Nails v. Kansas City, Kansas Public Library et al

Filing 13

MEMORANDUM AND ORDER - Plaintiff shall have fourteen days from the date upon which she receives this order to file an amended complaint. Signed by District Judge Carlos Murguia on 5/4/15. Mailed to pro se party Angela Nails by regular and certified mail. (Certified Tracking Number: 7012 3460 0000 8262 4289)(kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANGELA NAILS,

)
)
Plaintiff,
)
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v.
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)
KANSAS CITY PUBLIC LIBRARY, et al., )
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Defendants.
)
)

Case No. 14-2636-CM

MEMORANDUM AND ORDER
Plaintiff Angela Nails filed this action pro se against the Kansas City Public Library (the
“Library”), David Hanson, Carol Levers, and “public library security officers,” alleging that her civil
and due process rights were violated. (Doc. 1.) Plaintiff moved to proceed in forma pauperis, which
Magistrate Judge Teresa J. James granted. (Doc. 5 at 2.) Magistrate Judge James also ordered plaintiff
to show good cause why this action should not be dismissed for failure to state a claim upon which
relief can be granted. (Id. at 3.) Plaintiff filed a response (“Response”) (Doc. 8), which the court
considers, along with her originally filed Complaint. (Doc. 1.)
I.

Legal Standards

The court is required to dismiss an in forma pauperis case if it determines the action fails to
state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Rainey v. Bruce, 74 F.
App’x 8, 9 (10th Cir. 2003). Rule 8(a) requires that a claim for relief must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The
purpose of this rule is to give the opposing party “fair notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 540, 555 (2007). To satisfy this obligation,
the pleader must include factual allegations that “state a claim to relief that is plausible on its face.” Id.
at 570. To make this showing, the pleader must allege “factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).
As noted, plaintiff appears pro se. Pro se pleadings must be liberally construed and must be
held to less stringent standards than formal pleadings drafted by lawyers. See Estelle v. Gamble, 429
U.S. 97, 106 (1976). However, a district court should not assume the role of advocate and should
dismiss claims which are supported only by vague and conclusory allegations. Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991); see also United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009)
(“[T]his rule of liberal construction stops, however, at the point at which we begin to serve as his
advocate.”); Garret v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“The court
cannot take on the responsibility of serving as the litigant’s attorney in constructing arguments and
searching the record.”). Moreover, even pro se plaintiffs are required to comply with the fundamental
requirements of the Federal Rules of Civil Procedure and substantive law. Ogden v. San Juan Cnty.,
32 F.3d 452, 455 (10th Cir. 1994).
II.

Analysis

Plaintiff’s claims involve the revocation of her library privileges after purportedly using her
cellular phone to make calls in the library’s computer lab and attempting to sell clothing to another
library patron. (Doc. 1 at 7–8.) Plaintiff’s Complaint and her Response contain conflicting
information, though. In her Complaint, plaintiff appears to admit to being warned about using her
phone in the library computer lab, but in her Response, plaintiff claims she was not warned. Also in
her Complaint, plaintiff appears to admit to asking another patron one time to purchase clothing, but in
her Response, plaintiff asserts that she “was not solicitation [sic] to buy clothing or selling clothing in
the library.” Plaintiff alleges in her Complaint that she appealed the Library’s decision to revoke her
privilege, yet she claims in her Response she was not given the opportunity to appeal the decision.

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Given the liberal reading the court must afford plaintiff’s filings, the court cannot say as a
matter of law that plaintiff has failed to state a claim. When government action deprives a person of
life, liberty, or property without fair procedures, it violates procedural due process. See United States
v. Salerno, 481 U.S. 739, 747 (1987). However, procedural due process is only available to plaintiffs
that establish the existence of a recognized property or liberty interest. Stidham v. Peace Officer
Standards And Training, 265 F.3d 1144, 1149 (10th Cir. 2001) (citing Setliff v. Mem’l Hosp., 850 F.2d
1384, 1394 (10th Cir. 1988) and Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972)). Plaintiff has not
expressly articulated a protected liberty or property interest in her right to use the public library.
However, in Neinast v. Bd. of Trustees of Columbus Metro. Library, a plaintiff claimed that his
rights were violated when he was evicted from a public library for violating the policy requiring shoes.
346 F.3d 585, 591 (6th Cir. 2003). The Sixth Circuit determined that the First Amendment protects the
right to receive information and that “[t]his right to receive information ‘includes the right to some
level of access to a public library, the quintessential locus of the receipt of information.’” Id. (quoting
Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992) and
citing Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577, 582 (6th Cir. 1976) (“A library is a
mighty resource in the free marketplace of ideas.”); Armstrong v. Dist. of Columbia Pub. Library, 154
F. Supp. 2d 67, 75 (D.D.C. 2001) (noting the existence of “long-standing precedent supporting
plaintiff’s First Amendment right to receive information and ideas, and this right’s nexus with access
to public libraries”)). The Sixth Circuit ultimately found that the no-barefoot regulation was contentneutral and did not directly impact the plaintiff’s right to receive information; accordingly, the Sixth
Circuit utilized a rational basis test, finding that the regulation was a rational means to further the
legitimate governmental interests of “protecting public health and safety and protecting the Library’s

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economic well-being by seeking to prevent tort claims brought by library patrons who were injured
because they were barefoot.” Id. at 592.
In addition to a protectable interest under the First Amendment, plaintiff may have a liberty
interest in her right to use the library under Kan. Stat. Ann. § 12-1227.1 See, e.g., Hill v. Derrick, No.
4:05CV1229, 2006 WL 1620226, at *7–8 (M.D. Pa. June 8, 2006), aff’d, 240 F. App’x 935 (3d Cir.
2007) (holding that Pennsylvania law created protectable liberty interest in patrons’ right to library
access). Section 12-1227 requires that the library be “free to the use of the inhabitants of the
municipality in which located,” and that those inhabitants can lose this benefit if they violate
“reasonable rules and regulations” adopted by the library’s board.
In this case, defendants have not answered or otherwise responded to plaintiff’s claims, so the
court has not seen the Library’s policies on cellular phone use and solicitation of other patrons.
Moreover, plaintiff alleges that the Library violated its own policies,2 yet the court is unclear as to
whether plaintiff is alleging that the Library’s failure to post warning notices about cellular phone use
and solicitation is a violation of the Library’s own policies, whether the manner in which she was
notified of her appeal rights violated Library policy, or whether she in fact did not violate the Library’s
policies on cell phone use and solicitation. Given the liberal standard by which this court must view
plaintiff’s allegations, the court cannot say as a matter of law that the Library’s policies pass
constitutional muster or that the Library followed its own policies in permanently evicting plaintiff
from the Library.

1

Kan. Stat. Ann. § 12-1227 provides: “Every library established under, or governed by the provisions of this act shall be
free to the use of the inhabitants of the municipality in which located, subject always to such reasonable rules and
regulations as the library board may adopt, and said board may exclude from the use of said library any and all persons who
shall willfully violate such rules. The library board may extend the use and privilege of such library to nonresidents of the
municipality and may make exchanges of books with any other library upon such terms and conditions as said board may
from time to time by its regulations prescribe.”
2
Doc. 8 at 1.

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Given these uncertainties at this stage in the litigation, the court declines to dismiss plaintiff’s
case. However, the court believes that defendants should be required to answer or otherwise respond
to plaintiff’s allegations only after she has amended her complaint. In amending her complaint,
plaintiff should be clear in explaining the facts leading up to her removal from the Library, including
whether she was permitted to appeal the Library’s decision, and what policies she believes the Library
violated. In signing an amended complaint, plaintiff should be cognizant of her duties of candor to the
court under Federal Rule of Civil Procedure 11.
IT IS THEREFORE ORDERED that plaintiff shall have fourteen days from the date upon
which she receives this order to file an amended complaint.
Dated this 4th day of May, 2015, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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