Hershey v. The Curators of the Univ. of Mo.
| Decision Date | 13 April 2022 |
| Docket Number | 2:20-CV-04239-MDH |
| Parties | RICHARD HERSHEY, Plaintiffs, v. THE CURATORS OF THE UNIVERSITY OF MISSOURI, et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Before the Court is Defendants' motion to dismiss Plaintiff's Second Amended Complaint (Doc. 69). All defendants move the Court to dismiss the above-captioned case pursuant to 12(b)(6). For the reasons set forth herein, the motion is GRANTED IN PART and DENIED IN PART.
Plaintiff brings claims against a variety of individuals related to several incidents on campuses of the University of Missouri (“University”). Plaintiff often handed out flyers and brochures, and he advocated for vegetarian or vegan eating. Plaintiff claims that the University's policy that placing regulations on speech on areas of campus is unconstitutional. More specifically, he claims that Defendants applied the policy, CRR 110.010 unconstitutionally against him and infringed on his First Amendment rights by restricting his speech based on content.
Plaintiff alleges that, in December of 2021, he was distributing literature at the University of Missouri-Columbia (MU) and was asked by a Jane Doe who identified herself as “with operations” to relocate to another location on campus. Doc. No. 65 ¶ 23. Plaintiff claims that Ms. Doe called University police after Plaintiff “declined to remove himself from his desired location.” Id. ¶ 24. Plaintiff asserts that he spoke with a MU police officer for “approximately ten minutes, ” who purportedly told Plaintiff he would be removed from campus if he made students feel uncomfortable or if he was otherwise rude. Id. ¶¶ 24, 25. He claims that “the University's actions interfered” with his protected speech activities and that the officer's presence “deterred some students from accepting a booklet from Hershey.” Id. ¶¶ 27, 28.
Plaintiff next alleges that, on August 23, 2021, he was distributing literature regarding vegetarianism on the University of Missouri-St. Louis (UMSL) campus. Id. ¶ 29. Plaintiff alleges that UMSL staff “demanded that he distance himself farther from his intended audience outside the [Millenium Student Center].” Id. ¶ 32. Plaintiff names as a defendant Dorian Hall (“Hall”), the Director of the Millenium Student Center, and claims that Director Hall “directed his staff to move Hershey farther away from the door.” Id. ¶ 33. Plaintiff alleges that “UMSL's actions interfered with Hershey's lawful and protected speech activities” and that the “staff's presence” deterred students from accepting Hershey's literature.” Id. ¶¶ 36, 37.
Plaintiff next asserts that, on May 7, 2021, he was distributing literature on the Missouri University of Science and Technology (Missouri S&T) campus when he was approached by Sergeant Mark Ritter (“Ritter”) and told he “had to leave the University.” Id. ¶¶ 38, 41, and 54. Plaintiff claims that Ritter “looked at the booklet for several seconds” and “arbitrarily, in response to the content and viewpoint of the booklet, ” told Plaintiff he was “prohibited from handing out his literature” and that he was on “private property.” Id. ¶¶ 42, 43. Plaintiff concedes that Ritter “relent[ed]” after speaking with his police chief. Id. ¶ 55. Plaintiff alleges that “Ritter's actions interfered with Hershey's lawful and protected speech activities and caused Hershey to not offer his booklets to some of the passersby.” Id. ¶ 52. Plaintiff alleges that Ritter's presence deterred students from accepting booklets. Id. ¶ 53.
Last, Plaintiff alleges that, on December 5, 2018, he was distributing booklets regarding vegetarianism on MU's campus. Id. ¶ 56. He contends that Nancy Monteer, the Director of Campus Dining (“Monteer”), “arbitrarily, in retaliation based on the content and viewpoint of the booklet, ” confronted Plaintiff and “yelled” at him to “get away” from the dining hall doors. Id. ¶ 68. Plaintiff alleges his confrontation with Monteer culminated in Plaintiff “rais[ing] his arms up to protect himself from Monteer's increasingly aggressive advances.” Id. ¶ 78.
Under 42 U.S.C. § 1983, Plaintiff brings suit against the Board of Curators of the University of Missouri (“University”); the individual members of the Board of Curators Julia Brncic, Darryl Chatman, Maurice Graham, Jeffrey Layman, Greg Hoberock, Phillip Snowden, David Steelman, Robin Wenneker, and Michael Williams (“Curators”); University President Mun Choi; and the Chancellors and former Chancellor of other MU campuses Alexander Cartwright, Mohammed Dehghani, and Kristin Sobolik (“Chancellors”) in their official capacities. Plaintiff brings § 1983 claims against Director of Campus Dining Nancy Monteer, Sergeant Mark Ritter, Director of the Millenium Student Center Dorian Hall, and Jane Doe in both their official and individual capacities. Plaintiff asserts claims under Missouri's Campus Free Expression Act (“CFEA”) against all Defendants.
In Count I, Plaintiff asserts a Section 1983 and Campus Free Expression Act claim for “Violations of the First Amendment . . . and of Plaintiff's Rights Under the CFEA - Unlawful University Policies.” Plaintiff claims the University system policy (referred to as ‘Collected Rules and Regulations' or ‘CRRs') Section 110.010 is unconstitutional and violates the CFEA (). Plaintiff claims that the policy's requirement for written permission and/or a permit constitutes a prior restraint and impermissibly grants the decision-maker unfettered discretion. Id. ¶ 107. Plaintiff also claims the policy is unconstitutional and violates the CFEA in that individuals who are on University property without an appropriate purpose shall be deemed guilty of trespass. Id. Plaintiff further alleges the policy is improper in that it forbids soliciting subscriptions. Id. Plaintiff asserts that Defendants “unconstitutionally and illegally applied Section 110.010 to Hershey...by maintaining the policy and ordering University personnel to enforce it against Hershey.” Id. ¶ 108.2. Plaintiff alleges that Monteer, Ritter, Hall, and Jane Doe directly interfered with Plaintiff's rights “by enforcing the policy against him” Id. ¶ 109.
In Count I, Plaintiff seeks compensatory and statutory damages, attorneys' fees pursuant to 42 U.S.C. § 1983 and the CFEA, a declaratory judgment stating that CRR 110.010 is void, and an injunction under the CFEA prohibiting Defendants from “continuing to publish and enforce” CRR 110.010.
In Count II, Plaintiff asserts a CFEA violation arising out of the 2018 MU incident. Plaintiff alleges Defendants violated the CFEA by “arresting, handcuffing, searching, and confining” Plaintiff in retaliation for his exercise of expressive activities. Id. ¶ 120.B. He alleges Defendants further violated the CFEA by “stating that he was banned from the University for one year.” Id. ¶ 120.C. Count III asserts a CFEA claim arising out of the Missouri S&T incident and Count IV asserts a CFEA claim arising out of the UMSL incident. Plaintiff seeks compensatory and statutory damages, attorney's fees, a declaratory judgment, and injunctive relief for his CFEA claims.
In Count V, Plaintiff asserts a pursuant to 42 U.S.C. § 1983 and CFEA claim against Defendants arising out of the December 2021 incident at MU. Plaintiff seeks compensatory and statutory damages, attorney's fees under both theories, a declaratory judgment, and injunctive relief under the CFEA.
A complaint must contain factual allegations that, when accepted as true, are sufficient to state a claim of relief that is plausible on its face. Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court “must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (internal citations omitted).
The complaint's factual allegations must be sufficient to “raise a right to relief about the speculative level, ” and the motion to dismiss must be granted if the complaint does not contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555, 570 (2007). Further, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
As described in more detail above, Plaintiff brings claims pursuant to the CFEA and 42 U.S.C. § 1983 against Defendants under the theory that they pursuant to University policy CRR 110.010 infringed his First Amendment rights on several occasions by restricting his speech based on content.
As a threshold matter, Defendants argue that Plaintiff lacks standing to bring his § 1983 claims contained in Counts I and V. Standing is a jurisdictional prerequisite to filing suit under Section 1983. Young America's Foundation v. Kaler, 14 F.4th 879, 887 (8th Cir. 2021). To establish standing, Plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. When challenging the constitutionality of a policy, a plaintiff “must show that its injury is fairly traceable to a challenged statutory provision, or as in this case, a university policy.” Id. at 888. If a policy was not applied to him, Plaintiff “does not have standing to challenge [this] policy.” Id. (...
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