Parents, Families, and Friends of Lesbians and Gays, Inc. et al v. Camdenton R-III School District et al

Filing 34

SUGGESTIONS in support re 33 MOTION to dismiss case filed by Elizabeth A. Helfrich on behalf of Defendants Camdenton R-III School District, Timothy E. Hadfield. (Attachments: # 1 Exhibit Hadfield Affidavit, # 2 Exhibit Cowen Affidavit)(Related document(s) 33 ) (Helfrich, Elizabeth)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
PARENTS, FAMILIES, AND FRIENDS
OF LESBIANS AND GAYS, INC., et al.,
Plaintiffs,
v.
CAMDENTON R-III SCHOOL
DISTRICT, et al.,
Defendants.

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Case No. 2:11-cv-04212

DEFENDANTS’ SUGGESTIONS IN SUPPORT OF THEIR MOTION TO DISMISS
PLAINTIFFS’ FIRST AMENDED COMPLAINT WITH PREJUDICE

00013670.1

TABLE OF CONTENTS
Table of Contents ............................................................................................................................ i
Table of Authorities ....................................................................................................................... ii
Introduction .................................................................................................................................... 1
Standard of Review ........................................................................................................................ 1
Argument ....................................................................................................................................... 2
I.

Plaintiffs Lack Standing to Bring this Lawsuit ............................................................ 4
A. The Organizational Plaintiffs Lack Standing to Bring this Lawsuit Because They
have No Constitutional Right to Access Public School Students .......................... 4
B. The Organizational Plaintiffs Lack Standing to Bring this Lawsuit Because They
Have Suffered No “Injury In Fact” ........................................................................ 6
C. Plaintiff Jan Doe Lacks Standing to Bring Claims as she has not Plead a
Particularized “Injury-In-Fact” .............................................................................. 7

II.

Plaintiffs’ Claims are Moot .......................................................................................... 9

III. Plaintiffs’ Claims Asserted Under 42 U.S.C. Section 1983 Against Defendant
Hadfield In His Official Capacity Must Be Dismissed As Redundant Against The
District........................................................................................................................ 10
IV. Count III, Asserting a 42 U.S.C. § 1983 Claim against Defendant Hadfield in his
Personal Capacity Must Be Dismissed as Defendant Hadfield was Acting in
Accordance with Federal Law ................................................................................... 11
V.

Counts I and III, Asserting a 42 U.S.C. § 1983 Claim Against the District Must Be
Dismissed as the District Does Not Have a Custom and Policy Which Violated the
Rights of Plaintiffs ..................................................................................................... 12

Conclusion ................................................................................................................................... 13

00013670.1

i

TABLE OF AUTHORITIES
Cases 
Artis v. Francis Howell North Band Booster Association, Inc., 161 F.3d 1178
(8th Cir. 1998)......................................................................................................................11, 12
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982) ................ 5
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................... 2
Benton v. Merrill Lynch & Co., 524 F.3d 866 (8th Cir. 2008)........................................................ 2
Besette v. AT &T Corp., 2006 WL 2927561 (W.D. Mo 2006) ....................................................... 9
Burke v. Barnes, 479 U.S. 361 (1987) ............................................................................................ 3
Case v. Unified Sch. Dist. No. 233, 908 F. Supp. 864 (D. Kan. 1995) ........................................... 5
Counts v. Cedarville Sch. Dist., 295 F. Supp. 2d 996 (W.D. Ark. 2003) ....................................... 5
County of Mille Lacs v. Benjamin, 361 F. 3d 460 (8th Cir. 2004) (citing U.S. Const.
art. III § 2 cl. 1) ............................................................................................................................1
Crooks v. Lynch, 557 F.3d 846 (8th Cir. 2009) ............................................................................ 13
Doe ex rel. Doe v. Sch. Dist. City of Norfolk, 340 F.3d 605 (8th Cir. 2003) ................................ 13
Harlow v. Fitzgerald, 457 U.S. 800 (1982) .................................................................................. 11
Heinkel v. Sch. Bd. of Lee Cnty Fl., 194 Fed. Appx. 604 (11th Cir. 2006) .................................... 9
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................................... 7
Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521 (5th Cir. 1996) ............................. 13
North Carolina v. Rice, 404 U.S. 244 (1971) ................................................................................. 9
Osborn v. U.S., 918 F.2d 724 (8th Cir. 1990) ................................................................................. 2
Porus Media Corp. v. Pall Corp., 186 F. 3d 1077 (8th Cir. 1999) ............................................... 13
Preiser v. Newkirk, 422 U.S. 395 (1975) ........................................................................................ 1
Princeton University v. Schmid, 455 U.S. 100 (1982) .................................................................... 9
Rolscreen Co. v. Pella Products of St. Louis, Inc., 64 F.3d 1202 (8th Cir.1995) ........................... 9
Saucier v. Katz, 533 U.S. 194 (2001) ........................................................................................... 12
00013670.1

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Sheck v. Baileyville Sch. Comm., 530 F. Supp. 679 (D. Me. 1982) ................................................ 5
Smith v. St. Louis Housing Authority, 132 F. Supp. 2d 780 (E.D. Mo 2001) ..................... 3, 4, 6, 7
Stutzka v. McCarville, 420 F.3d 757 (8th Cir. 2005) .................................................................... 13
United States v. American Library Association, Inc. et al., 539 U.S. 194 (2003) .................... 5, 12
Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989) ......................................................... 10
Young v. City of St. Charles, 244 F. 3d 623 (8th Cir. 2001) (citing Neitzke v. Williams,
490 U.S. 319 (1989)) ...................................................................................................................2

Statutes 
42 U.S.C. § 1983 ...................................................................................................... 7, 10, 11, 12 13
47 U.S.C. § 254 (h)(5)(B) ............................................................................................................... 2

Rules 
Fed. R. Civ. P. 12(b)(1)................................................................................................................... 1
Fed. R. Civ. P. 12(b)(6)......................................................................................................... 1, 2, 13

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COME NOW Defendants Camdenton R-III School District (“District”) and Timothy E.
Hadfield, in his individual and official capacity, by and through their undersigned counsel, and
pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), hereby submit their
Suggestions in Support of their Motion to Dismiss Plaintiffs’ First Amended Complaint with
Prejudice. In support of their Motion, Defendants state as follows:
Introduction
The Camdenton R-III School District complies with federal law requiring the protection
of children from harmful material on the Internet. The District also respects the rights of its
students to receive information and does not discriminate, nor tolerate discrimination, against its
students.
For the reasons stated herein, Plaintiffs lack standing to assert their claims against the
District, their claims have been rendered moot, and they face insuperable bars to recovery.
Accordingly, this lawsuit must be dismissed with prejudice.
Standard of Review
Federal Rule of Civil Procedure 12(b)(1) permits the Court to dismiss a complaint for
lack of subject matter jurisdiction. This case must be dismissed as no live case or controversy
exists between the parties and thus, this Court does not have jurisdiction over this matter.
“Federal courts only have jurisdiction to hear actual cases and controversies.” County of Mille
Lacs v. Benjamin, 361 F. 3d 460, 463 (8th Cir. 2004) (citing U.S. Const. art. III § 2 cl. 1). The
requirement that a case involve an actual, ongoing controversy extends throughout the pendency
of an action. See Preiser v. Newkirk, 422 U.S. 395, 401 (1975).

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Federal Rule of Civil Procedure 12(b)(6) permits the Court to dismiss a complaint for
failure to state a claim upon which relief can be granted. To survive a motion to dismiss, the
complaint must contain enough allegations of fact “to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Where the allegations show on
the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is
appropriate.” Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008). “[D]ismissal
under Rule 12(b)(6) serves to eliminate actions which are fatally flawed in the legal premises and
designed to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity.”
Young v. City of St. Charles, 244 F. 3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams, 490
U.S. 319, 326-27 (1989)).
Argument
The District is required under the Children’s Internet Protection Act (“CIPA”) to block
online images that constitute obscenity, child pornography, and material that is “harmful to
minors”. 47 U.S.C. § 254 (h)(5)(B). In order to comply with CIPA, the District blocks certain
categories of web material through the use of customized Internet filtering software.

See

Affidavit1 of Defendant Timothy E. Hadfield (“Hadfield Aff.”) at ¶ 5, attached hereto as Exhibit
A, and incorporated herein by reference; see also Affidavit of Randal Cowen (“Cowen Aff.”) at
¶ 6, attached hereto as Exhibit B, and incorporated herein by reference. One of the categories
which the District blocks is web material that falls under the category of “sexuality”. See
Hadfield Aff. at ¶ 6; Cowen Aff. at ¶ 7. This category is intended to capture inappropriate
material not captured by the District’s filters which block pornography and adult material. See
1

As Defendants are challenging the subject matter jurisdiction of this Court pursuant to FRCP
12b(1), the Court can consider matters raised outside of the pleadings. See, e.g., Osborn v. U.S.,
918 F.2d 724 (8th Cir. 1990).

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Hadfield Aff. at ¶ 7; Cowen Aff. at ¶ 8. The District does not block the categories of “LGBT”,
“Gay or Lesbian or Bisexual Interest,” “Alternative Lifestyles”, or “Social Issues”. See Hadfield
Aff. at ¶ 8; Cowen Aff. at ¶ 9.
Due to the dynamic nature of the Internet, some websites which are appropriate for
access by District students are blocked by the filtering software. Accordingly, the District has
had a practice in place since 2004 which allows students to make an anonymous electronic
request that a website which has been blocked by the filter be unblocked for access by District
students. See Hadfield Aff. at ¶ 10; Cowen Aff. at ¶ 14. To further ensure an easy and
discernable process is in place for students to request that particular websites be unblocked, the
District’s Board of Education revised its Board Policies to clarify its practices and to provide
alternative avenues for District students and employees to make requests for access to particular
websites. See Hadfield Aff. at ¶ 13, and action of the Board of Education attached thereto as
Exhibit 1 and Board Policies EHB-AP and IIAC-R attached thereto as Exhibit 2.
The Plaintiffs in this lawsuit cannot demonstrate that a live case or controversy exists in
this matter in order to challenge the District’s practices and procedures regarding how it filters
material on the Internet. Article III of the United States Constitution “requires that there be a
live case or controversy at the time that a federal court decides the case.” Burke v. Barnes, 479
U.S. 361, 363 (1987). The case or controversy limitation requires a plaintiff to have standing to
bring an action in federal court and a dispute that is not moot. Smith v. St. Louis Housing
Authority, 132 F. Supp. 2d 780 (E.D. Mo 2001). Plaintiffs cannot demonstrate that they have
standing in this matter or that an actual, not conjectural, dispute exists between the parties.
Further, Plaintiffs have failed to state a claim upon which relief can be granted, and thus, this
matter must be dismissed with prejudice.

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I.

Plaintiffs Lack Standing to Bring this Lawsuit.

In order to meet Article III's standing requirement, a plaintiff must show: (1) that she
suffered “injury-in-fact” that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) causal connection between the injury and challenged action of
defendant; and (3) it is likely, not merely speculative, that injury will be redressed by favorable
decision. Smith v. St. Louis Housing Authority, 132 F. Supp. 2d 780 (E.D. Mo 2001); see also
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). As set forth herein, Plaintiffs do
not meet the requisite elements of standing.
A.

The Organizational Plaintiffs Lack Standing to Bring this Lawsuit
Because They have No Constitutional Right to Access Public School
Students.

Plaintiffs, Parents, Families, and Friends of Lesbians and Gays, Inc., Dignity, Inc.,
Matthew Shepard Foundation, and Campus Pride, Inc., are non-profit organizations, who
maintain Internet websites (hereinafter “organizational Plaintiffs”).

See First Amended

Complaint p. 1-4. In the First Amended Complaint, Plaintiffs allege that the District “has
interfered with those organizations’ ability to communicate with Plaintiff Jane Doe and other
students who want to receive their message,” and “[t]he District’s Internet filtering software
violates Plaintiffs’ free speech rights under the United States and Missouri Constitution.”
(Amended Complaint p. 31 ¶¶ 64, 72). However, the organizational Plaintiffs lack standing to
assert these claims as there is no established constitutional right of website publishers to have
access to public school students.
The United States Supreme Court has stated:
“[a] public library does not acquire Internet terminals in order to create a
public forum for Web publishers to express themselves, any more than it
collects books in order to provide a public forum for the authors of books to
speak. It provides Internet access, not to ‘encourage a diversity of views from
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private speakers,’ but for the same reasons it offers other library resources: to
facilitate research, learning, and recreational pursuits by furnishing materials of
requisite and appropriate quality. As Congress recognized, ‘the Internet is simply
another method for making information available in a school or library.’ S. Rep.
No. 106-141, p. 7 (1999). It is ‘no more than a technological extension of the
book stack.’”
United States, et al., v. American Library Association, Inc. et al., 539 U.S. 194, 207 (2003)
(plurality) (internal case citations omitted). Indeed, the Constitutional right to challenge access
to school library materials is a right that belongs to students. See, e.g., Case v. Unified Sch. Dist.
No. 233, 908 F. Supp. 864, 874 (D. Kan. 1995) (finding that “the constitutional right to challenge
the removal of a book from a school library appears to be held by the student who is denied
access to the book” and dismissing individual claims of parents of children allegedly denied
access to library books); Counts v. Cedarville Sch. Dist., 295 F. Supp. 2d 996, 1000 (W.D. Ark.
2003) (dismissing individual First Amendment claim of parent due to lack of standing); Bd. of
Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 853 (1982) (students
bringing action for alleged violation of their First Amendment rights and court discussing First
Amendment rights of students); Sheck v. Baileyville Sch. Comm., 530 F. Supp. 679, 689 (D. Me.
1982) (discussing “the first amendment right of students” to school library books).
Accordingly, as public school Internet terminals are “no more than a technological
extension of the book stack” it follows that only students have the constitutional right to
challenge what materials are accessible to them in their pursuit of receiving information through
the Internet at school. American Library Association, Inc. et al., 539 U.S. at 207. To open the
door to grant standing to every organization with a website that wants to communicate their
ideas to public school students is not only at odds with federal law which dictates that public
schools must deny access to certain websites, but is also a reckless action which will cause
irreparable harm for every public school district in the nation who would undoubtedly face
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unending litigation from website publishers and advertisers who want access to District students
through the Internet. This must not be permitted.
As there is no constitutional right for any organization or website publisher to have
access to District students through the Internet, the organizational Plaintiffs do not have
standing to bring their claims and they must be dismissed with prejudice from this matter.
B.

The Organizational Plaintiffs Lack Standing to Bring this Lawsuit
Because They Have Suffered No “Injury In Fact.”

The organizational Plaintiffs in this matter also lack standing to bring this lawsuit as they
cannot demonstrate an “injury in fact”. Smith v. St. Louis Housing Authority, 132 F. Supp. 2d
780 (E.D. Mo 2001). Indeed, Plaintiffs can demonstrate no injury at all.
In their Amended Complaint, Plaintiffs state that the “District’s Internet filtering software
blocks access to hundreds of educational LGBT websites and other Internet resources supporting
LGBT youth that are not sexually explicit, including, but not limited to, the websites of Plaintiffs
PFLAG, DignityUSA, Matthew Shepard Foundation, and Campus Pride.”

(Amended

Complaint, p. 9 ¶ 33).2 Plaintiffs further allege that the District “has interfered with Plaintiffs’
ability to communicate with Plaintiff Jane Doe and other students who want to receive Plaintiffs’
message.”

(Amended Complaint p. 31, ¶ 64).

Notably, however, nowhere in Plaintiffs

Complaint do they state that any District student, including Jane Doe, has ever actually made an
attempt to access Plaintiffs’ particular websites. See generally Amended Complaint. Likewise,
Plaintiffs’ do not allege anywhere in their Complaint, nor could they, that any District student
has ever requested access to their websites through the District’s anonymous request procedure
and been denied access. Further, there is not even a minimal guarantee that any student will ever

2

Campus Pride’s website at www.campuspride.org, was never blocked by the District. See
Hadfield Aff. at ¶ 14; Cowen Aff. at ¶ 18.

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seek access of their websites if an injunction of this Court is granted. Accordingly, as Plaintiffs’
request for relief is far too speculative and constitutes a mere “conjectural or hypothetical”
injury, their claims must be dismissed. Smith, at 783-784; see also City of Los Angeles v. Lyons,
461 U.S. 95, 101-105 (1983) (noting that in cases where injunctive relief is sought, the injury-infact element requires that the plaintiff faces a real and immediate threat of harm).
C.

Plaintiff Jane Doe Lacks Standing to Bring Claims as she has not
Plead a Particularized “Injury-In-Fact”.

Plaintiff, Jane Doe, an alleged student in the Camdenton R-III District, has not pled
sufficient facts to demonstrate that she suffered an “injury-in-fact” that is (a) “concrete and
particularized” and (b) “actual or imminent, not conjectural or hypothetical” in order to meet the
essential elements of standing. Smith, at 783-784; see also Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992). Plaintiffs allege that, “Plaintiff Jane Doe…has used, and plans in the
future to use, computers in the school library to search for information on the Internet. She
wants to access information on diverse ideas and issues, including information about lesbian,
gay, bi-sexual, and transgender people, but she is prevented from doing so by the software
blocking sites on the Internet.

In particular, she would like to access information that is

supportive of LGBT students.” (Amended Complaint ¶ 5).

These vague allegations do not

demonstrate a concrete and particularized injury sufficient to confer standing to Jane Doe.
Specifically, Plaintiffs have not noted any particular websites that Jane Doe has wanted to
access that have been blocked by the District or any websites that Jane Doe has specifically
requested access to and been denied by the District. Since the 2004-2005 school year, the
District has had an optionally anonymous and easy procedure in place in which students and
employees can submit an electronic request that a particular website be unblocked. See Hadfield
Aff. at ¶ 10; Cowen Aff. at ¶ 14. This system has been used on numerous occasions to unblock
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websites which were “over-blocked” by the District’s filter. See Hadfield Aff. at ¶ 11; Cowen
Aff. at ¶ 15. Specifically, on November 12, 2008, this process was utilized and the District
received

a

request

that

www.rainbowdomesticviolence.itgo.com.

the

following

website

be

unblocked:

After review, this website was immediately

unblocked and has remained unblocked ever since. See Hadfield Aff. at ¶ 12; Cowen Aff. at ¶
16. When the ACLU wrote a letter to the District noting that student access to the websites for:
GSA Network, GLSEN, Day of Silence, and the Trevor Project were blocked, after review, the
District unblocked these websites without delay in June 2011. See Hadfield Aff. at ¶ 15; Cowen
Aff. at ¶ 17.
Further, contrary to the overbroad and inaccurate wording of the Amended Complaint,
the Camdenton School District does allow access to websites which promote and provide
information about LGBT rights. See Hadfield Aff. at ¶ 8; Cowan Aff. at ¶ 9. Indeed, Plaintiff
Campus Pride’s website has never been blocked by the District. See Hadfield Aff. at ¶ 14;
Cowen Aff. at ¶ 18.

Websites which support and provide information regarding LGBT rights

such as http://gayrights.change.org, http://www.aclu.org/lgbt-rights, http://lgbtweekly.com,
http://lgbt.wisc.edu, www.itgetsbetter.org, among many others are not blocked by the District.
See Hadfield Aff. at ¶ 9; Cowen Aff. at ¶¶ 11-12 and Examples of Open District Websites
attached thereto as Exhibit 1. Thus, in light of the numerous LGBT supportive websites which
are currently available to District students, Plaintiff Jane Doe’s sweeping statement that “she
would like to access information that is supportive of LGBT students” is too speculative and
insufficient to demonstrate that an actual live controversy exists in this matter.
Plaintiff Jane Doe has not set forth any facts which would put the District on notice that
she has attempted to access particular websites at school and was denied, or that she utilized the

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District’s system to make an anonymous request and was denied access. See Heinkel v. Sch. Bd.
of Lee Cnty Fl., 194 Fed. Appx. 604 (11th Cir. 2006) (finding that where record contained no
evidence that high school student actually sought permission to distribute literature at school and
was denied such permission by the school district, student lacked standing to bring an as-applied
challenge to school board policy regarding same). Accordingly, Plaintiff Jane Doe has not
exhausted her remedies or demonstrated that she suffered and “injury in fact” that is “concrete
and particularized” and thus she lacks standing to pursue her claims.
II.

Plaintiffs’ Claims are Moot.

If a claim has been rendered moot, a federal court has no constitutional authority to
resolve the issue. North Carolina v. Rice, 404 U.S. 244, 246 (1971). In this matter, Plaintiffs’
claims are moot as Plaintiffs do not have standing to pursue their claims. See Besette v. AT &T
Corp., 2006 WL 2927561 (W.D. Mo 2006) (not reported), citing Rolscreen Co. v. Pella Products
of St. Louis, Inc., 64 F.3d 1202, 1207 (8th Cir.1995) (even when legal claims survive, when
“there is no longer any relationship between the parties, the complaint for a declaratory judgment
[is] moot.”)
Further, Plaintiffs have failed to state an actual and particularized harm and this Court
may not issue an advisory opinion. See Princeton University v. Schmid, 455 U.S. 100, 103
(1982) (university's repeal of challenged campus speech regulations rendered appeal moot
because the case had “lost its character as a present, live controversy of the kind that must exist if
we are to avoid advisory opinions on abstract questions of law.”). As discussed herein, nowhere
in their Amended Complaint do Plaintiffs allege that Plaintiff Jane Doe, or any other District
student, has requested access to a particular website through the District’s procedures currently
in place and subsequently been denied access to the requested website. Further, the District’s
Board of Education revised its Board Policies to clarify its practices and to provide alternative
00013670.1

9

avenues for District students and employees to make requests for access to particular websites.
See Hadfield Aff. at ¶ 13, and action of the Board of Education attached thereto as Exhibit 1 and
Board Policies EHB-AP and IIAC-R attached thereto as Exhibit 2. Accordingly, this matter is
rendered moot as Plaintiff Jane Doe may request access to particular websites through District
procedure and policy currently in place and thus, Plaintiffs are essentially asking this Court to
issue an advisory opinion on an abstract question of law as to whether Plaintiff Jane Doe may be
denied access to a particular website in the future.
III.

Plaintiffs’ Claims Asserted Under 42 U.S.C. Section 1983 Against Defendant
Hadfield In His Official Capacity Must Be Dismissed As Redundant Against
The District.

Plaintiffs lack standing to bring this lawsuit and thus, this case must be dismissed.
However, even assuming arguendo that Plaintiffs had a live case and controversy, which they do
not, Plaintiffs’ Section 1983 claims asserted against Defendant Hadfield fail to state a claim upon
which relief can be granted and therefore, must be dismissed.
In Count I of Plaintiffs’ First Amended Complaint, Plaintiffs assert a claim under 42
U.S.C. § 1983 against Defendant Hadfield in his official capacity as the Superintendent of the
District. As this claim is redundant to the 42 U.S.C. § 1983 claim asserted against the District in
Count I, the claim against Defendant Hadfield should be dismissed.
It has long been held that claims against public employees in their official capacity are no
more than claims against the employer. See e.g. Will v. Michigan Dept. of State Police, 491 U.S.
58, 71 (1989) (finding, “suit against a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official's office. As such, it is no different from
a suit against the State itself.”). Thus, Plaintiffs’ Section 1983 claim against Defendant Hadfield
in his official capacity as set forth in Count I of Plaintiffs’ Amended Complaint is barred, as the

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claim is “redundant to the claim against the School District.” Artis v. Francis Howell North Band
Booster Association, Inc., 161 F.3d 1178, 1182 (8th Cir. 1998) (affirming district court’s grant of
summary judgment which dismissed Section 1983 official capacity claims against a public
employee in his official capacity as redundant to the claim against his employer).
IV.

Count III, Asserting a 42 U.S.C. § 1983 Claim against Defendant Hadfield in
his Personal Capacity Must Be Dismissed as Defendant Hadfield was Acting
in Accordance with Federal Law.

In Count III of the Amended Complaint, Plaintiffs have failed to state a claim for which
monetary relief can be granted. Plaintiffs’ claim against Defendant Hadfield pursuant to 42
U.S.C. § 1983 in his individual capacity attempts to allege that Defendant Hadfield violated
“clearly established constitutional rights of which a reasonable person would have known.”
(Complaint p. 35, ¶ 89). Plaintiffs face an insuperable bar to recovery on this claim as Defendant
Hadfield is entitled to qualified immunity from Plaintiffs’ claims. Harlow v. Fitzgerald, 457
U.S. 800, 807 (1982).
In their Amended Complaint, Plaintiffs correctly acknowledge that “[t]he Children’s
Internet Protection Act (“CIPA”) requires public schools receiving E-rate funds to use filtering
software to block websites with visual depictions that are obscene or pornographic.” (Amended
Complaint p. 6 ¶ 11). Mr. Hadfield was utilizing Internet filtering software on the District’s
computer system to comply with CIPA. By use of this system, and specifically through the
challenged, “sexuality filter,” Mr. Hadfield blocked access to such websites inappropriate for
student access such as, thepenis.com/gay, imasturbate.org, and givingwomenorgasms.com,
among many others in order to comply with established federal law. See Document 9-6, attached
to Plaintiffs’ Suggestions in Support of Motion for Preliminary Injunction.

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The United States Supreme Court has noted that, “a filter set to block pornography may
sometimes block other sites that present neither obscene nor pornographic material, but that
nevertheless trigger the filter.” United States v. American Library Association, Inc. et al., 539
U.S. 194, 201 (2003). The Court also noted, “[b]ecause of the vast quantity of material on the
Internet and the rapid pace at which it changes, libraries cannot possibly segregate, item by item,
all the Internet material that is appropriate for inclusion from all that is not.” Id. at 208. Thus, it
is clear that Plaintiffs cannot state a claim for relief against Defendant Hadfield in his personal
capacity pursuant to Section 1983 as he employed filtering software to comply with clearly
established federal law, and the fact that some appropriate websites may have been inadvertently
blocked by the filter does not rise to the level of a constitutional violation. Accordingly,
Defendant Hadfield is entitled to qualified immunity from Plaintiffs’ claim as it is readily
apparent that Defendant Hadfield’s conduct did not rise to a constitutional violation and certainly
any right of website publishers to speak to public school students, (which Defendants argue is
nonexistent) is certainly not a right “clearly established at the time of the alleged misconduct.”
See Saucier v. Katz, 533 U.S. 194, 200-201 (2001), over-ruled in part by Pearson v. Callahan,
555 U.S. 223 (2009). Accordingly, this claim against Defendant Hadfield must be dismissed
with prejudice.
V.

Counts I and III, Asserting a 42 U.S.C. § 1983 Claim Against the District
Must Be Dismissed as the District Does Not Have a Custom and Policy
Which Violated the Rights of Plaintiffs.

In order to hold a governmental entity, such as a school district, accountable for the
actions of its employees under 42 U.S.C. Section 1983, the deprivation of a constitutional right
must result from either the implementation or execution of an unconstitutional policy or custom
of the District. See Artis v. Francis Howell North Band Booster Association, Inc., 161 F.3d 1178
(8th Cir. 1998). Plaintiffs have failed to allege facts in their Amended Complaint which support
00013670.1

12

the existence of an unconstitutional policy or custom of the District which allegedly caused
Plaintiffs’ injuries. “At a minimum, a complaint must allege facts which would support the
existence of an unconstitutional policy or custom.” Doe ex rel. Doe v. Sch. Dist. City of Norfolk,
340 F.3d 605, 614 (8th Cir. 2003) (citing Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d
521, 532-533 (5th Cir. 1996) (stating that a plaintiff must plead facts to support the existence of a
policy or custom to properly state a claim for relief under Section 1983). Plaintiffs have failed to
allege facts in their Amended Complaint which support the existence of an unconstitutional
policy or custom of the District which allegedly caused Plaintiffs’ injuries. To the contrary, the
facts asserted demonstrate that the District has a practice, policy and custom of complying with
federal law which mandates that the District block websites that are inappropriate for minors.
Further, the District has procedures in place to allow ease for unblocking websites which are
blocked by the filter yet are appropriate for access by District students and took action to clarify
in their Board Policies the process for requesting access to web material blocked by the filters to
establish an easy and anonymous process for its students.3 Accordingly, Plaintiffs have failed to
state a claim upon which relief can be granted, and their claims against the District pursuant to
Section 1983 must be dismissed.
Conclusion
A live case or controversy does not exist between the parties to this litigation and thus,
this Court does not have jurisdiction over this matter. Assuming arguendo, Plaintiffs had

3

Review of this information in considering Defendants’ Motion to Dismiss pursuant to 12(b)(6)
is appropriate as it is an action by a public body, and thus a public document, and this
information is “necessarily embraced by the pleadings.” Porus Media Corp. v. Pall Corp., 186 F.
3d 1077, 1079 (8th Cir. 1999). This Court may take judicial notice of the acts of the School
Board and related public records. Crooks v. Lynch, 557 F.3d 846, 848-49 (8th Cir. 2009); see
also Stutzka v. McCarville, 420 F.3d 757, 761 (8th Cir. 2005) (“We may take judicial notice of
judicial opinions and public records.”).
00013670.1

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standing to pursue their claims, which they do not, Plaintiffs cannot state a claim for relief
against Defendant Hadfield and the District pursuant to 42 U.S.C. Section 1983. For the reasons
stated herein, this case must be dismissed with prejudice.

Respectfully submitted,
MICKES, GOLDMAN, O’TOOLE, LLC
By: /s/ Thomas A. Mickes
Thomas A. Mickes, #28555
[e-mail]
Elizabeth A. Helfrich, #58891
[e-mail]
555 Maryville University Drive, Suite 240
St. Louis, Missouri 63141
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANTS
CAMDENTON R-III SCHOOL DISTRICT
AND TIMOTHY E. HADFIELD

00013670.1

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CERTIFICATE OF SERVICE
I hereby certify that on the 8th day of September, 2011, a true and correct copy of the
foregoing was electronically filed with the Clerk of the Court using the CM/ECF system which
sent notification of filing to the following:
A. Elizabeth Blackwell
[e-mail]
Mark Sableman
[e-mail]
Thompson Coburn LLP
One U.S. Bank Plaza
St. Louis, MO 63101
and
Anthony E. Rothert
[e-mail]
Grant R. Doty
[e-mail]
American Civil Liberties Union of Eastern MO
454 Whittier Street
St. Louis, MO 63108
and
Joshua A. Block
[e-mail]
James Esseks
[e-mail]
LGBT Project
ACLU Foundation
125 Broad Street, Floor 18
New York, NY 10004
Pro Hac Vice – Pending
Attorneys for Plaintiffs

/s/ Thomas A. Mickes

00013670.1

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