426 F.3d 251 (4th Cir. 2005), 03-2252, Willis v. Town of Marshall, North Carolina

Docket Nº:03-2252, 04-1240.
Citation:426 F.3d 251
Party Name:Rebecca WILLIS, Plaintiff-Appellant, v. TOWN OF MARSHALL, NORTH CAROLINA, Defendant-Appellee. Rebecca Willis, Plaintiff-Appellant, v. Town of Marshall, North Carolina, Defendant-Appellee.
Case Date:October 07, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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426 F.3d 251 (4th Cir. 2005)

Rebecca WILLIS, Plaintiff-Appellant,



Rebecca Willis, Plaintiff-Appellant,


Town of Marshall, North Carolina, Defendant-Appellee.

Nos. 03-2252, 04-1240.

United States Court of Appeals, Fourth Circuit.

October 7, 2005

Argued: March 7, 2005.

Appeals from the United States District Court for the Western District of North Carolina, at Asheville, Lacy H. Thornburg, District Judge, (CA-02-217-1).

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[Copyrighted Material Omitted]

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Jonathan Drew Sasser, ELLIS & WINTERS, L.L.P., Raleigh, North Carolina, for Appellant .

Sandra Moody King, RUSSELL & KING, Asheville, North Carolina; Larry Bruce Leake, LEAKE & SCOTT, Asheville, North Carolina, for Appellee.

ON BRIEF: Thomas H. Segars, ELLIS & WINTERS, L.L.P., Cary, North Carolina; Marc C. Tucker, SMITH MOORE, L.L.P., Raleigh, North Carolina; Seth H. Jaffe, AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA, Legal Foundation, Raleigh, North Carolina, for Appellant .

Before WILKINS, Chief Judge, and WILLIAMS and TRAXLER, Circuit Judges.


TRAXLER, Circuit Judge

The Town of Marshall, North Carolina, hosts regular Friday-night concerts and community gatherings at the Marshall Depot, the Town's community center. Rebecca Willis enjoyed attending the Friday-night gatherings and dancing to the music

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provided by the local bands. Willis's unorthodox dancing style, however, led to complaints about her to the committee in charge of the Depot events. As a result of these complaints, the Town banned Willis from the Depot. Willis ultimately filed this § 1983 suit in federal district court. Willis asserted a host of constitutional claims springing from the Town's decision to ban her from the Depot and sought a preliminary injunction requiring the Town to re-admit her to Depot events. The district court denied Willis's motion for a preliminary injunction. Thereafter, the court granted summary judgment in favor of the Town, concluding that Willis's dancing was not constitutionally protected. Willis appeals. As we explain below, we affirm in part, vacate in part, and remand for further proceedings.



In the center of the Town of Marshall is the Marshall Depot, a former railroad depot leased by the Town for use as a community center. A committee appointed by the Town's Board of Aldermen coordinates events at the Depot. On Friday nights the Town opens the Depot and sponsors musical entertainment, permitting local groups to sign up for playing time. The Friday night concerts are for the benefit of the public and are attended by community members of all ages. During the Friday night concerts, the musicians perform on a stage, which is located in front of rows of auditorium-style seats where people can sit and listen to the music. There is no real dance floor in the Depot, but there is small area off to the side of the stage and seating area where people often dance.

Posted on the back wall of the Depot is a list of the Depot's "Rules of Behavior," which state:

(1) No Drinking (Alcoholic Beverages);

(2) No Smoking;

(3) Shoes and Shirts Required;

(4) No Sitting on Rails;

(5) No Blocking Doors;

(6) No Cases or Instruments Left on Deck;

(7) No Jamming Inside Depot or on Deck;

(8) No Unsupervised Children Allowed to Run Loose Around Building; and

(9) No Soliciting.

J.A. 81. There are no other posted rules or regulations regarding dress or appropriate behavior at the Depot.

Willis lives in Madison County, North Carolina, just outside the boundaries of Marshall. She regularly attended the Friday night concerts, where she particularly enjoyed dancing. According to the Town's evidence, Willis danced in a sexually provocative manner – gyrating and simulating sexual intercourse with her partner while "hunch[ed]" on the floor. J.A. 47, 49. The Town's evidence indicates that Willis wore very short skirts and would frequently bend over while dancing, exposing her underwear, her buttocks, and her "privates." J.A. 50.

Community members were concerned about their children being exposed to Willis's dancing, and a number of them complained to members of the Depot Committee. The Town contends that members of the Depot Committee repeatedly spoke to Willis about her dancing and asked her to "please curtail the provocativeness of her dances." J.A. 56. These requests were allegedly met with defiance. The Town says that rather than toning down her dancing, Willis began to dance even more provocatively.

Willis takes issue with the Town's view of the facts. Willis describes her style of

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dance as "exuberant[ ] and flamboyant[ ]," J.A. 9, but not inappropriate in any way.1 Willis acknowledges that she wore short skirts to the Depot, but she contends that she always wore underwear and pantyhose and thus could not have exposed her "privates." According to Willis, only one of the Depot Committee members once told her to "cool it" after Willis clogged her way through a cake walk, but the committee member later that night told Willis that she had been joking.

In any event, the Depot Committee ultimately decided to ban Willis from attending events at the Depot. This decision was conveyed to Willis by way of a letter from the Town's mayor. The letter, dated December 12, 2000, stated: "Due to the inappropriate behavior exhibited by you and having received previous warnings from the Marshall Depot Committee it is the consensus of the Committee that you are banned from the Marshall Depot. This action is effective as of today's date." J.A. 39.

After receiving the banishment letter, Willis contacted an attorney. Her attorney conveyed to the Board Willis's willingness to apologize for any inadvertent displays of her underwear and to abide by any dress code that the Board might adopt if the Board would permit her to return to the Depot. The Board declined to lift the banishment, and this action followed.


In her complaint, Willis alleged that the Town violated her substantive due process rights by permanently banishing Willis from a public forum; that the Town violated her First Amendment rights of free expression, of association, and to receive information by banning her from the Depot; that the Town deprived Willis of a liberty interest without affording her adequate procedural protections; that the authority upon which the Town relied to banish Willis was unconstitutionally vague and overbroad; and that the Town denied her equal protection of the law by singling out Willis for banishment. Willis also sought entry of a preliminary injunction requiring the Town to permit her to return to the Depot. The Town filed a motion to dismiss, and the matter was referred to a magistrate judge for a report and recommendation.

The magistrate judge recommended that the motion to dismiss be denied except as to Willis's claim that her associational rights were violated. The magistrate judge also recommended that Willis's motion for a preliminary injunction be granted. The Town objected to the magistrate judge's report and recommendation.

The district court considered the Town's objections and entered an order denying the motion for a preliminary injunction. And while the Town had yet to file an answer and no discovery had been ordered, the district court directed that the Town's motion to dismiss would be converted to a motion for summary judgment. The court gave the parties thirty days to file any additional materials relevant to consideration of the summary judgment question.

Thirty days after the district court's order converting the motion to dismiss to a motion for summary judgment, the Town submitted a memorandum in support of the granting of summary judgment, along with an additional batch of affidavits. That same day, Willis filed her memorandum opposing summary judgment, along

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with additional affidavits and exhibits. Willis also submitted an affidavit under Rule 56(f) of the Federal Rules of Civil Procedure, alleging summary judgment was premature because she did not have the opportunity to seek discovery on her claims. The affidavit sufficiently informed the district court of the discovery Willis needed to oppose the motion for summary judgment.

The district court thereafter granted summary judgment in favor of the town. The court concluded that Willis's recreational dancing did not amount to speech and thus was not constitutionally protected, a conclusion that the district court believed defeated Willis's free speech and association claims as well as her vagueness and over-breadth claims. To the extent that Willis had a First Amendment right to receive information provided during the Depot events, the district court concluded that the Town's decision to ban Willis because of her conduct and attire was a reasonable regulation of conduct unrelated to her right to receive information.

As to Willis's substantive due process claim, the district court concluded that Willis had no protected liberty interest "to be present on all property owned by the government." I A. 217. The court also concluded that because the Town's actions did not deprive Willis of any constitutionally protected right, her procedural due process claim necessarily failed. Alternatively, the court concluded that Willis had an opportunity to appeal the Depot Committee's decision to the Board of Aldermen, which the court believed to be sufficient to satisfy the requirements of due process. The court rejected Willis's Equal Protection claim by noting that there was no evidence of similarly situated persons who were treated more favorably by the Town. As to Willis's Rule 56(f) motion for additional discovery, the...

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