Hirt et al v. Unified School District No. 287 et al

Filing 62

MEMORANDUM AND ORDER denying 43 Motion for Reconsideration. See Order for details. Signed by Chief District Judge Julie A Robinson on 12/28/17. Mailed to pro se party Eric S. Clark and Gene Hirt by regular mail. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GENE HIRT, ET AL.,
Plaintiffs,
v.

Case No. 17-CV-02279-JAR-GLR

UNIFIED SCHOOL DISTRICT NO. 287, ET
AL.,
Defendants.

MEMORANDUM AND ORDER
Plaintiffs Gene Hirt and Eric Clark, proceeding pro se, bring this action against
Defendants Unified School District No. 287 and Superintendent Jerry Turner, in his individual
capacity,1 seeking injunctive, declaratory, and monetary relief (1) pursuant to 42 U.S.C. § 1983
for Defendants’ alleged violation of their rights under the First, Fifth, and Fourteenth
Amendments, and (2) for Defendants’ alleged violation of the Kansas Open Meetings Act and
the Kansas Open Records Act. On October 23, 2017, the Court issued a Memorandum and
Order denying as moot Plaintiffs’ Motion for a Preliminary Injunction.2 This matter now comes
before the Court on Plaintiffs’ Motion for Reconsideration of that order (Doc. 43). The motion
is fully briefed and the Court is prepared to rule. For the reasons set forth below, the Court
denies Plaintiffs’ motion.

1

On November 9, 2017, Plaintiffs stipulated to the dismissal without prejudice of their claims against
individual U.S.D. No. 287 school board members in their official capacities. Thus, Defendants Curt Altic, Rusty
Ecord, Blaine Flory, Matt Frogate, and Ryan Sink, who were sued only in their official capacities, were completely
dismissed from this case. While Plaintiffs’ claims against Superintendent Jerry Turner in his official capacity were
also dismissed, Plaintiffs’ claims against Turner in his individual capacity remain pending.
2

Doc. 41.

I.

Procedural and Factual Background
The factual background underlying the parties’ dispute and Plaintiffs’ motion for a

preliminary injunction is set forth in detail in the Court’s prior order and will not be repeated at
length here. In short, Plaintiffs Hirt and Clark are residents of Pomona and Williamsburg,
Kansas, respectively, and both cities are within the area served by Unified School District No.
287. Plaintiffs contend that Defendant Jerry Turner, the Superintendent of Schools for U.S.D.
No. 287, banned Hirt from school property by letter dated July 13, 2015, following a namecalling incident after a school board meeting. Turner’s letter stated that Hirt was no longer
allowed on school property due to his “inability to express [himself] in a civil and socially
acceptable manner.”3 Since Hirt’s receipt of that letter, neither Hirt nor Clark has attended any
school board meetings. Clark claims that he has become fearful that he, like Hirt, will be banned
from school property if he expresses himself without reservation at school board meetings. In
August 2015, Hirt was escorted off school property by the county sheriff when he and Clark
attended an open house at the Williamsburg Elementary School. Plaintiffs filed this case
approaching two years later on May 16, 2017, and sought a preliminary injunction ordering that:
(1) “the Defendants shall not enforce the ad hoc ‘socially acceptable manner’ policy,” and (2)
“the Defendants shall not take adverse action against Plaintiff Hirt based on the July 13, 2015
letter provided to Hirt.”4
Defendants contend that Hirt has a significant history of disrupting school board meetings
by uttering obscenities outside the time allotted for public comment, and that he has made
numerous unauthorized visits to school property during school hours—despite having no
children or other family members enrolled as students—that have caused disruptions and safety
3

Doc. 1-1.

4

Doc. 4 at 11.

2

concerns. Defendants sought several extensions of time to respond to Plaintiffs’ motion for a
preliminary injunction. In their second request for more time on June 14, 2017, Defendants
stated:
Defendant Turner placed a letter in the mail to Plaintiff Hirt
today which permits Hirt to attend public meetings on
District premises. The letter to Plaintiff Hirt moots most if
not all of the motion for preliminary injunction.
Defendants’ counsel need additional time to evaluate the
effect of this development on the motion for preliminary
injunction and complete an appropriate response.5
Defendants then responded to Plaintiffs’ motion for a preliminary injunction on June 19, 2017,
arguing that the motion was moot because Defendants had “withdrawn any restriction from Hirt
attending Board meetings or other District events to which the general public is invited . . . .”6
On June 21, 2017, the Court issued an order directing Plaintiffs to show good cause in
writing, on or before July 5, 2017, why their motion for a preliminary injunction should not be
found moot.7 On June 26, 2017—nine days before Plaintiffs’ response to the Court’s showcause order was due—Defendants filed an Amended Response in Opposition to Plaintiffs’
Motion for Preliminary Injunction.8 Defendants’ amended opposition made the same arguments
with respect to mootness as their original response, but attached a declaration by Turner and the
June 14, 2017 letter from Turner to Hirt that had been omitted from their original opposition.
On the same date, Plaintiffs responded to the Court’s show-cause order in an eight-page
brief on the issue of mootness. While Plaintiffs acknowledged that Hirt had received a letter
from Turner, they stated that Hirt had “misplaced the letter (potentially thrown away with a

5

Doc. 14 at 1.

6

Doc. 16 at 1.

7

Doc. 19.

8

Doc. 20.

3

newspaper by accident) and cannot recall verbatim what all of the text of that letter provided.”9
Despite complaining that Turner’s letter to Hirt was not in the record, Plaintiffs were able to
make essentially the same mootness arguments that they assert now in their motion for
reconsideration, i.e., that Turner’s letter did not “fully remedy all ongoing infringements of
fundamental” rights.10 Plaintiffs stated that they intended to “briefly” show good cause why
their motion was not moot, and asked for “the Court’s patience in awaiting Plaintiffs’ Reply brief
to Defendants’ opposition . . . brief.”
Three days later, on June 29, 2017, Plaintiffs filed their Reply to Defendants’ Response
in Opposition to Plaintiffs’ Motion for Preliminary Injunction, once again arguing that “the
described alleged letter of June 14, 2017 to Hirt does not alleviate all unlawful restrictions on
Plaintiffs’ First Amendment rights.”11 Plaintiffs asked that if the Court decided to accept
Defendants’ belatedly filed amended opposition, that the Court also allow “additional briefing
including affidavits concerning dispute of any of the newly asserted [sic] in the Declaration or
letter.”12 The Court declined to allow additional briefing and denied Plaintiffs’ motion for a
preliminary injunction as moot on October 23, 2017.
II.

Legal Standard
D. Kan. Rule 7.3(b) governs motions to reconsider non-dispositive orders. Under that

rule, a party may seek reconsideration on the following grounds: (1) an intervening change in the
controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or
prevent manifest injustice.13 While a motion to reconsider is available where the court has
9

Doc. 23 at 3.

10

Id. at 4.

11

Doc. 24 at 8.

12

Id.

13

D. Kan. R. 7.3(b).

4

“misapprehended the facts, a party’s position, or the controlling law,” such a motion does not
permit a party to “revisit issues already addressed or to advance arguments that could have been
raised in prior briefing.”14 “The Tenth Circuit has observed that ‘a motion for reconsideration is
an extreme remedy to be granted in rare circumstances.’”15 “A party’s failure to present its
strongest case in the first instance does not entitle it to a second chance in the form of a motion to
reconsider.”16 Whether to grant a motion for reconsideration is left to the court’s discretion.17
Because Plaintiffs proceed pro se, the Court must construe their filings liberally and hold
them to a less stringent standard than formal pleadings drafted by attorneys.18 However, the
Court “cannot take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.”19 The requirement that the court must read a pro se
plaintiff’s pleadings broadly stops “at the point at which [the court] begins to serve as [the
plaintiff’s] advocate,”20 and a plaintiff’s pro se status does not excuse him from complying with
federal and local rules.21

14

Coffeyville Res. Ref. & Mktg., LLC v. Liberty Surplus Ins. Corp., 748 F. Supp. 2d 1261, 1264 (D. Kan.
2010) (citing Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (addressing motion under Fed. R.
Civ. P. 59(b)).
15

A.H. ex rel. Hohe v. Knowledge Learning Corp., Civil Action No. 09-2517-DJW, 2011 WL 1466490, at
*4 (citing Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995)).
16

Id. (citing Sithon Mar. Co. v. Holiday Mansion, 177 F.R.D. 504, 505 (D. Kan. 1998); see also Turner v.
Nat’l Council of State Bds. of Nursing, Civil Action No. 11-2059-KHV, 2013 WL 139750, at *2 (D. Kan. Jan. 10,
2013) (citing Cline v. S. Star Cent. Gas Pipeline, Inc., 370 F. Supp. 2d 1130, 1132 (D. Kan. 2005), aff’d, 191 F.
App’x 822 (10th Cir. 2006)).
17

Coffeyville, 748 F. Supp. 2d at 1264 (citing In re Motor Fuel Temp. Sales Practices Litig., 707 F. Supp.
2d 1145, 1166 (D. Kan. 2010)).
18

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21

19

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (citing Hall, 935 F.2d at

(1972)).
1110).
20

United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (citing Hall, 935 F.2d at 1110); see also
Olson v. Carmack, 641 F. App’x 822, 826 (10th Cir. 2016) (unpublished).
21

Barnes v. United States, 173 F. App’x 695, 697–98 (10th Cir. 2006) (citing Ogden v. San Juan Cty., 32
F.3d 452, 455 (10th Cir. 1994); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).

5

III.

Analysis
In more than 30 pages of briefing on their motion for reconsideration, Plaintiffs contend

that a variety of errors and deficiencies in the Court’s October 23, 2017 Order warrant a different
outcome on the issue of mootness. In their reply in support of their motion for reconsideration,
Plaintiffs clarify that they have five essential arguments, though it appears to the Court that
several of these arguments are restatements or variations of the same issue. The Court will
address each argument in turn.
First, Plaintiffs contend that the Court’s failure to allow them more time and more
briefing to address the mootness issue following the filing of Defendants’ amended opposition
amounts to plain error and a violation of due process. The Court has already considered and
rejected Plaintiffs’ argument that Defendants’ amended opposition should be disregarded, or that
Plaintiffs should be permitted another opportunity to respond. In its October 23, 2017 Order, the
Court expressly addressed Plaintiffs’ complaint about Defendants’ amended opposition, stating
in a footnote:
Plaintiffs contend in their Reply to Defendants’ Response
in Opposition to Plaintiffs’ Motion for Preliminary
Injunction that the Court should disregard Defendants’
Amended Response in Opposition to Plaintiffs’ Motion for
Preliminary Injunction, which Defendants filed on June 26,
2017—a week after submitting their original opposition
and the same day that Plaintiffs responded to the Court’s
show cause order. Defendants’ two briefs make the same
arguments concerning mootness. The primary difference is
the addition of Turner’s Declaration and the attachment of
Turner’s June 14, 2017 letter to Hirt. Plaintiffs responded
to Turner’s declaration in their reply, filed June 29, 2017,
and have had the opportunity to fully brief the mootness
issue. Further, the Court had already ordered Plaintiffs to
show cause on the mootness issue prior to receiving
Defendants’ amended opposition. Thus, the Court finds no

6

prejudice to Plaintiffs in considering Defendants’ amended
opposition and the attachments thereto.22
The Court declines to reconsider this finding. Plaintiffs do not dispute that Hirt received
the July 14, 2017 letter upon which the Court’s mootness ruling is based, and Plaintiffs had an
opportunity to fully brief the mootness issue prior to the Court’s ruling—as evidenced by the fact
that the mootness arguments they make in their motion for reconsideration are not meaningfully
different from those they set forth in their response to the Court’s show cause order almost six
months ago. The Court therefore finds that it did not commit clear error in finding Plaintiffs’
motion for a preliminary injunction moot without permitting Plaintiffs the opportunity for further
argument.
Second, Plaintiffs argue that the Court’s mootness finding was based on “an errant
inference (insufficient evidence) which lead to an errant, necessarily implied, finding of fact.”23
Plaintiffs complain that the Court must have impermissibly inferred that following Turner’s
letter: (1) Plaintiffs are no longer subject to any restrictions; (2) Plaintiffs are no longer subject to
any restrictions from which they sought relief; or (3) if any restrictions remain in place, they are
not based on Defendants’ “socially acceptable manner” policy. Plaintiffs argue at length about
due process and the lack of evidence to support “various factual conclusions necessary for the
court to make the conclusion of law that the motion was moot.”24

The Court has not

misperceived the facts at issue here. Mr. Hirt was completely forbidden to be on U.S.D. No. 287
property, and now he is not. Mr. Hirt is once again permitted to attend any meetings or events to
which the public is invited. In its order, the Court stated that:

22

Doc. 41 at 6 n.29 (docket citations omitted).

23

Doc. 44 at 8.

24

Id. at 10–11.

7

Defendants are no longer asking Hirt to conform to a
standard of socially acceptable expression, but merely to
confine his verbal participation in meetings to the threeminute window for patron comments that applies to all
members of the public. According to Plaintiffs’ motion for
a preliminary injunction, this is precisely the type of
conduct in which they wish to engage. Plaintiffs state that
but for the lack of an injunction, they would attend “school
board meetings to speak during the public forum section of
the meetings.” Thus, Plaintiffs are suffering no continuing
adverse effects that would warrant the Court exercising its
discretion to provide injunctive relief.25
Plaintiffs emphasize in their motion for reconsideration—as they did in their prior
briefing—that Hirt remains restricted from being on school property during school hours unless
attending an event to which the public is invited. However, Plaintiff’s motion for a preliminary
injunction did not expressly seek the right to assemble on school grounds. Rather, Plaintiffs
sought an order forbidding Defendants’ enforcement of their purported policy requiring “socially
acceptable” behavior,26 and Defendants’ latest communication to Hirt does not include that
restriction. Again, in their motion for a preliminary injunction, Plaintiffs stated that “[b]ut for
lack of an injunction against Defendants from taking adverse action against Plaintiff Hirt based
on the July 13, 2015 letter provided to Hirt . . . in violation of his First Amendment rights,
Plaintiff Hirt would enter onto U.S.D. 287 District property for the purpose of attending school
board meetings,” and “[b]ut for lack of an injunction against Defendants enforcing its [sic] ad
hoc ‘socially acceptable manner’ policy, Plaintiff Clark would exercise his First Amendment
rights by attending school board meetings to speak during the public forum section of the

25

Doc. 41 at 9–10. The Court stated in its order that it was “not passing judgment on the constitutionality
of any school board policy, past or present, on speech permitted at U.S.D. No. 287 meetings. Rather, the Court finds
that the ‘socially acceptable manner’ restrictions from which Plaintiffs sought injunctive relief are no longer in
effect.” Id. at 9 n.47.
26

Doc. 4 at 11.

8

meetings.”27 Following Turner’s July 14, 2017 letter, Hirt is once again permitted to attend
school board meetings, and Clark has never been forbidden from doing so. The Court finds that
it did not commit clear error in analyzing the facts underlying its finding of mootness.
Third, Plaintiffs argue that the Court’s “finding of mootness was based, in part, on an
errant finding that the injury was speculative rather than actual injury-in-fact.”28 Plaintiffs
contend that contrary to this Court’s finding that any harm they might suffer in the absence of an
injunction is speculative, they are suffering actual, ongoing injury because Hirt wishes to visit
school buildings during the school day, but cannot do so under the terms of Turner’s letter which
permits Hirt to attend only U.S.D. No. 287 events to which the general public is invited. This
argument is repetitive of Plaintiffs’ arguments discussed above and, further, Plaintiffs offer no
support for their contention that Hirt is prohibited from being on school grounds outside of
public events due to the continuation of the Defendants’ policy requiring “socially acceptable”
behavior. As noted, Plaintiffs sought relief from Defendants’ “socially acceptable manner”
policy, and have not shown the Court that they are suffering any actual injury due to the
continuation of that policy. Again, the Court finds that it did not err in finding Plaintiff’s motion
for a preliminary injunction moot based, in part, on a finding that any injury Plaintiffs might
suffer in the absence of an injunction is merely speculative.
Fourth, Plaintiffs contend that “the finding of mootness was based, in part, on an
improper construction of what relief was being sought by the pro se plaintiffs.”29 Plaintiffs
contend that because they are pro se litigants, it was clear error for the Court to “construe a

27

Id. at 4 (emphasis added).

28

Doc. 44 at 12.

29

Id. at 14.

9

request for broad relief by a pro se party as requesting only narrow specific relief . . .”30 Further,
Plaintiffs contend that the Court should have been able to “intuit from their filings the
appropriate legal claims or procedural devices that pro se litigants would have expressly invoked
had they been counseled.”31 In essence, this line of argument once again attacks the Court’s
finding of mootness on the grounds that the Court failed to properly consider that Hirt is still not
permitted to be on school district property other than at public events. As set forth above,
Plaintiffs sought relief from Defendants’ policy requiring “socially acceptable” behavior, not an
order requiring U.SD. No. 287 to open its property to Hirt without limitation. While the Court
agrees that pro se litigants’ pleadings are to be liberally construed, the Court is not obligated to
make Plaintiffs’ arguments for them or to read a request for a preliminary injunction to seek
something more than it expressly states.32 The Court finds that it did not commit clear error in
construing the relief sought.
Fifth, and finally, Plaintiffs argue that “the finding of mootness was based, in part, on the
errant conclusion that Defendants’ burden of showing mootness by voluntary cessation was met
and the burden was improperly shifted from Defendants to Plaintiffs.”33 Plaintiffs complain that
Turner’s letter permitting Hirt to once again attend school board meetings—provided that he
“refrain from any disruptive behavior and limit [his] participation in the meetings to the allotted
three minutes for public comments”—is insufficient evidence that Defendants no longer intend
to enforce a “socially acceptable” behavior policy. The Court disagrees. Again, as stated in the
Court’s prior order, Defendants are no longer requiring Hirt to “express himself in a ‘socially
30

Id.

31

Id.

32

See, e.g., Olson v. Carmack, 641 F. App’x 822, 826 (10th Cir. 2016) (unpublished) (noting that while
courts must construe pro se filings liberally, they may not undertake the role of advocate).
33

Doc. 44 at 19.

10

acceptable manner.’”34

Rather, Defendants merely require Hirt to “confine his verbal

participation in meetings to the three-minute window for patron comments that applies to all
members of the public.”35
The Court has already thoroughly considered and ruled on the issue of mootness with
respect to the relief that Plaintiffs sought in their motion for a preliminary injunction, finding that
Turner’s letter was sufficient to establish prudential mootness of Plaintiffs’ motion for a
preliminary injunction while the underlying dispute between the parties remains before the
Court. The arguments Plaintiffs advance in their motion for reconsideration are, by and large,
arguments that the Court has already considered and rejected. The Court finds that it has not
misapprehended the facts, Plaintiffs’ position, or the controlling law. Accordingly, Plaintiffs’
motion for reconsideration is denied.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for
Reconsideration (Doc. 43) is denied.
IT IS SO ORDERED.
Dated: December 28, 2017

S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT
JUDGE

34

Doc. 41 at 9.

35

Id.

11