Hirt v. Unified Sch. Dist. No. 287
| Decision Date | 03 April 2018 |
| Docket Number | Case No. 17–2279–JAR–GEB |
| Citation | 308 F.Supp.3d 1157 |
| Parties | Gene HIRT and Eric S. Clark, Plaintiffs, v. UNIFIED SCHOOL DISTRICT NO. 287, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Gene Hirt, Lyndon, KS, pro se.
Eric S. Clark, Williamsburg, KS, pro se.
J. Steven Pigg, Lauren E. Laushman, Fisher, Patterson, Sayler & Smith, LLP, Topeka, KS, for Defendants.
This matter is before the Court on three motions filed by Plaintiffs. For the reasons set forth below, Plaintiffs' Motion for Leave to File a Third Amended Complaint (ECF No. 45 ) is GRANTED ; Plaintiffs' Motion to Compel (ECF No. 58 ) is DENIED ; and Plaintiffs' Motion to Determine the Sufficiency of Answers and Objections (ECF No. 74 ) is GRANTED in part and DENIED in part .
The factual background of this case has been thoroughly explored in previous orders and will not be repeated in detail. In essence, plaintiffs Gene Hirt and Eric Clark are community members who assert claims against their local school district, Unified School District No. 287 ("District"), the school superintendent, Jerry Turner, and other district officials for alleged violations of their Constitutional rights under 42 U.S.C. § 1983.
In June 2015, Hirt attended a District school board meeting when an interaction during the meeting resulted in Turner banning Hirt from all school property. A July 13, 2015 letter from Turner to Hirt noted Hirt's "inability to express [himself] in a civil and socially acceptable manner." Since the July 2015 meeting, Hirt stopped attending school board meetings, and was later escorted from school property by law enforcement when Hirt and Clark attended an elementary school open house in August 2015. After this contact with law enforcement, Clark claims he stopped attending board meetings "solely because of fearing consequences that may arise from attending or speaking at those meetings." (ECF No. 63, at 10.)
In May 2017, Hirt and Clark, proceeding pro se, filed this lawsuit against the District, Turner (in both his official and individual capacities), and five school board members in their official capacities, claiming multiple Constitutional and statutory violations. Hirt asserts his prohibition from board meetings, without an opportunity to be heard, violates his First, Fifth, and Fourteenth Amendment rights. Clark claims his First Amendment rights have also been violated, because he now fears attending or speaking at board meetings. In addition, Plaintiffs allege Defendants violated both the Kansas Open Meetings Act2 and the Kansas Open Records Act3 by prohibiting Hirt's attendance at meetings and failing to respond to Plaintiffs' records requests when asked to produce a copy of the policy being enforced.
Plaintiffs originally filed their lawsuit against seven defendants (Compl., ECF No. 1; Am. Compl., ECF No. 6), but later voluntarily dismissed their official-capacity claims against the five school board members and the official-capacity claim against Turner (ECF No. 49). Plaintiffs' remaining claims are those against the District and the individual capacity claims against Turner.
Upon filing the case, Plaintiffs sought a preliminary injunction to enjoin Defendants from taking "adverse action against Plaintiff Hirt based upon the July 13, 2015 letter" and from enforcing the "ad hoc policy" requiring them to express themselves in a "socially acceptable manner" at school board meetings. (ECF No. 4, at 11.) During briefing on the injunction issue, Turner mailed a letter to Hirt on June 14, 2017, which permitted Hirt to attend any meeting or event on District property to which the public is invited, so long as he "refrain[s] from disruptive behavior" and "limit[s] [his] participation in the meetings to the allotted three minutes for public comments." (ECF No. 20–3, Ex. 3.) Plaintiffs' motion for injunctive relief was then denied as moot by Chief Judge Robinson. (Mem. and Order, ECF No. 41.) The Court determined Turner's June 2017 letter to Hirt "permits precisely the behavior in which Plaintiffs wish to engage according to their motion for a preliminary injunction, i.e. , participation in the patron forum portion of school board meetings." (Id. at 12.)
Plaintiffs sought reconsideration of Judge Robinson's order, which the Court denied. (Mem. Order, ECF No. 62.) Plaintiffs also sought to file a Second Amended Complaint, which was unopposed by Defendants. (Order, ECF No. 59.) Soon after the filing of that motion, however, Plaintiffs sought to file a Third Amended Complaint, which Defendants predictably oppose. Plaintiffs also filed a motion to compel certain discovery responses from Defendants. (Motion, ECF No. 58.) After a December 22, 2017 conference with the undersigned to discuss the posture of the case and the pending motions, the parties were ordered to participate in mediation. (Orders, ECF Nos. 59, 66.)
Although the parties completed mediation (ADR Rpt., ECF No. 80), the effort was unsuccessful. Plaintiffs filed a second discovery motion (ECF No. 74) and all pending motions are now ripe for the Court's decision. The Court addresses each motion in the order of filing.
Plaintiffs ask the Court for leave to file a Third Amended Complaint. The proposed pleading adds eleven paragraphs to their previous pleading, including: six paragraphs of factual allegations (¶¶ 34.b—34.g); three additional causes of action (Counts IX—XI, ¶¶ 59.b–59d); and two additional requests for relief (¶¶60.4 (6) & (7) ).
The focus of the amendments appears to be both the June 2017 letter, permitting Hirt to attend school events specifically open to the public, and the Court's October 23, 2017 denial of an injunction. Plaintiffs' prior focus had been the District's enforcement of the "ad hoc policy" limiting Plaintiffs' speech to a "socially acceptable manner," based on the July 13, 2015 letter to Hirt. Plaintiffs now contend, because the Court found the "socially acceptable manner" policy is no longer being enforced, the District's continued restrictions on Plaintiffs' rights are apparently the result of either that earlier policy or some "as yet unknown policy" articulated by the June 14, 2017 letter. Plaintiffs interpret the 2017 letter to limit Hirt's (and by extension, allegedly, Clark's) access to school property solely for public events. Plaintiffs consider the 2017 letter as a point of "continuing restriction" that has not yet been included in the pleadings. They seek to add three additional causes of action, including violation of Hirt's First Amendment rights (Count IX); violation of Hirt's Fifth and Fourteenth Amendment rights (Count X); and violation of Clark's First Amendment rights (Count XI), all resulting from the "as yet unknown policy."
Under the Federal Rules, the standard for permitting a party to amend his or her complaint is well established. A party may amend its pleading as a matter of course under Fed. R. Civ. P. 15(a)(1), either before the responding party answers or within 21 days after service of a responsive pleading. However, in cases such as this, where the time to amend as a matter of course has passed, without the opposing party's consent a party may amend its pleading only by leave of the court under Rule 15(a)(2).
Rule 15(a)(2) provides leave "shall be freely given when justice so requires," and the decision to allow an amendment is within the sound discretion of the court.4 The court considers a number of factors in deciding whether to allow an amendment, including timeliness, prejudice to the other party, bad faith, and futility of amendment.5 In exercising its discretion, the court must be "mindful of the spirit of the federal rules of civil procedure to encourage decisions on the merits rather than on mere technicalities."6 The Tenth Circuit acknowledged that Rule 15 is intended "to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties,’ "7 especially in the absence of bad faith by an offending party or prejudice to a non-moving party.8 With these standards in mind, the Court evaluates Plaintiffs' motion.
Plaintiffs argue the proposed amendment is timely because the request to amend was filed by the November 1, 2017 deadline established in the Scheduling Order. (ECF No. 33.) They contend the amendment is necessary to add additional causes of action and factual allegations to support the additional claims, and they maintain Defendants will not suffer substantial prejudice because this case is in its early stages.
Defendants oppose the amendment because they believe the amendment is futile. They assert Hirt has no First Amendment right to enter school property during school hours, nor an interest in entering school property during school hours which would be protected by the Fourteenth Amendment. They further argue Clark is not "chilled" by his speculation of an "unknown policy." Defendants also maintain Plaintiffs' request to amend was unduly delayed, because Hirt received the June 14, 2017 letter prior to filing the Second Amended Complaint (ECF 40). They contend Plaintiffs have no adequate explanation for waiting until now to assert new claims based on that letter or some "unknown policy." Additionally, Plaintiffs have already been deposed (see ECF Nos. 34, 35, and 40). Defendants argue the addition of new claims—after Plaintiffs' depositions are complete—would be prejudicial. The arguments of the parties are addressed in turn.
Of the factors analyzed by the Court under Rule 15(a)(2), Defendants first oppose Plaintiffs' amendment based on futility. As the party opposing amendment, Defendants bear the burden of establishing its futility.9
"A proposed amendment is futile if the complaint, as amended, would be subject to...
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