Johnson v. Perry

• Decision Date: 08 June 2017
• Docket Number: August Term, 2016,Docket No. 15-3671
• Citation: 859 F.3d 156
• Parties: Norman JOHNSON, Plaintiff–Appellee, v. Stephen D. PERRY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

859 F.3d 156

Norman JOHNSON, Plaintiff–Appellee,

v.Stephen D. PERRY, Defendant–Appellant.

Docket No. 15-3671

August Term, 2016

United States Court of Appeals, Second Circuit.

Argued: October 17, 2016

Decided: June 8, 2017

JOHN R. WILLIAMS, New Haven, Connecticut, for Plaintiff–Appellee.

LORI A. MIZERAK, Office of Corporation Counsel for the City of Hartford, Hartford, Connecticut, for Defendant–Appellant.

Before: KEARSE, JACOBS, and LOHIER, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Stephen D. Perry, the principal of Capital Preparatory Magnet School ("Capital Prep") in Hartford, Connecticut, appeals from an interlocutory order of the United States District Court for the District of Connecticut, Warren W. Eginton, Judge , denying Perry's qualified-immunity-based motion to dismiss, by summary judgment, plaintiff Norman Johnson's claims that his First Amendment right of freedom of assembly and his state-law right to be free from the intentional infliction of emotional distress were violated by Perry in banning Johnson from attending virtually all Capital Prep events, on or off school property, because of his opposition to Perry's bullying and harassing efforts to compel Johnson's daughter to remain a member of the girls varsity basketball team. The district court denied Perry's summary judgment motion on the ground that his entitlement to qualified immunity cannot be determined without the resolution of genuinely disputed questions of material fact as to motivation and reasonableness; the court also sua sponte revived a previously dismissed claim that Perry's actions violated Johnson's right to due process, and it noted that there exist genuine issues of material fact to be tried with respect to that claim as well. On appeal, Perry challenges the court's decisions on the First Amendment and due process claims, contending that he is entitled to qualified immunity as a matter of law, even on the basis of the facts as Johnson views them.

For the reasons that follow we dismiss the appeal insofar as it pertains to the claimed due process violation (see Part II.A.1. below). Insofar as the appeal pertains to the First Amendment claim, we conclude that Perry's motion for summary judgment was properly denied insofar as Johnson complains of being banned from events beyond school property and from sports contests on school property to which the public is invited, but that Perry is entitled to qualified immunity as a matter of law to the extent that he banned Johnson from school property otherwise.

I. BACKGROUND

As this is an appeal from the denial of summary judgment, we view the record in the light most favorable to Johnson as the party against whom summary judgment was sought. And we describe the events giving rise to this action as Johnson contends they occurred, given Perry's assertion of the right to take this interlocutory appeal on the basis of "the plaintiff's version of the facts" (Perry brief on appeal at 4, 9).

A. Johnson's Daughter Withdraws From the Varsity Basketball Team

In 2011-2013, Johnson's daughter (to whom we refer as "JD") was a student at Capital Prep. Capital Prep required its students to participate in two sports. One of the sports in which JD participated was basketball. In her junior and senior years, she was a member of both the junior varsity ("JV") and varsity teams; but on the varsity team she received very little playing time. Both Johnson and his wife Bonnie Johnson ("Bonnie") urged varsity basketball coach Tammy Millsaps to allow JD to play more. Johnson approached Millsaps at numerous practices and games; he said he could work with JD and asked what he needed to do to improve her play. Millsaps responded simply that she would not guarantee anyone any amount of playing time. (See , e.g. , Deposition of Norman Johnson ("Johnson Dep."), at 23-25.)

JD, dissatisfied with her lack of playing time and with Millsaps's coaching, told her parents she felt she was being treated unfairly. In January 2013, in her senior year, she no longer wanted to be a member of the varsity team and wanted to be only on the JV team, where she actually got an opportunity to play the game. Her parents said they would support her decision whatever it was.

After a varsity basketball game on Saturday January 26, Johnson attempted once again to speak with Millsaps about more playing time for his daughter. When Millsaps responded that she didn't have time and would talk to him some other time, Johnson told Millsaps that from that moment on, JD would not be a member of the varsity team and would be playing only on the JV team. (See Johnson Dep. 38; id . at 71 ("I said, That's okay. You don't have to worry about it. She's not playing for you no more.... She'll just play JV.").)

Prior to the end of that game, Johnson and Bonnie had been discussing their intention to speak to Millsaps about more playing time for JD. They were overheard by another Capital Prep player's mother, who chastised them for expecting JD to play in as "fast paced [a] game as this" (January 31, 2013 email from Bonnie to Perry) or in "a high profile game like this" (Johnson Dep. 70). Johnson told the other mother that he did not appreciate her comment, but he did not get into an argument with her. (See id .) The parties dispersed without incident; but during the evening Bonnie received from the other mother "threa[ten]ing Instagram messages" (January 31, 2013 email from Bonnie to Perry) and texts to the effect that JD's playing "sucked" (Johnson Dep. 70).

The Johnsons, concerned that JD and the other player, when they next met, might get into a fight (see , e.g. , id . at 38), asked to meet with Millsaps, Perry, and the school's Director of Athletics, Chris Fulton. Bonnie and JD thereafter met with Millsaps and Fulton, but Perry did not attend. The discussion centered on JD's desire to withdraw from the varsity team. According to Bonnie's January 31 email to Perry, Millsaps did not contribute to the discussion at that meeting; but after Bonnie departed, Millsaps met with JD alone, said she could not guarantee JD any playing time, and said she viewed the entire incident as petty. Bonnie requested another meeting.

Johnson, Bonnie, and JD then met with Fulton. Perry was again invited, but did not attend. The Johnsons and Fulton amicably discussed JD's desire to be only on the JV team, where she could play, and not to be a member of the varsity team. At that meeting, "[e]verything was settled," meaning that JD "was going to play JV, and that was it." (Johnson Dep. 27.)

Nonetheless, Perry, who had declined the previous requests to attend meetings with JD and her parents, thereafter proceeded repeatedly to summon JD from her classes to meet with him in his office in the absence of her parents. In a span of five school days, Perry called JD to his office four times. With Fulton in attendance, Perry attempted to bully JD into remaining a member of the varsity team. JD—who recorded Perry's statements—reported to her parents that Perry "told [JD] that she better suit up and he didn't want to hear nothing about it no more, that she was going to play" varsity basketball. (Johnson Dep. 30-31.)

Perry's actual opinion, later acknowledged at a meeting attended by Perry, Johnson, Bonnie, JD, and the president of Hartford's Parent Teacher Organization ("PTO"), was that JD's basketball skills, while good, were "not good enough [for] play at a varsity championship level" (Johnson's Answer to Perry Interrogatory No. 2). But Perry needed JD to remain on the varsity roster so that the team would be eligible to compete for the state championship (see Johnson Dep. 19-20); hence, JD was being harassed to stay on the team while being told "you will be playing varsity, and I'm not going to guarantee you any playing time" (id . at 72).

On the night of February 6, the Johnsons sent Perry an email protesting his conduct, requesting a meeting, and demanding that he end the "bullying and harassment" of JD:

Our names are Norman G. and Bonnie G. Johnson parents of [JD] Johnson. It is imperative that you acknowledge this correspondence so that this bullying and harassment discontinue. On these dates you have pulled [JD] out of class 1/31/13, 2/1/13, 2/5/13, and 2/6/13 to discuss varsity basketball. After we told you that she is no longer a varsity basketball team player, due to her being targeted and harassed by Coach Tammy Millsaps. All of which knew [sic ] or should have known about. Instead you refuse to acknowledge the phone conversations, the personal visits and written correspondence made. Instead you have taken [JD] out of class and demand that she play varsity basketball ignoring the fact that we told you she was not to play. [JD] is on the junior varsity team and earning the second sports credit that is required of her. We are fully aware that [JD] is being pursued to sit on the bench on the varsity team in order to complete the roster. That is something she nor we desire for her to do.

Please consider this as a formal request to meet with all of the above immediately. We do not expect any retaliation (mistaken grades) being glared at and having to defend herself against 3 adults knowing full well she is unevenly matched.

(February 6, 2013 Email from Johnson and Bonnie to Perry.)

B. The February 7, 2013 Meeting

On Thursday February 7, Bonnie called Perry to request a meeting. Perry then called Johnson to say that Perry was "sick and tired of hearing of [Bonnie] requesting ... meetings." (Johnson Dep. 32.) However, Perry yielded when Johnson said they were on their way to the school to see Perry. At the school, Johnson, Bonnie, and JD met with Perry and PTO president Millie Arcinegas.

Bonnie began by complaining of Perry's bullying of JD with his insistence that she remain on the varsity team and suit up despite her decision to leave the team because she never got to play. Perry responded by "sa[ying] that [tha]t was not bullying. Millie told him that yes, it was," to which Perry "shrugged his...