Bloedorn v. Dr. Bruce Grube, et al
Filing
97
ORDER granting 71 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge B. Avant Edenfield on 5/2/2012. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
BENJAMIN BLOEDORN,
Plaintiff,
v.
6:09-cv-55
DR. BROOKS A. KEEL, in his
official capacity as President of
Georgia Southern University, et al.,
Defendants.
ORDER
I. INTRODUCTION
Before the Court is Defendants’ “Motion
to Dismiss for Mootness Alternatively
Motion for Judgment on the Pleadings.” See
Doc. 71.
II. FACTS
Bloedorn sued Defendants, employees of
Georgia Southern University (the
“University”), under 42 U.S.C §§ 1983 and
1988, claiming that the University’s speech
policy deprived him of his rights to free
speech, due process, and freedom from
unreasonable seizure. See Doc. 54.
Bloedorn, a traveling evangelist,
complains that he was denied the
opportunity to preach freely on the campus
without first obtaining permission from the
University. See id. at 10. He also contested
his arrest for criminal trespass and certain
other time, place, and manner restrictions.
See id. at 2, 11-12.
This Court denied Bloedorn’s motion for
a preliminary injunction. See Doc. 33.
Bloedorn appealed. See Doc. 34. While
Bloedorn’s appeal was pending, the
University made minor changes to its speech
policy. See Doc. 96 at 3 n.3. The Eleventh
Circuit affirmed on February 28, 2011. See
Bloedorn v. Grube, 631 F.3d 1218 (11th Cir.
2011). Bloedorn then amended his
complaint, and the University again
amended its speech policy. See Docs. 54;
Doc. 57-2 (University’s third speech policy
(“Third Policy”)).
Defendants then moved for partial
dismissal. See Doc. 57. The Court
dismissed Bloedorn’s challenges to the
University’s complete ban on speech outside
the Free Speech Zone, a grassy area that the
University had designated as a public forum.
See Doc. 63 at 7; see also Bloedorn, 631
F.3d at 1234 (concluding that the Free
Speech Zone is a designated public forum).
The Court also dismissed the rest of
Bloedorn’s claims except for his challenges
to the Third Policy’s creation of discretion
for the University in determining whether to
grant permit requests and to the Third
Policy’s literature distribution identification
requirements. See Doc. 63 at 8-9.
The Court did not dismiss Bloedorn’s
“objections” to the Third Policy’s
requirement that a speaker request
permission to speak 48 hours in advance or
to its limits on the duration and frequency of
a particular speaker’s speech because
Defendants did not challenge those
objections. See id. at 5, 7.
University officials began discussing
new revisions to the policy in July 2011.
See Doc. 95-1 at 22 (Copeland Depo.).
Maura Copeland (“Copeland”), the
University’s Associate Vice-President for
Legal Affairs, testified that the University
began reviewing the policy both as part of a
general University initiative to review its
policies and as a consequence of this
litigation. Id. at 21.
The Current Policy also explains the
need for the 48-hour notice requirement.
See id. (stating purpose is “to provide
University staff sufficient time to process
the request, enter the reservation in the
reservations database and notify Public
Safety of the anticipated presence of a non
University-affiliated speaker(s) on
campus”).
Following these discussions, the
University again amended its speech policy,
and Defendants brought a motion to dismiss
all of Bloedorn’s remaining claims and a
motion for judgment on the pleadings with
regards to Bloedorn’s objection to the 48hour notice requirement. See Docs. 71; 71-1
(University’s current speech policy
(“Current Policy”)).
After adopting the Current Policy,
University officials did not discuss the
possibility of restoring the Third Policy. See
Doc. 95-2 at 5.
III. STANDARDS OF REVIEW
The Current Policy limits the discretion
vested in University officials by providing
that applications will be approved “unless it
is determined that the speaker or speech will
constitute or create a substantial likelihood
of material interference with the normal
orderly decisions and processes of the
University or with the requirements of
appropriate discipline.” Doc. 71-1 at 4. The
Current Policy also gives an applicant the
right to request a hearing in the event of a
denial. See id. at 4-5.
A. Attack on Subject Matter
Jurisdiction
There are two types of attacks on subject
matter jurisdiction. See Lawrence v.
Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.
1990). “Facial attacks” require that the
court take the allegations of a plaintiff’s
complaint as true and determine whether the
plaintiff has sufficiently alleged a basis for
subject matter jurisdiction. See id. at 1529.
“‘Factual attacks,’ on the other hand,
challenge ‘the existence of subject matter
jurisdiction in fact, irrespective of the
pleadings, and matters outside the pleadings,
such as testimony and affidavits, are
considered.” Id. (quoting Menchaca v.
Chrysler Credit Corp., 613 F.2d 507, 511
(5th Cir. 1980)).
The Current Policy has eliminated the
requirement that literature distributed on
campus identify the distributing entity and
the prohibition on reserving the Free Speech
Zone more than once a month for a total of
one and one-half hours. See id; see also
Doc. 57-2 at 3 (setting forth these limitations
in the Third Policy). The Current Policy
does not limit how often a speaker may
speak in the zone and allows a speaker to
make a new reservation at the end of a
preceding three-day reservation period. See
Doc. 71-1 at 4-5.
Defendants assert that this case has
become largely moot. See Doc. 71 at 5.
Accordingly, Defendants launch a factual
attack, and this Court will consider matters
both inside and outside the pleadings.
2
B. Motion for Judgment on the
Pleadings
than a sheer possibility that a
defendant has acted unlawfully.
“Rule 12(c) permits judgment on the
pleadings when there are no material facts in
dispute and judgment may be rendered by
considering the substance of the pleadings
and any judicially noticed facts.” Scottsdale
Ins. Co. v. Pursley, 450 F. App’x 888, 890
(11th Cir. 2012). The Court must determine
whether the complaint states a claim for
relief. See Strategic Income Fund, L.L. C. v.
Spear, Leeds & Kellogg Corp., 305 F.3d
1293, 1295 n.8 (11th Cir. 2002). Thus, the
pleading standard established in Twombly
and Iqbal is relevant.
129 S. Ct. at 1949 (internal citation and
quotation omitted).
In order to assess the plausibility of a
complaint, a court must be mindful of two
principles. “First, the tenet that a court must
accept as true all of the allegations contained
in a complaint is inapplicable to legal
conclusions.” Id. “Second, only a
complaint that states a plausible claim for
relief survives a motion to dismiss.” Id. at
1950.
IV. ANALYSIS
A. Motion to Dismiss on Grounds of
Mootness
The Court “must accept the facts alleged
in the complaint as true and view them in
the light most favorable to the nonmoving
party.” Cannon v. City of West Palm Beach,
250 F.3d 1299, 1301 (11th Cir. 2001). A
complaint will not be dismissed so long as it
contains factual allegations sufficient “to
raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); see also Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009) (claim must
have “facial plausibility”); Edwards v.
Prime, Inc., 602 F.3d 1276, 1291 (11th Cir.
2010).
Defendants move to dismiss Bloedorn’s
remaining claims, except for any claim
pertaining to the 48-hour notice requirement,
as being moot under the Current Policy. See
Doc. 71 at 5.
“A case is moot when events subsequent
to the commencement of a lawsuit create a
situation in which the court can no longer
give the plaintiff meaningful relief.” Jews
for Jesus, Inc. v. Hillsborough Cnty.
Aviation Auth., 162 F.3d 627, 629 (11th Cir.
1998). Defendants claim that the Current
Policy “eliminates a number of the
provisions challenged by Plaintiff.” Doc. 71
at 4.
The Iqbal Court further explained the
required level of specificity:
A claim has facial plausibility
when the plaintiff pleads factual
content that allows the court to draw
the reasonable inference that the
defendant is liable for the
misconduct alleged. The plausibility
standard is not akin to a probability
requirement, but it asks for more
“It is well settled that ‘a defendant's
voluntary cessation of a challenged practice
does not deprive a federal court of its power
to determine the legality of the practice.’”
Nat’l Ass’n of Bds. of Pharmacy v. Bd. of
Regents of the Univ. Sys. of Ga., 633 F.3d
1297, 1309 (11th Cir. 2011) (quoting
3
Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 189
(2000)). “Accordingly, the voluntary
cessation of challenged conduct will only
moot a claim when there is no ‘reasonable
expectation’ that the accused litigant will
resume the conduct after the lawsuit is
dismissed.” Nat’l Ass’n of Bds. of
Pharmacy, 633 F.3d at 1309 (quoting Jews
for Jesus, 162 F.3d at 629).
the result of substantial deliberation, or is
simply an attempt to manipulate
jurisdiction”; and (3) “whether the
government has ‘consistently applied’ a new
policy or adhered to a new course of
conduct.” Nat’l Ass’n of Bds. of Pharmacy,
633 F.3d at 1310.
Bloedorn does not dispute that the
Current Policy, if effective, would render his
claims moot. Instead, he argues that there is
a reasonable expectation that Defendants
will reinstall the old, allegedly
unconstitutional policy. See Doc. 96.
“The heavy burden of persuading the
court that the challenged conduct cannot
reasonably be expected to start up again lies
with the party asserting mootness.” Friends
of the Earth, Inc., 528 U.S. at 170 (quotation
omitted). Yet, “government actor[s enjoy] a
rebuttable presumption that the
objectionable behavior will not recur.”
Troiano v. Supervisor of Elections in Palm
Beach Cnty., Fla., 382 F.3d 1276, 1283
(11th Cir. 2004); see also Harrell v. The
Fla. Bar, 608 F.3d 1241, 1266 (11th Cir.
2010). Hence, “the Supreme Court has held
almost uniformly that voluntary cessation of
the challenged behavior [by a government
defendant] moots the claim.” Beta Upsilon
Chi Upsilon Chapter at the Univ. of Fla. v.
Machen, 586 F.3d 908, 917 (11th Cir. 2009).
Bloedorn puts forward two reasons for
this conclusion. The first is that timing of
Defendants’ policy changes indicates that
Defendants installed the Current Policy
solely for the purpose of defeating the
Court’s jurisdiction. See id. at 2-4. The
University has changed its policy three times
during this litigation. See Doc. 95-2 at 6.
The Current Policy went into effect on
October 19, 2011, five days before
Defendants filed their present motion to
dismiss. See Doc. 96 at 3; see also Doc. 71.
The second reason is Defendants’
professed impetus for amending the policy.
Defendants admitted in discovery that
University officials reviewed the speech
policy “to explore whether or not it was
possible to resolve any of the concerns
raised in the litigation.” Doc. 96-1 at 8
(Defendants’ answers to interrogatories).
Defendants’ internal emails indicate the
same purpose. See Doc. 96-4 at 2-3.
Copeland admitted that the litigation was
one reason the University had for installing
the Current Policy. See Doc. 95-1 at 21.
The Eleventh Circuit “has consistently
held that a challenge to . . . government
[conduct] that has been unambiguously
terminated will be moot in the absence of
some reasonable basis to believe that the
[conduct] will [resume] if the suit is
terminated.” Troiano, 382 F.3d at 1285.
“Three factors are relevant in conducting
this mootness inquiry”: (1) “whether the
termination of the offending conduct was
‘unambiguous’”; (2) “whether the change in
government policy or conduct appears to be
4
Bloedorn believes that “once this
litigation goes away, the engine to apply the
new policy disappears,” and Defendants
may choose to revisit old iterations of the
policy. Doc. 96 at 5-6.
objectives of this type of litigation:
remediation of potentially unconstitutional
policies and practices. There is no evidence
suggesting that the University amended its
policy simply to strip this Court of
jurisdiction.
Applying the three factors, the Court
determines that the Current Policy has
rendered Bloedorn’s claims regarding the
University’s discretion in determining
whether to grant permit requests and the
literature distribution identification
requirement moot.
Third, Bloedorn has presented no
evidence that the University has
inconsistently applied the Current Policy,
and the Court has found none.
Accordingly, Bloedorn has not rebutted
the presumption that the University’s act of
voluntary cessation has mooted his claims
regarding the University’s discretion in
determining whether to grant permit
requests and the literature distribution
identification requirement. Those claims are
DISMISSED as MOOT.
First, Bloedorn offers no evidence
indicating that the termination of these
offensive features was ambiguous. In fact,
the Current Policy has unambiguously
eliminated the offending provisions.
Second, the University’s decision
appears to be the result of substantial
deliberation. Copeland, the University’s
Associate Vice-President for Legal Affairs,
attested that the University began discussing
the current revisions in July 2011. Although
Bloedorn’s litigation drew the University’s
attention to the policy, University officials
have not discussed the possibility of
reverting to an older policy after this
litigation is concluded.
B. 48-Hour Notice Requirement and
Motion for Judgment on the Pleadings
Defendants also move to dismiss any
claim Bloedorn makes regarding the 48-hour
notice requirement. See Doc. 71 at 9.
Bloedorn argues that this Court has
already considered his claim against the 48hour notice requirement to be valid. See
Doc. 75 at 5. Defendants, however, did not
challenge this claim in their first motion to
dismiss. Accordingly, the Court did not
evaluate Bloedorn’s claim against Twombly
and Iqbal. See Doc. 63. The Court’s earlier
Order is not dispositive of Defendants’
current motion.
Furthermore, the fact that the University
began reevaluating its policy in light of this
litigation is of no moment per se. Litigation
often causes actors to reconsider policies
and courses of conduct. Accepting
Bloedorn’s argument would render wellmeaning attempts to amend policies such as
the one in this suit futile until litigation is
concluded. Permitting actors to amend
policies saves time and resources and
ultimately achieves one of the primary
Bloedorn’s amended complaint does not
explicitly challenge the 48-hour notice
requirement; instead, the complaint
mentions that the requirement is listed on
the bottom of the University’s permit
5
applications and “objects” to the need for a
speaker not affiliated with the University to
obtain permission. See Doc. 54 at 7-8, 1011.
Bloedorn, 631 F.3d at 1238 (citations
omitted) (quoting Ward v. Rock Against
Racism, 491 U.S. 781, 798-99 (1989)).
The University has significant interests
that are implicated by the Current Policy.
“First, the University has a significant
interest in regulating competing uses of the
Free Speech Area in order to ensure that
diverse viewpoints are heard and that the
University's community members—
particularly the students—have ample access
to scarce university facilities.” Id. “The
University also has a significant interest in
ensuring safety and order on campus,
especially where the Free Speech Area is
sited at a highly trafficked area of the
campus, and the University employs a
limited security force.” Id.
The Free Speech Zone is a designated
public forum. See Bloedorn, 631 F.3d at
1234. “[A] time, place, and manner
restriction can be placed on a designated
public forum only if it is content neutral,
narrowly tailored to achieve a significant
government interest, and ‘leave[s] open
ample alternative channels of
communication.’” Id. at 1231 (quoting
Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45-46 (1983)).
Bloedorn did not allege and does not
now argue that the 48-hour-notice
requirement is not content neutral, not
narrowly tailored, and does not leave open
ample alternative channels of
communication. See Docs. 54; 75; 96.
The Current Policy states that the
purpose of the 48-hour notice requirement is
“to provide University staff sufficient time
to process the request [for permission], enter
the reservation in the reservations database
and notify Public Safety of the anticipated
presence of a non University-affiliated
speaker(s) on campus.” Doc. 71-1 at 4.
Thus, the notice provision is tangentially
related to the first interest (by assisting in
regulating uses) and directly implicates the
second interest.
The 48-hour notice requirement is
patently content neutral. Furthermore, the
requirement is narrowly tailored.
A narrowly tailored time, place, and
manner restriction on speech does
not “burden substantially more
speech than is necessary” to further a
significant government interest. So
long as the policy is content neutral,
the restriction “need not be the least
restrictive or least intrusive means of
doing so.” Rather, the government
need only avoid “regulating
expression in such a manner that a
substantial portion of the burden on
speech does not serve to advance its
goals.”
The only speech potentially burdened by
the University’s method of furthering these
two interests is spontaneous speech, and the
burden the notice provision places on
spontaneous
speech
advances
the
University’s interests.
Accordingly, the
notice provision is narrowly tailored.
Finally, ample alternative channels exist
for Bloedorn to convey his message.
6
Bloedorn does not allege that the notice
requirement fails to leave open ample
alternative channels for the type of
communication in which he is interested:
religious speech. If Bloedorn were to
comply with the notice requirement, for
example, Bloedorn would be able to engage
in his desired method of communication.
Therefore, the University’s 48-hour
notice provision is valid. Cf. Bowman v.
White, 444 F.3d 967, 982 (8th Cir. 2006)
(upholding university’s three-day notice
requirement in light of the “modest nature of
the requirement” and university’s limited
ability to deal with exigencies). Any claims
Bloedorn has regarding the 48-hour notice
provision are DISMISSED.
V. CONCLUSION
Defendants’ motion to dismiss, see Doc.
71, is GRANTED. This case is
DISMISSED.
This 2nd day of May 2012.
,/ He;. fr• 4a1
iura
B. AVANT EDENFEELO,
UNiTED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?