Barna v. Board of School Directors of the Panther Valley School District et al

Filing 28

MEMORANDUM and OPINION - For the foregoing reasons, the Court will deny Defendants' Motion for Judgment on the Pleadings (Doc. 22) and deny without prejudice qualified immunity to the individual defendants. A separate Order follows.Signed by Honorable Robert D. Mariani on 10/15/13. (jfg)

THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN BARNA
Plaintiff

v.

3:12-CV-638
(JUDGE MARIANI)

BOARD OF SCHOOL DIRECTORS
OF THE PANTHER VALLEY
SCHOOL DISTRICT, et aI.,
Defendants
MEMORANDUM OPINION
I. Introduction
Before the Court is Defendants' Motion for Judgment on the Pleadings (Doc. 22).
For the reasons set forth below, the Court will deny Defendants' motion and deny without
prejudice qualified immunity to the individual defendants.

II. Factual Allegations
Plaintiff, John Barna, is an adult resident of Carbon County, Pennsylvania. (Am.
Compl., Doc. 2, at 1f 1). Defendants are the Board of School Directors of the Panther Valley
School District and seven former and current individual School Board Members. (Id. at mr 2­
9).1 Plaintiff brings suit seeking damages and injunctive relief against Defendants "due to his

removal and banishment from meetings of the School Board in violation of his federal
constitutional rights to free speech." (Id. at 1f 12).
Those individual School Board Members are: Anthony Pond ish, Donna Trimmel, Koreen Nalesnik, Jeffrey
Markovich, David Hiles, William Hunsicker, and Anthony Demarco.
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Prior to being barred from participating as a citizen in School Board meetings,

Plaintiff had "taken considerable interest in the functioning and governance of the Panther
Valley School District. This includes, but is not necessarily limited to, attendance at
meetings of the School Board of the Panther Valley School District." (Id. at ~ 14).
On April 8, 2010, Plaintiff attended a public School Board meeting wherein he "asked
several questions concerning financial dealings of the School Board. Mr. Barna indicated
that some of his friends similarly had concems about financial dealings of the School
Board." (Jd. at 1m 15-16). In response to Plaintiff's comments, Defendant Markovich "invited
[Plaintiff] to bring his friends to a subsequent School Board meeting," to which Plaintiff
replied that his friends '''carry guns, you wouldn't want that.' Various members of the School
Board responded with laughter to this quip. Mr. Markovich responded that 'Aah well, I'll wear
my bullet-proof vest.'" (Jd. at ~ 17).
Two weeks later, Plaintiff attended another public School Board meeting. At the
inception of the meeting, Defendant Markovich "requested that Mr. Barna leave the meeting
purportedly based upon the above-referenced comments of Mr. Barna at the April 5, 2010
School Board Meeting" because Plaintiff's "comments '... could have been taken as a
threat, and until it can be clarified, I have to ask Mr. Barna to leave.'" (Id. at 1m 18-19).
Plaintiff stated "that he had been joking," but Defendant Markovich "ultimately asked that Mr.
Barna be removed from the meeting by a security guard." (Id. at ~ 20).
As he was leaving, Mr. Barna, in response to commentary from audience
members in attendance at the April 22, 2010 School Board Meeting, jokingly
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stated to the audience to the effect that he might come after all of them. Mr.
Markovich utilized this statement to the audience as pretense to claim a
"threat" to the School Board.
(Id.). Five days later, Plaintiff "received a letter from School District Superintendent
Rosemary Poremba, on behalf of the School Board," (id. at 1{21), "warning" him that his
"disorderly conduct and making threats will not be permitted to continue." (Apr. 27, 2010
Letter, Doc. 13, Ex. 1). The letter further stated that "should you appear at another public
Board meeting at Panther Valley School District and threaten any Board member or
Administrator, or become disorderly in any fashion, you will be barred from further
attendance at public Board meetings of the Panther Valley School District." (/d.).
Plaintiff continued attending public School Board meetings "between April 2010 and
September 2010," but on October 21,2011, he "received a letter from [the] School District
Solicitor ... on behalf of the School Board, barring Mr. Barna from School District property,
effectively barring him from attendance at School Board meetings." (Am. CampI. at 1{22).
This letter stated that Plaintiff's "conduct hard] become intolerable, threatening, and
obnoxious," and was "interfering with the function of the School Board and the School
District as awhole." (Oct. 18, 2011 Letter, Doc. 13, Ex. 2). As such, Plaintiff was "no longer
permitted on any Panther Valley School District property." (Id.). It promised that "[s]hould
you be found on any Panther Valley School District property," he would "be prosecuted to
the fullest extent of the law." (ld.). Despite banning Plaintiff from attending future public
School Board meetings, the letter indicated that "[i]n the event that you should have

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..

reasonable and responsible questions for the School Board or the School District

administration, you are to submit them in writing to the Superintendent and she will see that
you are provided with an appropriate reply in a timely fashion." (ld.).
Following the October 18, 2011 Letter, the School Board voted to "ratify and approve
the ban of Mr. John Barna from Panther Valley School District property in accordance with
Panther Valley School District policy No. 903, No. 904 and No. 907." (Nov. 7, 2011 School
Board Minutes, Doc. 13, Ex. 3). The School Board members voted 6-2, with one abstention,
in favor of ratifying and approving the ban. 2 (ld.).
This Court has jurisdiction under 28 U.S.C. § 1331, and venue is proper 28 U.S.C. §
1391(b).

III. Motion to Dismiss
"After the pleadings are closed--but early enough not to delay trial--a party may
move for judgment on the pleadings." FED. R. CIV. P. 12{c). "[A] motion for judgment on the
pleadings based on the theory that the plaintiff failed to state a claim is reviewed under the
same standards that apply to a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6)." Caprio v. Hea/thcare Revenue Recovery Group, LLC, 709 F.3d 142, 146-47 (3d
Cir.2013).
To survive amotion to dismiss under FED. R. CIV. P. 12(b)(6), a plaintiff must state a
"'plausible claim for relief.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009)
2 Those voting in favor were Defendants Pondish, Trimmel, DeMarco, Hiles, Hunsicker, and Markovich.
Those voting against were Angst and Genther, who have not been named as defendants in this case. Defendant
Nalesnik abstained from voting.

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(quoting Ashcroft v. Iqbal, 556 U.S. 662,679, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868

(2009)). FED. R. CIV. P. 8(a)(2) requires only that a pleading contain ,u a short and plain
statement of the claim showing that the pleader is entitled to relief,' in order to 'give the
defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell At!.
Corp. v. Twombly, 550 U.S. 544, 555,127 S. Ct. 1955, 1959, 167 L. Ed. 2d 929 (2007)
(quoting Conley v. Gibson, 355 U.S. 41,47,78 S. Ct. 99, 103,2 L. Ed. 2d 80 (1957)).
'The court should freely give leave [to amend] when justice so requires." FED. R. CIV.
P.15{a)(2). In addition, "if a complaint is vulnerable to 12(b)(6) dismissal, a District Court
must permit acurative amendment, unless an amendment would be inequitable or futile." In
re New Jersey Title Ins. Litigation, 683 F.3d 451,462 (3d Cir. 2012). "The Rule 15(a)
factors include undue delay, bad faith, prejudice, or futility." Burich V. Milberg Factors, Inc.,
662 F.3d 212, 230-31 (3d Cir. 2011) (internal citation and quotation marks omitted).

IV. Analysis
Restrictions on First Amendment Right to Free Speech
To establish a prima facie case under 42 U.S.C. § 1983, plaintiffs must demonstrate
that: (1) they were deprived of a federal right; and (2) the person who deprived them of that
right acted under color of state law. Burrella V. City of Philadelphia, 501 F.3d 134, 139 (3d
Cir.2007). Section 1983 is not an independent source of SUbstantive rights, but merely
"provides a remedy for deprivations of rights established elsewhere in the Constitution or
federal laws." Kopec v. Tate, 361 F.3d 772,775-76 (3d Cir. 2004).

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The First Amendment to the Constitution provides, in relevant part, "Congress shall

make no law ... abridging the freedom of speech, ... U.S. CONST., amend. I. Although the
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First Amendment prohibits the government from "abridging the freedom of speech," it does
not preclude the government from placing any restrictions at all on speech. There are four
types of public forums that a government may establish, and the type of forum will
determine the extent of permissible restrictions on speech in that forum.
First. "quintessential public forums" are "places which by long tradition or by
government fiat have been devoted to assembly and debate," such as "public streets and
parks which have immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts between citizens,
and discussing public questions." Pleasant Grove City, Utah v. Summum, 555 U.S. 460,
469,129 S. Ct. 1125, 1132, 172 L. Ed. 2d 853 (2009) (quoting Perry Educ. Ass'n v. Perry
Local Educators' Ass'n, 460 U.S. 37, 45,103 S. Ct. 948, 74 L. Ed. 2d 794 (1983)).
"Reasonable time, place, and manner restrictions are allowed, but any restriction based on
the content of the speech must satisfy strict scrutiny, that is, the restriction must be narrowly
tailored to serve a compelling government interest." Id. (internal citations omitted).
Second, "a government entity may create 'a deSignated public forum' if government
property that has not traditionally been regarded as a public forum is intentionally opened up
for that purpose." Pleasant Grove, 555 U.S. at 469, 129 S. Ct. at 1132 (citing Cornelius v.
NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806, 105 S. Ct. 3439, 87 L. Ed. 2d

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567 (1985)). uGovernment restrictions on speech in a designated public forum are subject to

the same strict scrutiny as restrictions in atraditional public forum." Id. at 469~70.
Third, u government entity may create aforum that is limited to use by certain
a
groups or dedicated solely to the discussion of certain subjects. In such aforum, a
government entity may irnpose restrictions on speech that are reasonable and viewpoint
neutral." Id. In a limited public forum, U[t]he State may be justified in reserving its forum for
certain groups or for the discussion of certain topics." Good News Club v. Milford Cent.
Sch., 533 U.S. 98, 106, 121 S. Ct. 2093, 2100, 150 L. Ed. 2d 151 (2001) (internal citations

and quotation marks omitted). "The State's power to restrict speech, however, is not without
limits. The restriction must not discriminate against speech on the basis of viewpoint, and
the restriction must be reasonable in light of the purpose served by the forum." Id. at 106­
07. 3
Fourth, the government may place limitations on non-public forums: U[i]n addition to
time, place, and manner regulations, the state may reserve the forum for its intended
purposes, communicative or otherwise, as long as the regulation on speech is reasonable
and not an effort to suppress expression merely because public officials oppose the
speaker's view." Perry, 460 U.S. at 46, 103 S. ct. at 955.

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But see Galena v. Leone, 638 F.3d 186, 197, n.8 (3d Cir. 2011) ("There appears to be some inconsistency

in federal courts' opinions, even those of the Supreme Court, as to whether a limited public forum is a separate
category or a subset of a designated public forum with a third category of forums being 'nonpublic forums' ,")
(listing cases); Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 280 (3d Cir. 2004) ("The Supreme Court has not
precisely instructed where the limited public forum is located on the First Amendment spectrum between the
strict test for public forum regulation and the more relaxed test for non public regulation.").

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"[I]n a public forum any restrictions as to time, place, and manner of speech (1) must

be unrelated to content; (2) must be narrowly tailored to serve a significant governmental
interest; and (3) must allow alternative ways of communicating the same information."
Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 280 (3d Cir. 2004) (internal citations and

quotation marks omitted). In a recent case, the Third Circuit clarified that:
If even only one member of the public objects during a time when public
comments are not allowed[,] the Council's procedure in conducting business
is affected even if the member of the public interrupts the meeting in a
conversational, nonthreatening tone of voice. The interruption of the order of
business is itself the disturbance.
Galena v. Leone, 638 F.3d 186,212 (3d Cir. 2011) (rejecting Galena's claims "that he was

not creating adisturbance, at least as that term is ordinarily understood, by objecting to the
Council's procedures."). Therefore, Defendants' arguments that Barna was "intolerable,
threatening, and obnoxious," on a number of occasions, could justify placing reasonable
time, place, and manner restrictions on Barna's speech at Panther Valley School Board
meetings.
In fact, in Eichenlaub, the Third Circuit noted the following:
The record of the September 14, 1999 meeting discloses that [Eichenlaub]
was repetitive and truculent, and that he repeatedly interrupted the chairman
of the meeting. Restricting such behavior is the sort of time, place, and
manner regulation that passes muster under the most stringent scrutiny for a
public forum. Indeed, for the presiding officer of a public meeting to allow a
speaker to try to hijack the proceedings, or to filibuster them, would impinge
on the First Amendment rights of other would-be participants. We have no
difficulty sustaining the decision to remove David Eichenlaub on that basis.

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385 F.3d at 281 (affirming the district court's grant of summary judgment in favor of the

Township Board of Supervisors on Plaintiffs' First Amendment speech claim). "At any rate,
the overwhelming, and wholly sufficient, motive to eject David Eichenlaub from the meeting
was the perfectly sustainable and content-neutral desire to prevent his badgering, constant
interruptions, and disregard for the rules of decorum." Id. 4
Nevertheless, the Court finds that it is not appropriate at this stage of the case to
grant Defendants' motion. In support of their Motion for Judgment on the Pleadings,
Defendants argue that "[ilt was not until a meeting held on October 14, 2011, that Plaintiff
became the most unruly any Board members had ever seen. Following several outbursts,
Plaintiff was asked to leave the meeting." (Defs.' Br. in Supp., Doc. 23, at 3). Leaving aside
for the moment the fact that this argument was made in a brief - which is not a pleading ­
and none of the exhibits submitted by Defendant refer specifically to any unruly behavior or
outbursts occurring on October 14, 2011,5 Plaintiff is entitled to develop afuller factual
record in support of his claim. See Mobley v. Tar/ini,641 F. Supp. 2d 430, 440 (E.D. Pa.
2009) ("In the instant case, taking Plaintiffs allegations as true, the Court must deny

4 Furthermore, in a non-precedential case, the Third Circuit continued its approval of reasonable time,
place, and manner restrictions in these types of situations: Olasz, a member of the West Mifflin Borough Council,
sued Welsh, the council president, for (1) ruling that Olasz was out of order for being disruptive and addressing
items not on the agenda, and (2) instructing the police to remove him from two council meetings. 01051 v. Welsh,
301 F. App'x 142 (3d Cir. 2008) (affirming the district court's grant of summary judgment in favor of Welsh). "Olasz
admitted to speaking out at the Borough Council meetings, and in fact 'speak[ing) loudly while being gaveled' by
Welsh, but he averred that his behavior was necessary in order to be heard." /d. at 143. The Third Circuit found
that "Welsh's actions served the function of adhering to rules of decorum and confining the discussion to the
purpose of the meeting, and that restricting 01asz's disruptive behavior constitutes the type of time, place, and
manner regulation that survives even the most stringent scrutiny for a public forum." Id. at 146.
5 These reasons alone would be sufficient to deny Defendants' motion, but the Court will provide the
following guidance to the parties for future motions practice.

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Defendant's 12(c) motion in order to allow factual development of whether Defendant

engaged in viewpoint-based discrimination or acted out of hostility or political opposition to
Plaintiff.").
As stated above, "in a public forum any restrictions as to time, place, and manner of
speech (1) must be unrelated to content; (2) must be narrowly tailored to serve a significant
governmental interest; and (3) must allow alternative ways of communicating the same
information." Eichenlaub, 385 F.3d at 280.
As to the first prong, a disturbance may very well have been the reason for removing
Barna, but Barna should be given an opportunity to show that the true motive for silencing
him was the content of his speech. See Mobley, 641 F.Supp.2d at 441 ("Although
Defendant claims that she was merely applying Robert's Rules in silencing Plaintiff and that
no other members tried to violate the Rules as Plaintiff did-and the videotape appears to
corroborate this statement-the Court cannot determine at this stage in the litigation that ...
viewpoint-based discrimination did not exist."); see also Wilkinson v. Bensalem Twp., 822 F.
Supp. 1154, 1156, 1159 (E.D. Pa. 1993) (denying a motion for summary judgment because
the record contained evidence that certain council members told the council president
"[d]on't let [the plaintiff] talk," the plaintiff was not permitted to speak until after the public
portion of the meeting was over and after council completed executive session, and the
council president "would not permit Wilkinson to speak during the public portion of the

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meeting, unless he apologized for his past behavior, even though Wilkinson had complied

with all of the requirements necessary to participate.").
As to the second prong, there is a serious and substantial question in the
undersigned's mind as to whether a permanent ban on Plaintiffs attendance at all future
Panther Valley School Board meetings and Panther Valley school property was "narrowly
tailored" to serve the undoubtedly compelling government interest in assuring the safety of
other citizens in attendance at School Board meetings and on school property.
Finally, as to the third prong, while Defendants claim that there were ample
alternative means of communication available to Barna, the evidence thus far is not entirely
consistent with their arguments. Defendants argue that "Plaintiff still has 'ample alternative
channels' through which he can communicate with the Board, including but not limited to
writing letters, making phone calls, etc." (Doc. 23, at 9). However, the letter informing
Plaintiff that he was banned from attending future School Board meetings and from school
property indicated that "[i]n the event that you should have reasonable and responsible
questions for the School Board or the School District administration, you are to subrnit them
in writing to the Superintendent and she will see that you are provided with an appropriate
reply in a timely fashion." (Oct. 18, 2011 Letter). Construing all the allegations and evidence
in Plaintiffs favor, Plaintiff may have believed that he was not permitted to have any other
means of communicating his questions, opinions, or concerns other than by writing to the
Superintendent. See Galena, 638 F.3d at 203 ("as a substantive matter, it is clear from the

II

record that there were adequate alternative means for Galena to communicate his objection

to the Council's procedure in adopting ordinances."). Therefore, the Court will deny
Defendants' Motion for Judgment on the Pleadings (Doc. 22) at this time.
Qualified Immunity
"Qualified immunity shields federal and state officials from money damages unless a
plaintiff pleads facts showing (1) that the official violated a statutory or constitutional rig ht,
and (2) that the right was 'clearly established' at the time of the challenged conduct."
Ashcroft v. al-Kidd, - U.S. --,131 S. Ct. 2074, 2080,179 L. Ed. 2d 1149 (2011) (internal

citations omitted). "[L]ower courts have discretion to decide which of the two prongs of
qualified-immunity analysis to tackle first." Id. The doctrine "gives government officials
breathing room to make reasonable but mistaken judgments, and protects all but the plainly
incompetent or those who knowingly violate the law." Messerschmidt v. Millender, -- U.S. --,
132 S. Ct. 1235, 1244-45, 182 L. Ed. 2d 47 (2012).
Qualified immunity is "an entitlement not to stand trial or face the other burdens of
litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L.Ed.2d 411 (1985).
The Supreme Court has indicated that, preferably, the issue of qualified immunity "ordinarily
should be decided by the court long before triaL" Hunter v. Bryant, 502 U.S. 224, 228, 112
S.Ct. 534,116 L.Ed.2d 589 (1991). However, the Third Circuit has recognized that this
preference sometimes must give way to the realities of acase's development. In response
to Hunter, the Third Circuit said:

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That is well and good when there are no factual issues in a case, but often
the facts are intensely disputed, and our precedent makes clear that such
disputes must be resolved by a jury after a trial. As a practical matter, then, in
such cases the immunity becomes no more than a mere defense, and a
sometimes challenging one to establish at that.

Curley v. Klem, 499 F.3d 199,208 (3d Cir. 2007) (internal citations omitted). Thus, though
this Court also would prefer to resolve the issue of qualified immunity "long before trial," it
cannot do so because of the factual issues remaining in the case, namely: (1) whether
Defendant was barred because he was disruptive or whether it was an attempt to silence
the content of his speech, (2) whether permanently banning Plaintiff from future School
Board meetings and from school property was narrowly tailored, and (3) whether Plaintiff
had alternative means of communicating his speech. These factual questions prevent the
court 'from determining whether "the official violated a statutory or constitutional right" that
was "clearly established at the time of the challenged conduct." See al-Kidd, 131 S. Ct. at
2080.
Some courts have held that in circumstances similar to those in this case, "the
boundaries of the First Amendment right ... were well established for purposes of qualified
immunity." Wilkinson, 822 F. Supp. at 1158 ("In cases factually similar to the one before us,
courts have consistently recognized that local officials presiding over duly-called public
meetings may offend First Amendment rights when they make ad hoc parliamentary
rulings."). Others have granted qualified immunity based on the unique circumstances of the
case. See Zapach v. Dismuke, 134 F. Supp. 2d 682, 694-95 (E.D. Pa. 2001) (granting the

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defendant qualified immunity, in part, because "the public was clearly notified that their
comments had to be relevant to whether or not the special exception at issue should be
granted. Under clearly established law, the official conducting a public meeting has the right
to stop any speaker whose speech became irrelevant, as a valid content-neutral restriction."
Furthermore, the defendant "allowed Plaintiff to continue speaking even though his speech
had become irrelevant to the matter at issue, in the hope that Plaintiff would return to the
topic.").
Nevertheless, both Wilkinson and Zapach decided the qualified immunity issue on
motions for summary judgment. Thus, at this time, the Court will deny qualified immunity to
Defendants without prejudice.

V. Conclusion
For the foregoing reasons, the Court will deny Defendants' Motion for Judgment on
the Pleadings (Doc. 22) and deny without prejudice qualified immunity to the individual
defendants. A separate Order follows.

Robert D. anani
United States District Judge

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