Hershey v. Kansas City Kansas Community College et al

Filing 26

MEMORANDUM AND ORDER granting in part and denying in part 20 Motion to Dismiss for Failure to State a Claim; denying 22 Motion to Stay Case; denying 5 Motion for Preliminary Injunction. Signed by Chief Judge J. Thomas Marten on 2/17/2017. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RICHARD HERSHEY,
Plaintiff,
v.

Case No. 2:16-cv-2251-JTM

KANSAS CITY KANSAS COMMUNITY COLLEGE;
DERYL W. WYNN, in his official capacity as Chief
Compliance Officer of Kansas City Kansas Community
College, and in his individual capacity;
DR. JONATHAN LONG, in his official capacity as
Dean of Students of the Kansas City Kansas Community
College, and in his individual capacity;
WENDELL MADDOX, in his official capacity as a
Member of the Kansas City Kansas Community College
Board of Trustees;
CATHY BREIDENTHAL, in her official capacity as a
Member of the Kansas City Kansas Community College
Board of Trustees;
DONALD ASH, in his official capacity as a
Member of the Kansas City Kansas Community College
Board of Trustees;
JOHN RIOS, in his official capacity as a
Member of the Kansas City Kansas Community College
Board of Trustees;
RAY DANIELS, in his official capacity as a
Member of the Kansas City Kansas Community College
Board of Trustees;
CLYDE TOWNSEND, in his official capacity as a
Member of the Kansas City Kansas Community College
Board of Trustees; and
MARY ANN FLUNDE, in her official capacity as a
Member of the Kansas City Kansas Community College
Board of Trustees,
Defendants.

MEMORANDUM AND ORDER

Plaintiff filed this action under 42 U.S.C. § 1983 claiming the defendants are
depriving him of First Amendment rights. He alleges the defendants have arbitrarily
denied his requests to use the upper level lobby and hallways of Jewell Hall, a building
on the Kansas City Community College campus, to distribute leaflets and display
videos advocating a vegetarian lifestyle. (Dkt. 1). The matter is now before the court on
defendants’ motion to dismiss the complaint (Dkt. 20) and plaintiff’s motion for a
preliminary injunction (Dkt. 5). For the reasons discussed herein, the motion to dismiss
is granted in part and denied in part, and the motion for preliminary injunction is
denied.
I. Summary of complaint.
The following allegations are taken from the complaint. Plaintiff is a vegetarian
advocate who spends time on college campuses distributing booklets and showing
short videos about a vegetarian lifestyle. He is compensated by not-for-profit
organizations and receives grants for his work. For a period of years beginning in 2010,
he engaged in such advocacy at the Kansas City Kansas Community College
(hereinafter “the College”), primarily “in the hallways and upper level lobby area of
Jewell Hall.”
Plaintiff alleges that the College holds the hallways and upper lobby of Jewell
Hall open to speech by the general public on a variety of issues, and that these areas
constitute a designated non-traditional public forum for the exercise of First
Amendment rights.

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In 2010, the Vice President of Student Services at the College wrote plaintiff and
others to welcome them to conduct advocacy in the hallways of campus buildings as
long as they checked in with the Campus Police upon arrival. Plaintiff has always
checked-in as requested. In October 2013, plaintiff arranged with the same Vice
President to use tables so he could present videos to students, using portable DVD
players with headphones and privacy screens. In 2013, the Dean of Student Services, Dr.
Jonathan Long, allowed plaintiff to offer video viewings from tables and chairs in the
hallway across from the Student Services office on the upper level of Jewell Hall. On
November 5, 2013, plaintiff and an assistant presented videos to about 73 students and
distributed over 400 booklets without disrupting nearby classrooms or College
operations.
On January 14, 2015, plaintiff petitioned Long to use tables for two weeks
beginning January 28, in the same location as before. Despite calling the College,
plaintiff received no response, prompting him to petition Long again on January 26, this
time asking for the same table arrangement for February 2. On January 27, Long
responded by stating that plaintiff’s request would be granted subject to the following
limitations: it would be for a two-hour period, in the lower level of Jewell, and only on
February 4. Plaintiff had not requested the date of February 4 and would be out of town
that day. On January 28, plaintiff again requested that he be allowed to use the tables on
February 2, for about eight hours, in the same location as before. Long denied plaintiff’s
request on January 28. Plaintiff went to the College on February 2 and met with officials

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in an attempt to persuade them to let him use the area. While he was there, he saw that
the upper level of Jewell Hall was not in use.
When one of plaintiff’s grantors found out what had happened, it informed him
it was denying all of his pending and future grant requests.
On March 30, 2015, plaintiff petitioned Dr. Long’s supervisor, Dr. Michael Vitale,
the Vice President of Academic Services, for permission on April 7 to use the same
location he had used before. On April 1, 2015, the College’s Chief Compliance Officer
and Legal Counsel, Deryl Wynn, denied the request, explaining after the fact that he did
so because there were multiple activities scheduled for the requested date. On April 7,
plaintiff petitioned Wynn for permission to use the space on any other day of the week
of April 7. On April 10, plaintiff petitioned to use the space on April 15. Wynn did not
respond to either of these petitions.
On September 15, 2015, plaintiff emailed Wynn and other College officials asking
for permission to offer videos and distribute literature on September 22, using tables in
the same location as before. Long denied the request on September 18.
Plaintiff wants to distribute his materials in the same area he used previously. He
alleges that the College has no standards for approving or denying requests to use
College facilities for expressive activities, but instead vests absolute discretion in its
officials, which “amounts to viewpoint and subject matter discrimination on an ad hoc
basis.” He alleges the College arbitrarily and capriciously denied his petitions under
color of state law and thereby deprived him of First Amendment rights. He contends he
lost income and suffered other damages as a result.
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Plaintiff prays for a declaratory judgment finding that the First Amendment
protects his right to use the area in upper Jewell Hall for the distribution of booklets and
video screenings. He seeks injunctive relief preventing defendants from interfering with
these First Amendment rights. He seeks compensatory damages and fees and costs,
including attorney’s fees.
II. Standards governing motion to dismiss – Rule 12(b)(6).
A complaint must contain sufficient factual matter to “state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). Only a complaint that states a plausible claim for
relief survives a motion to dismiss. Id. at 679. “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.” Id. at 678. All well-pleaded
factual allegations in the complaint are accepted as true and viewed in the light most
favorable to the plaintiff for purposes of determining whether the complaint states a
plausible claim for relief. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009). See
Cunningham v. Wichita State Univ., No. 6:14-CV-01050-JTM, 2014 WL 4542411, at *2 (D.
Kan. Sept. 12, 2014), aff'd, 613 F. App'x 758 (10th Cir. 2015).
III. Discussion.
A. First Amendment claim.
“To determine when and to what extent the Government may properly limit
expressive activity on its property, the Supreme Court has adopted a range of
constitutional protections that varies depending on the nature of the government
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property, or forum.” Verlo v. Martinez, 820 F.3d 1113, 1129 (10th Cir. 2016). One such
property is a “designated public forum,” which is government property that has not
been traditionally regarded as a public forum, but which is intentionally opened up for
that purpose. Id. As far as the instant motion is concerned, defendants do not challenge
plaintiff’s allegation that the area of upper Jewell Hall he wants to use is a designated
public forum. Dkt. 21 at 10. 1
The government may impose reasonable time, place and manner regulations on
the use of a designated public forum, provided the restrictions: 1) are content-neutral; 2)
are narrowly tailored to serve a significant government interest; and 3) leave open
ample alternative channels of communication. Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45-46 (1983); Doe v. City of Albuquerque, 667 F.3d 1111, 1131 (10th Cir.
2012) (citations omitted). If the government imposes content-based restrictions, they
must be narrowly drawn to effectuate a compelling governmental interest. Perry, 460
U.S. at 45; Verlo, 820 F.3d at 1131. See also Doe, 667 F.3d at 1131 (quoting United States v.
Playboy Entertainment Grp., Inc., 529 U.S. 803, 816 (2000) (“When the Government
restricts speech, the Government bears the burden of proving the constitutionality of its
actions.”)).
Defendants first argue that plaintiff fails to state a claim for deprivation of First
Amendment rights because he does not allege “any facts supporting his conclusory

1 By contrast, a “limited public forum” exists where the government has reserved an area for certain
groups or for the discussion of certain topics. In a limited public forum, the government may exclude
speech if it is inconsistent with the purpose of the forum. See Rosenberger v. Rector and Visitors of Univ. of
Va., 515 U.S. 819, 829 (1995). See also Gilles v. Garland, 281 F. App’x 501, 511 (6th Cir. 2008) (following
“great weight of authority” finding open areas on public university campus to be limited public forums).

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statement that there was no governmental interest in Defendants Long or Wynn’s
decisions to deny his requests.” Dkt. 21 at 10. Defendants further contend the allegation
that defendants arbitrarily and capriciously denied plaintiff’s petitions is “devoid of
factual support.” Id. at 11. They also contend the claim is deficient because plaintiff does
not allege that the College’s alternative proposal was inadequate or that plaintiff was
treated differently than other individuals.
The court rejects these arguments. Plaintiff has adequately alleged factual
support for his claim that no governmental interest was served by defendants’ denial of
his petitions to use upper Jewell Hall. He alleges facts indicating that his petitions to use
the area were sometimes ignored (¶¶ 23, 24, 35, 36), on other occasions they were
denied without explanation (¶¶ 28, 38), and on at least one occasion the College
imposed seemingly arbitrary conditions without explanation (e.g., 2-hour permission,
on a date not requested, in a different area) and denied his request to use upper Jewell
Hall despite the fact that the area was not being used that day (¶ 30). Plaintiff has
alleged facts indicating that the College’s proposed alternative was inadequate because
the time was too restricted and because it did not allow him to effectively reach
students. He has alleged that his prior use of upper Jewell caused no disturbance or
disruption in the College’s operations. Plaintiff has also alleged that the College has no
standards for approval or denial of requests to use facilities for expressive purposes,
and that requests are judged on an ad hoc basis by officials with “absolute, standardless
discretion.” Cf. City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 764 (1988) (“even if
the government may constitutionally impose content-neutral prohibitions on a
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particular manner of speech, it may not condition that speech on obtaining a license or
permit from a government official in that official's boundless discretion”).
Assuming the truth of plaintiff’s allegations that the College has no standards for
granting or denying petitions, that it does not otherwise set forth neutral time, place or
manner restrictions, and that defendants denied several of his petitions without
explanation or simply ignored them, plaintiff can hardly be faulted for failing to be
more specific as to the absence of a governmental interest justifying denial of his
requests. Plaintiff has alleged facts that could support a finding that his petitions have
been denied under a practice or custom that grants unbridled discretion to College
officials, that his petitions have been arbitrarily denied without furthering a
governmental interest, and that his alternative channels of communication are
inadequate. Drawing all reasonable factual inferences in plaintiff’s favor, he has alleged
a plausible claim for deprivation of his First Amendment rights under color of state
law.2
B. Official capacity claims.
Defendants next argue that plaintiff’s official capacity claims against the College
must be dismissed because plaintiff has not alleged “that any of the denials by [College]
officials, and more specifically by Defendants Long and Wynn, were based on the
subject matter of Mr. Hershey’s materials.” Dkt. 21 at 16. Defendants further argue that

Defendants do not argue that the College is not a “person” within the meaning of 42 U.S.C. § 1983 or
that the actions of College officials were not taken under color of state law.
2

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the claims are deficient because plaintiff does not allege “what role the Board of
Trustees had in implementing policies for on campus distribution of materials.” Id.
As plaintiff points out, he has alleged that he was denied access to a public
forum “for unstated reasons, in accordance with no policy, and at the absolute
discretion of College officials.” Dkt. 1, ¶ 50. He alleges that the College “has no policy to
specify any standards by which College officials approve or deny requests,” and that
the College “vests absolute, standardless discretion in College officials” to allow or
deny requests to use facilities for expressive activities. Id. ¶¶ 41, 42. Additionally, he
alleges that the Board of Trustees and defendants Long and Wynn were acting as
policymakers for the College at all relevant times. Finally, plaintiff has spelled out how
a municipal policy or custom – in this instance, the absence of any standards governing
exercise of discretion on requests to use College facilities – caused the deprivation of
First Amendment rights alleged in the complaint.
Because plaintiff has alleged that access to the public forum is based on
“standardless discretion” of College officials, he need not show that he was
discriminated against based on the content of his materials. “A government regulation
that allows arbitrary application is ‘inherently inconsistent with a valid time, place, and
manner regulation because such discretion has the potential for becoming a means of
suppressing a particular point of view.’” Forsyth Cty., Ga. v. Nationalist Movement, 505
U.S. 123, 130 (1992) (cite omitted). Government regulation of access to a public forum
must have definite standards because “if the permit scheme involves appraisal of facts,
the exercise of judgment, and the formation of an opinion by the licensing authority, the
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danger of censorship and of abridgment of … First Amendment freedoms is too great to
be permitted.” Id. at 131 (internal quotation marks and citations omitted); Heffron v. Int'l
Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981) (awarding space on a firstcome, first-served basis “is not open to the kind of arbitrary application that this Court
has condemned as inherently inconsistent with a valid time, place, and manner
regulation because such discretion has the potential for becoming a means of
suppressing a particular point of view.”)
Plaintiff has also adequately alleged the existence of a municipal policy or
custom giving rise to liability under 42 U.S.C. § 1983. A municipal policy may be shown
by an informal custom amounting to a widespread practice that is so permanent and
well settled as to constitute a custom or usage. See Bryson v. City of Okla. City, 627 F.3d
784, 788 (10th Cir. 2010). To withstand a motion to dismiss on such a theory, a plaintiff
must allege: 1) the existence of a continuing, persistent and widespread practice of
unconstitutional misconduct by the municipality’s employees; 2) deliberate indifference
to or tacit approval of such misconduct by the municipality’s policymaking officials
after notice to the officials of that particular misconduct; and 3) that the plaintiff was
injured by virtue of the unconstitutional acts pursuant to the custom, with the custom
being the “moving force” behind the acts. Gates v. Unif. Sch. Dist. No. 449, 996 F.2d 1035,
1041 (10th Cir. 1993). Viewed in the light most favorable to plaintiff, the complaint
alleges the existence of a persistent custom of vesting absolute discretion in College
officials to grant or deny access to the public forum, knowledge of and tacit approval of
the impermissible practice by College policymakers, and injury to plaintiff caused by
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the custom. Defendants’ motion to dismiss the claim against the College is therefore
denied.
C. Qualified immunity.
Defendants Long and Wynn assert the defense of qualified immunity to the
claim against them in their individual capacities. They challenge whether plaintiff has
alleged the violation of a constitutional right and whether the right was clearly
established at the time. Dkt. 21 at 18-19. The court has already determined above that
plaintiff has properly alleged the violation of a constitutional right.
Under § 1983, however, a public official is only liable for his own misconduct.
Although plaintiff has alleged that Long and Wynn were “policymakers” for the
College, and that each of them applied the policy on at least one occasion, plaintiff has
not alleged or shown that Long and Wynn were personally responsible for the allegedly
unconstitutional policy that caused his injury. “Absent vicarious liability, each
Government official, his or her title notwithstanding, is only liable for his or her own
misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Long and Wynn may indeed
each be a policymaker, but there is no allegation that either of them was responsible for
or had final authority with respect to the College’s policy on granting access. “[T]he
authority to make municipal policy is necessarily the authority to make final policy.”
City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Absent a showing that Long or
Wynn had final policymaking authority, plaintiff has failed to show that they bear
personal liability for the College’s allegedly unconstitutional policy of giving officials
unbridled discretion to grant or deny requests for access. Iqbal, 556 U.S. at 676 (“a
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plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution”); Mason v. Wolf, 356 F.Supp.2d 1147,
1162 (D. Colo. 2005) (individual who devised the regulation that was applied to plaintiff
was “personally and centrally involved” in the violation); Kanelos v. County of Mohave,
893 F.Supp.2d 1001, 1009 (D. Az. 2012) (official could be liable because “he drafted and
enacted” the unlawful policy). Accordingly, the court will grant the motion to dismiss
the claims against Long and Wynn in their personal capacities.
IV. Motion for preliminary injunction.
Plaintiff has moved for a preliminary injunction prohibiting the defendants from
interfering with his alleged “right to engage in peaceable distribution of booklets in the
hallways and lobby of upper Jewell and offer personal video screenings in the hallways
of upper Jewell.” Dkt. 6 at 7. Subsequent to the filing of the motion, defendants asserted
that “[t]he location that the Plaintiff seeks to espouse his views is and has been under
construction such that even if the Court were to entertain his request for injunctive
relief the Defendants could not comply with any order compelling them to give Plaintiff
access.” Dkt. 22. Based on that assertion, which is supported by an affidavit, defendants
moved for a stay of the proceedings until the court rules on the motion to dismiss.
Although the request for stay is moot now that the court has ruled on the motion to
dismiss, plaintiff’s response apparently concedes that upper Jewell is currently under
construction. Dkt. 23 at 12. Given the uncontested fact that the relief requested by the
motion is currently precluded, the court will deny plaintiff’s motion for a preliminary
injunction, without prejudice to refiling the motion at a later date.
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IT IS THEREFORE ORDERED this 17th day of February, 2017, that defendants’
Motion to Dismiss (Dkt. 20) is GRANTED IN PART and DENIED IN PART. Plaintiff’s
claim against defendants Long and Wynn in their individual capacities is DISMISSED;
defendant’s motion to dismiss the claims is otherwise denied.
IT IS FURTHER ORDERED that plaintiff’s Motion for Preliminary Injunction
(Dkt. 5) is DENIED without prejudice to refiling; and that defendants’ Motion to Stay
(Dkt. 22) is DENIED.
___s/ J. Thomas Marten______
J. THOMAS MARTEN, JUDGE

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