346 F.3d 585 (6th Cir. 2003), 02-3482, Neinast v. Board of Trustees of Columbus Metropolitan Library

Docket Nº:02-3482
Citation:346 F.3d 585
Party Name:Neinast v. Board of Trustees of Columbus Metropolitan Library
Case Date:October 10, 2003
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 585

346 F.3d 585 (6th Cir. 2003)

Robert A. NEINAST, Plaintiff-Appellant,

v.

BOARD OF TRUSTEES OF the COLUMBUS METROPOLITAN LIBRARY; Larry D. Black; Vonzell L. Johnson, Defendants-Appellees.

No. 02-3482.

United States Court of Appeals, Sixth Circuit

October 10, 2003

Submitted: Aug. 1, 2003.

Page 586

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Philomena M. Dane, Johnathan E. Sullivan (briefed), Squire, Sanders & Dempsey, Columbus, OH, for Appellees.

Robert A. Neinast (briefed), Pickerington, OH, pro se.

Before KENNEDY, GILMAN, and GIBBONS, Circuit Judges.

OPINION

GIBBONS, Circuit Judge.

Robert A. Neinast, a patron of the Columbus Metropolitan Library (Library) was evicted from the Library as a result of going barefoot. Neinast brought suit against the Board of Trustees of the Columbus Metropolitan Library (Board) and others under 42 U.S.C. § 1983, claiming violations of his rights under the First, Ninth, and Fourteenth Amendments of the United States Constitution, Article I of the Ohio Constitution, and Ohio Revised Code § 3375.40. All parties moved for summary judgment. -- Tdistrict court granted summary judgment in favor of defendants-appellees. For the reasons set forth below, we affirm the judgment of the district court.

I.

Plaintiff-appellant Neinast, a resident of Pickerington, Ohio, regularly goes barefoot and often uses the Library. Defendant-appellee Board serves as the regulating authority of the Library and is authorized by Ohio Revised Code § 3375.40 to "[m]ake and publish rules for the proper operation and management of the free public library and facilities under its jurisdiction, including rules pertaining to the

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provision of library services to individuals, corporations, or institutions that are not inhabitants of the county." Defendant-appellee Larry D. Black is the Executive Director of the Library, and defendant-appellee Vonzell Johnson is the Assistant Manager of Security for the Library. Although the Patron Regulations of the Library (approved by the Board) do not contain a prohibition on using the Library without shoes, the Library's Eviction Procedure (approved by the Executive Director) does provide that patrons not wearing shoes be given a warning and be "asked to leave [the] premises to correct the problem."

On several different occasions between 1997 and 2001, Neinast was asked to leave the Library for failure to comply with the Library's requirement that patrons wear shoes while on its premises. Neinast first was asked to leave the Library for not wearing shoes on September 12, 1997. On November 10, 2000, Neinast again was informed that he would have to wear shoes in order to use the Library's facilities and was asked to leave. On January 23, 2001, Neinast was asked to leave for the same reason. On March 2, 2001, Neinast again entered the Library barefoot, and subsequently was approached by two security officers and taken to the security desk, where one of the officers, acting under the supervision of Johnson, presented Neinast with a one-day eviction from the Library.

After being asked to leave on November 10, 2000, Neinast wrote a letter to Black dated November 16, 2000, and a letter to the Board dated December 11, 2000, complaining of the enforcement of the Eviction Procedure and the procedure's alleged inconsistency with the Patron Regulations. In a response dated December 14, 2000, the Board informed Neinast that Black had "the authority to make such decisions" and that the Board believed that Black "had made the correct one." According to the Library Organization Policy, Black (as the Executive Director) is responsible for "determining internal policies and procedures, ... public relations, relations with the community and governmental agencies, and the handling of all other matters involved with the operation of the library system."

On January 19, 2001, Neinast wrote another letter expressing his concerns about the prohibition on using the Library without shoes, and on January 30, 2001, Black asked the Franklin County Prosecutor's Office "for the legal reasons that [the Board] can give for requiring its customers to dress appropriately for a public place." In a letter dated February 7, 2001, the prosecutor's office responded that in accordance with Kreimer v. Bureau of Police of Morristown, 958 F.2d 1242 (3d Cir. 1992), "the Library may implement reasonable rules for the operation of the Library or the conduct of Library business, including a requirement that patrons wear shoes while in the library."

On March 5, 2001, following his one-day eviction from the Library on March 2, 2001, Neinast sent another letter to Black, the Board, and the prosecutor's office. On March 12, 2001, Black informed Neinast that he had "been made aware that we require our customers to wear shoes while using the Columbus Metropolitan Library facilities" and that he had been "provided a legal opinion ... stating that the Library has the legal authority to make and enforce such a rule," and concluding that the Library "will not respond to further correspondence on this matter."

On April 3, 2001, Neinast, acting pro se, filed a complaint in the Franklin County Court of Common Pleas alleging violations of 42 U.S.C. § 1983 based on deprivations of his First, Ninth, and Fourteenth Amendment rights under the United

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States Constitution and his rights under Article I of the Ohio Constitution. Defendants-appellees removed this case to the United States District Court for the Southern District of Ohio on May 11, 2001 and filed an answer on May 24, 2001. Neinast filed an amended complaint on June 27, 2001. On July 9, 2001, defendants-appellees filed an answer to the amended complaint. Both parties then filed motions for summary judgment. On March 27, 2002, the district court granted summary judgment in favor of defendants-appellees. Neinast timely filed his notice of appeal on April 25, 2002.

II.

A district court's grant of a motion for summary judgment is reviewed de novo. See Braithwaite v. The Timken Co., 258 F.3d 488 (6th Cir. 2001). Where the parties have filed crossmotions for summary judgment, this court "evaluate[s] each motion on its own merits and view[s] all facts and inferences in the light most favorable to the nonmoving party." Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994). However, an opponent of a motion for summary judgment "may not rest upon mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party opposing the motion must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "If after reviewing the record as a whole a rational factfinder could not find for the nonmoving party, summary judgment is appropriate." Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th Cir. 1998) (citing Matsushita, 475 U.S. at 587, 106 S.Ct. 1348).

A.

Neinast claims that the Board's enforcement of the requirement that patrons of the Library wear shoes deprived him of his right to receive information under the First and Fourteenth Amendments. 1 The district court assumed that Neinast had a First Amendment right of access to the Library, but rejected his claim, finding the Board's requirement that patrons of the Library wear shoes to be "a valid, content-neutral regulation that promotes communication of the written word in a safe and sanitary condition." Neinast v. Bd. of Trs. of Columbus Metro. Library, 190 F.Supp.2d 1040, 1044 (S.D.Ohio 2002). The district court concluded that "to the extent that it limits Plaintiff's right of access to speech, the Library's shoe regulation satisfies this intermediate scrutiny." Id. Neinast now argues that the presence of feces, semen, blood, and broken glass in or around the library system, as established by incident reports, fails to represent any danger to barefooted patrons. Neinast asserts that "the shoe policy is substantially broader than necessary, even if one assumes that the Library's incidents constitute hazards to barefooted persons." Neinast also claims that the Board's claim

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of a substantial governmental interest in public safety represents "an expansion of the police power beyond its traditional boundaries."

The First Amendment protects the right to receive information. Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) ("It is now well established that the Constitution protects the right to receive information and ideas."). This right to receive information "includes the right to some level of access to a public library, the quintessential locus of the receipt of information." Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992); see also Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577, 582 (6th Cir. 1976) ("A library is a mighty resource in the free marketplace of ideas."); Armstrong v. Dist. of Columbia Pub. Library, 154 F.Supp.2d 67, 75 (D.D.C.2001) (noting the existence of "long-standing precedent supporting plaintiff's First Amendment right to receive information and ideas, and this right's nexus with access to public libraries").

For the purposes of First Amendment analysis, the Library is a limited public forum. Kreimer, 958 F.2d at 1259; Sund v. City of Wichita Falls, Texas, 121 F.Supp.2d 530, 548 (N.D.Tex.2000); Mainstream Loudoun v. Bd. of Trs. of Loudoun County Library, 24 F.Supp.2d 552, 563 (E.D.Va.1998). As such, the Library "is obligated only to permit the public to exercise rights that are consistent with the nature of the Library and consistent with the government's intent in designating the...

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