Hershey v. Turner

• Decision Date: 21 April 2020
• Docket Number: Case No. CIV-19-344-SPS
• Parties: RICHARD HERSHEY, Plaintiff, v. STEVE TURNER, JERRID FREEMAN, BEN HARDCASTLE, DEBORAH LANDRY, CHRISTINE LANDSAW, KIRSTI WILMON f/k/a KIRSTI COOK, JAMES MYNATT, JIM ROBERTSON, and AMANDA CRAIG, Defendants.
• Court: U.S. District Court — Eastern District of Oklahoma

RICHARD HERSHEY, Plaintiff, v. STEVE TURNER, JERRID FREEMAN,BEN HARDCASTLE, DEBORAH LANDRY,CHRISTINE LANDSAW, KIRSTI WILMON f/k/a KIRSTI COOK,JAMES MYNATT, JIM ROBERTSON, and AMANDA CRAIG, Defendants.

Case No. CIV-19-344-SPS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

April 21, 2020

OPINION AND ORDER

This case arises out of a series of encounters Plaintiff Richard Hershey had at Northeastern State University ("NSU") in Tahlequah, Oklahoma. The Plaintiff has sued the President of NSU, Dr. Steve Turner, in his official capacity as President of the University, along with Dr. Jerrid Freeman, Ben Hardcastle, Dr. Deborah Landry, and Christine Landsaw in their official capacities as members of the Cabinet of the President at NSU. Additionally, the Plaintiff has sued Kirsti Wilmon, Assistant Director for Conferences and Marketing of NSU, in her individual capacity, along with Sergeant James Mynatt, Jim Robertson, and Amanda Craig, all police officers at NSU, in their individual capacities. The Defendants now all seek dismissal of the Plaintiff's Complaint. For the reasons set forth below, the Court finds that the Defendants' Motion to Dismiss Plaintiff's First Amended Complaint and Brief in Support [Docket No. 27] should be GRANTED IN

PART and DENIED IN PART.

I. Background

The Plaintiff states in his First Amended Complaint that he is a vegetarian whose ethical beliefs compel him to share his message with others, and that he is compensated by nonprofit organizations, including Vegan Outreach, for sharing his views and distributing free literature. The Plaintiff alleges that he had distributed free literature on the NSU campus since at least November 2013, but that since March 8, 2017, he has been prevented from doing so by police officers on the NSU campus. Moreover, he alleges that he has been denied the ability to rent table space in the University Center Lobby on multiple occasions.

The Plaintiff attached to his First Amended Complaint a copy of the NSU policy entitled "Freedom of Speech (Expressive Activity)," as well as a copy of his citation from Officer Robertson dated October 16, 2017. See Docket No. 25, Ex. 1-2. "A written document that is attached to the complaint as an exhibit is considered part of the complaint and may be considered in a Rule 12(b)(6) dismissal." Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991). See also Fed. R. Civ. P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."). Accordingly, the Court has no trouble considering the language of the policy and the Plaintiff's reference to it as part of the present motion to dismiss when necessary.

II. Procedural History

Plaintiff filed his original Complaint in this case on October 11, 2019, against theabove-named Defendants.¹ See Docket Nos. 1-2. All Defendants moved to dismiss the original Complaint, and the Plaintiff filed his First Amended Complaint on January 31, 2020. See Docket Nos. 24-25. The Defendants again moved to dismiss on February 14, 2020. See Docket No. 27. The Court has stricken all attendant deadlines in this case pending resolution of the Motion to Dismiss. See Docket No. 23. In his First Amended Complaint, the Plaintiff's claims, all pursuant to 42 U.S.C. § 1983, are set forth as follows: (i) Count I, alleging violations of the First and Fourteenth Amendments as to Defendants Turner, Freeman, Hardcastle, Landry, and Landsaw in their official capacities and requesting a declaratory judgment and injunctive relief; (ii) Count II, alleging violations of the First and Fourteenth Amendments against Defendant Wilmon in her individual capacity and requesting damages; and (iii) Count III, alleging violations of the First and Fourteenth Amendments as to Defendants Mynatt, Robertson, and Craig in their individual capacities and requesting damages.

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but the statement of the claim under Rule 8(a)(2) must be "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), citing Papasan v. Allain, 478 U.S. 265, 286 (1986). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that isplausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555, 556, 557, 570.

III. Analysis

The Defendants have moved to dismiss Plaintiff's First Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Defendants first collectively assert that claims predicated on injuries occurring prior to October 11, 2017 fall outside the two-year statute of limitations and are time barred. As to Count I, Defendants Turner, Freeman, Hardcastle, Landry, and Landsaw contend that the Plaintiff has failed to state a viable claim by only collectively grouping his allegations against them without specific facts to delineate allegations as to each individual. Additionally, Defendants contend that the Plaintiff's assertion that the "Freedom of Speech (Expressive Activity)" policy is facially unconstitutional is a legal conclusion based only on formulaic recitations of a First Amendment claim and therefore is insufficient. As to Count II, Defendant Wilmon asserts that Plaintiff has alleged insufficient facts to state a viable claim against her. As to Count III, Defendants Mynatt, Robertson, and Craig argue that the facts alleged do not support a claim against them and further contend that they are entitled to qualified immunity.

Count I: Official Capacity Claim

The Court first notes that "a state official in his or her official capacity, when sued for injunctive relief, [is] a person under § 1983 because 'official-capacity actions for prospective relief are not treated as actions against the State.'" Will v. Michigan Dept. ofState Police, 491 U.S. 58, 71 n.10 (1989), quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985). Here, Defendants Turner, Freeman, Hardcastle, Landry, and Landsaw assert, however, that the Plaintiff's First Amended Complaint is not sufficiently specific as to each of them because Count I refers to "the President's Cabinet" rather than each of them individually, and therefore fails to state a claim by only referring to them in a collective grouping. See Robbins v. Oklahoma, 519 F.3d 1242, 1249-1250 (10th Cir. 2008) ("In § 1983 cases, defendants often include the government agency and a number of government actors sued in their individual capacities. Therefore it is particularly important in such circumstances that the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations against the state.") (emphasis in original), citing Twombly, 550 U.S. at 564-565 & n.10.

But here, the Plaintiff alleged in the First Amended Complaint that these named Defendants comprised the "President's Cabinet" and that they make up the same official policy-making body, approved the relevant "Freedom of Speech (Expressive Activity" policy, and all engaged in the same conduct as acting policy makers at the time relevant in this case. The Court agrees with the Plaintiff that the First Amended Complaint is sufficient in this case. Count I of the First Amended Complaint is easily understood as alleging that all of the named Defendants alleged to be part of the "President's Cabinet" were policy makers who approved the policy at issue in this case and were behind his allegations in Count I. See, e. g., Birdsong v. Unified Government of Kansas City, Kan., 2014 WL 2216904, at *4 (D. Kan. May 29, 2014) ("Plaintiff's use of the collective 'defendants' inparagraphs 281-284 can reasonably be understood to mean that Birdsong is alleging that all four Defendants engaged in the alleged activities.") (emphasis in original). Cf. Bark v. Chacon, 2011 WL 1884691, at *5 (D. Colo. May 18, 2011) ("[T]he allegations pertaining to the individual Defendants all relate to a single incident, and all of the individual Defendants are alleged to have been present at that incident and to have acted in concert. Unlike Robbins, this is not a case where the allegations against the individual Defendants are entirely different in character and therefore mistakenly grouped in a single allegation.") (internal quotation omitted). "The key inquiry in evaluating the viability of a complaint under Rule 8(a)(2) is whether each defendant knows why he or she was named in the complaint." Ferguson v. Board of County Commissioners of Sierra County, 2013 WL 12334214, at *5 (D. N.M. April 2, 2013). That standard has been met here.

Plaintiff's First Amended Complaint appears to make two challenges to the NSU policy in Count I: (i) a facial challenge to the policy with regard to the requirement of advance reservation for activities near sidewalks and road intersections, as well as (ii) an as-applied challenge to specific instances of enforcement of the policy against him. Here, the official-capacity Defendants have not moved to dismiss the Plaintiff's as-applied challenge in Count I, but they do assert that the Plaintiff has failed to state a claim because his allegation that the policy is facially unconstitutional is based on formulaic recitations of the elements of a claim and therefore is insufficient. Defendants have provided nothing in support of this assertion and Plaintiff did not address this argument at all. This does not, however, result in automatic dismissal of Plaintiff's...