Your verbal altercations, physical intimidation and direct threats to staff have created an
unsafe environment for staff, students and other parents and will no longer be tolerated.
A copy of this letter is being sent to the Hartford Board of Education and the Hartford Police
Department as well as other communities and venues where the Capital Preparatory Magnet
School’s activities may occur.
We appreciate your attention to this matter and expect your full cooperation.
Regards,
Dr. Stephen Perry, MSW
Principal
The Capital Preparatory Magnet School
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Plaintiff indicates that as a result of the ban, he and his family suffered embarrassment
and harassment. He was not permitted to support his daughter in any of her scholastic endeavors.
Subsequently, plaintiff was told to leave Capital Prep basketball games when he was recognized
there by school authorities, including defendant.
Plaintiff has not sought medical treatment in connection with his emotional distress.
DISCUSSION
A motion for summary judgment will be granted where there is no genuine issue as to any
material fact and it is clear that the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Only when reasonable minds could not
differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923
F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
The burden is on the moving party to demonstrate the absence of any material factual
issue genuinely in dispute. American International Group, Inc. v. London American International
Corp., 664 F.2d 348, 351 (2d Cir. 1981). In determining whether a genuine factual issue exists,
the court must resolve all ambiguities and draw all reasonable inferences against the moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
If a nonmoving party has failed to make a sufficient showing on an essential element of
his case with respect to which he has the burden of proof, then summary judgment is appropriate.
Celotex Corp., 477 U.S. at 323. If the nonmoving party submits evidence which is "merely
colorable," legally sufficient opposition to the motion for summary judgment is not met.
Anderson, 477 U.S. at 249.
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First Amendment
“The right of peaceable assembly is a right cognate to those of free speech and free press
and is equally fundamental.” De Jonge v. State of Oregon, 299 U.S. 353, 364 (1937).
A school is generally considered a nonpublic forum, as it is a property that is not
traditionally open to the public for communication. DeFabio v. E. Hampton Union Free Sch.
Dist., 658 F. Supp. 2d 461, 473 (E.D.N.Y. 2009). “[T]he government enjoys greater latitude in
restricting speech in a nonpublic forum and may limit access or content based on subject matter
and speaker identity so long as the distinctions drawn are reasonable in light of the purpose
served by the forum and are viewpoint neutral.” Byrne v. Rutledge, 623 F.3d 46, 54 (2d Cir.
2010). However, “there is no categorical rule that the interests of a school in safety and order
always outweigh constitutional rights.” Cyr v. Addison Rutland Supervisory Union, 955 F.
Supp. 2d 290, 294 (D. Vt. 2013). While “[i]t is clear a public school has a compelling interest in
maintaining order and ensuring safety on its grounds . . . [and that this interest] may justify
constitutional infringements, including restrictions on the First Amendment rights of parents and
other members of the public,” such restrictions must be reasonable. Id.
Here, defendant argues that the ban was reasonable and viewpoint neutral because it was
justified by defendant’s concern that plaintiff posed a danger to the staff and children at the
school. However, whether plaintiff posed a danger to staff and children at the school is a
disputed fact. Equally disputed is whether defendant banned plaintiff from school property based
on a disagreement with the message plaintiff was conveying. That plaintiff’s comments may
have caused discomfort on the part of school staff, or may have been the subject of disagreement
cannot justify governmental restriction or suppression based on those comments. See Tinker v.
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Des Moines Independent Community School Dist., 393 U.S. 503, 509 (1969) (“In order for the
State in the person of school officials to justify prohibition of a particular expression of opinion,
it must be able to show that its action was caused by something more than a mere desire to avoid
the discomfort and unpleasantness that always accompany an unpopular viewpoint.”).
Defendant argues in the alternative that plaintiff has no First Amendment right to attend
school events. Although the First Amendment does not guarantee unfettered access to school
grounds, this argument cannot trump the requirement that restrictions on assembly and speech be
reasonable and viewpoint neutral without erasing it. Accordingly, summary judgment will be
denied as to plaintiff’s First Amendment Claim.
Intentional Infliction of Emotional Distress
Defendant argues that plaintiff’s IIED claim should be dismissed because (1) defendant’s
conduct was not extreme and outrageous and (2) plaintiff did not suffer extreme emotional
distress.
“Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme
and outrageous is initially a question for the court to determine. Only where reasonable minds
disagree does it become an issue for the jury.” Hartmann v. Gulf View Estates Homeowners
Ass’n, Inc., 88 Conn. App. 290, 295 (2005).
Resolving all ambiguities and drawing all reasonable inferences in plaintiff’s favor, the
Court finds that reasonable minds could disagree on whether defendant’s conduct was extreme
and outrageous. Indeed, plaintiff contends that he was forbidden from merely picking his
daughter up and dropping her off outside the school building - allegedly based on the content of
his speech that offended defendant. Defendant denies the allegation, but ultimately, the contested
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factual background and motivations at issue are best determined by a jury.
The Court also finds that plaintiff’s descriptions of his emotional distress should be
evaluated by a jury. Defendant faults plaintiff for the lack of a medical treatment record, but the
Supreme Court of Connecticut has held that such an “argument wrongly assumes that the
plaintiff was required to present more than his own testimony to prevail on [his IIED count].”
Berry v. Loiseau, 223 Conn. 786, 807 (1992). Accordingly, summary judgment will be denied as
to plaintiff’s IIED claim.
Due Process
The Court granted defendant’s motion to dismiss plaintiff’s due process claim [Doc. #15]
after plaintiff failed to convince the Court with his argument that banishment from “public
sporting events” required a pre-deprivation hearing. Plaintiff argued that such a tangible
deprivation combined with harm to his reputation satisfied the so called “stigma-plus” standard.
See Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004). Under the “stigma-plus”
standard,
as a result of the state action complained of, a right or status previously recognized
by state law [must be] distinctly altered or extinguished. It was this alteration,
officially removing the interest from the recognition and protection previously
afforded by the State, which we found sufficient to invoke the procedural guarantees
contained in the Due Process Clause of the Fourteenth Amendment.
Paul v. Davis, 424 U.S. 693, 711 (1976).
The Court dismissed plaintiff’s due process claim without prejudice to amend his
complaint to add allegations that attendance at school events is a right protected by law. Plaintiff
declined to amend, but the Court now holds, sua sponte, that plaintiff’s complaint, which alleges
that defendant banned plaintiff from all school events, except commencement, implicated the
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fundamental right of a parent to make decisions concerning the care, custody, and control of his
child. See Troxel v. Granville, 530 U.S. 57, 66 (2000). The Court was mistaken to dismiss
plaintiff’s due process claim, as defendant’s actions deprived plaintiff of a recognized liberty
interest.
The liberty interest at issue in this case—the interest of parents in the care, custody,
and control of their children—is perhaps the oldest of the fundamental liberty
interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska,
(1923), we held that the “liberty” protected by the Due Process Clause includes the
right of parents to “establish a home and bring up children” and “to control the
education of their own.” Two years later, in Pierce v. Society of Sisters, (1925), we
again held that the “liberty of parents and guardians” includes the right “to direct the
upbringing and education of children under their control.” We explained in Pierce
that “[t]he child is not the mere creature of the State; those who nurture him and
direct his destiny have the right, coupled with the high duty, to recognize and prepare
him for additional obligations.” We returned to the subject in Prince v.
Massachusetts, (1944), and again confirmed that there is a constitutional dimension
to the right of parents to direct the upbringing of their children. “It is cardinal with
us that the custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can
neither supply nor hinder.”
In subsequent cases also, we have recognized the fundamental right of parents to
make decisions concerning the care, custody, and control of their children. See, e.g.,
Stanley v. Illinois, (1972) (“It is plain that the interest of a parent in the
companionship, care, custody, and management of his or her children ‘come[s] to this
Court with a momentum for respect lacking when appeal is made to liberties which
derive merely from shifting economic arrangements' ”); Wisconsin v. Yoder, (1972)
(“The history and culture of Western civilization reflect a strong tradition of parental
concern for the nurture and upbringing of their children. This primary role of the
parents in the upbringing of their children is now established beyond debate as an
enduring American tradition”); Quilloin v. Walcott, (1978) (“We have recognized on
numerous occasions that the relationship between parent and child is constitutionally
protected”); Parham v. J. R., (1979) ( “Our jurisprudence historically has reflected
Western civilization concepts of the family as a unit with broad parental authority
over minor children. Our cases have consistently followed that course”); Santosky v.
Kramer, (1982) (discussing “[t]he fundamental liberty interest of natural parents in
the care, custody, and management of their child”); Glucksberg, supra, (“In a long
line of cases, we have held that, in addition to the specific freedoms protected by the
Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes
the righ [t] ... to direct the education and upbringing of one's children” (citing Meyer
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and Pierce)). In light of this extensive precedent, it cannot now be doubted that the
Due Process Clause of the Fourteenth Amendment protects the fundamental right of
parents to make decisions concerning the care, custody, and control of their children.
Troxel v. Granville, 530 U.S. at 65-66 (internal citation omitted).
Banning a parent from his child’s public school infringes upon the parent’s
constitutional liberty interest in directing the education of his child. Although the State
has authority to restrict school access to ensure a safe and productive environment, it may
not so significantly prohibit an individual parent from normal school access without
affording the parent a fundamentally fair opportunity to contest the State’s asserted
reasons for doing so.
At a minimum, due process requires notice and an opportunity to be heard “at a
meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333
(1976). The Supreme Court has described the “root requirement of the Due Process
Clause as being that an individual be given an opportunity for a hearing before he is
deprived of any significant [liberty or] property interest.” Cleveland Bd. Of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985).
Accordingly, plaintiff’s due process count is revived. The parties may submit a
revised case management schedule if necessary for additional discovery or dispositive
motion practice on this count.
Qualified Immunity
“[G]overnment officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
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known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Defendant bears the burden of proving that he is entitled to qualified immunity.
Huminski v. Corsones, 396 F.3d 53, 80 (2d Cir. 2004). “Where there are no genuinely
disputed factual issues material to the qualified immunity defense, a defendant may move
for summary judgment dismissing the plaintiff's claim on that basis.” Vincent v. Yelich,
718 F.3d 157, 167 (2d Cir. 2013).
Construing the evidence in the light most favorable to plaintiff, there is a genuine
issue of material fact as to whether defendant violated plaintiff’s constitutional rights.
See Huminski, 396 F.3d at 80. “If there is such a genuine issue of material fact that, if
decided in favor of [plaintiff], would establish a violation of one of his constitutional
rights, we must then address the extent to which the right may have been clearly
established at the time of the defendants' acts in question.” Id.
In order for a constitutional right to be clearly established, “[t]he contours of
the right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Anderson v. Creighton, 483 U.S.
635, 640 (1987). This does not mean that there must be a factual equivalency
between the case at issue and prior cases. The “salient question” instead is
whether the case law at the time in question would have put reasonable
officers on “fair warning” that their conduct violated the plaintiff's rights.
Hope v. Pelzer, 536 U.S. 730, 741, (2002).
In performing this analysis we consider, “(1) whether the right in question
was defined with ‘reasonable specificity’; (2) whether the decisional law of
the Supreme Court and the applicable circuit court support the existence of
the right in question; and (3) whether under preexisting law a reasonable
defendant official would have understood that his or her acts were unlawful.”
Ying Jing Gan v. City of N.Y., 996 F.2d 522, 532 (2d Cir.1993).
Matusick v. Erie County Water Authority, 757 F3d 31, 60 (2d Cir. 2014).
Here, too, defendant’s qualified immunity defense fails at the summary judgment
stage because it turns on disputed issues of fact material to the defense.
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The qualified immunity analysis involves relating the legal standard of conduct to
the facts established by the evidence in the case at hand. Clearly, the decisional law of
the Supreme Court and the Second Circuit support the existence of the constitutional
rights at issue. Whether the right in question was defined with reasonable specificity and
whether under preexisting law a reasonable defendant would have understood that his
acts were unlawful depends on the level of factual specificity applied to the analysis. In
this case, these questions also turn on credibility assessment and resolution of factual
disputes.
The constitutional rights applicable to this case have been clearly established
when described at the most general level. Viewed in the light most favorable to plaintiff,
a narrow view of the facts also establishes that plaintiff’s rights were defined with
reasonable specificity under existing law such that a reasonable official would have
understood that his acts were unlawful.
Indeed, plaintiff’s First Amendment rights would be violated if defendant banned
plaintiff from participation in his daughter’s public school education merely because
defendant disagreed with plaintiff’s viewpoint or because of arbitrary bias. Plaintiff’s due
process rights would be violated if such a ban were implemented without an opportunity
to be heard at a meaningful time and in a meaningful manner. This is the story that
plaintiff will tell. Defendant will contend that, in his opinion, plaintiff’s intimidating
behavior was so threatening that defendant’s decision to implement such a ban was
reasonable, viewpoint neutral, and undeserving of “some kind of hearing” prior to the
deprivation of plaintiff’s liberty interest. See Loudermill, 470 U.S. at 542.
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As genuinely disputed factual issues material to the qualified immunity defense exist,
qualified immunity will be denied.
CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss [Doc. # 21] is denied.
Plaintiff’s due process claim is revived. The parties may submit a revised case
management schedule within 14 days to allow for further discovery or additional
dispositive motion practice on the due process count. Otherwise, the case will be set
down for trial in February 2016.
Dated this 21st Day of October, 2015, at Bridgeport, Connecticut.
/s/Warren W. Eginton
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE
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