Kanelos v. Cnty. of Mohave
| Decision Date | 06 September 2012 |
| Docket Number | No. CV–10–8099–PCT–GMS.,CV–10–8099–PCT–GMS. |
| Citation | 893 F.Supp.2d 1001 |
| Parties | Jim KANELOS, Plaintiff, v. COUNTY OF MOHAVE, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
OPINION TEXT STARTS HERE
Hector Joseph Diaz, Sarah Roshanne Anchors, Quarles & Brady LLP, Phoenix, AZ, for Plaintiff.
Eileen Dennis Gilbride, Georgia A. Staton, Jonathan Paul Barnes, Jones Skelton & Hochuli PLC, Phoenix, AZ, for Defendants.
Pending before the Court are Defendants' Motion for Summary Judgment (Doc. 86) and Plaintiff's Motion for Partial Summary Judgment (Doc. 88). For the reasons discussed below, Defendants' motion is granted in part and denied in part and Plaintiff's motion is granted in part and denied in part. Judgment is entered on all Plaintiff's claims.
Plaintiff Jim Kanelos is a resident of Mohave County and a member of the Western States Constitutionalist Alliance (“WSCA”). The WSCA passes out literature several times a year in front of the Mohave County Administration Building (the “MCAB”), located in Kingman, Arizona. This literature typically includes a copy of the United States Constitution or Declaration of Independence and a leaflet about joining the WSCA.
On October 13, 2010, Plaintiff stood outside the MCAB's main entrance distributing literature to people entering and exiting the building. He was located about 25 to 30 feet from the building's front doors.1 As he passed out flyers, Plaintiff was approached by non-party Richard Weldon, County Risk Manager, and Defendant Bill Ekstrom, Deputy County Attorney. Weldon and Ekstrom told Plaintiff he was prohibited from passing out literature at the building pursuant to Administrative Procedures (3–1): Administration Building & Facilities Rules and Policies (“AP 3–1”). Plaintiff immediately stopped distributing literature.
AP 3–1 was drafted by Defendant Ron Walker, the Mohave County Manager, with the assistance of the County's civil attorneys. On March 1, 2010, Walker signed AP 3–1, thereby enacting it. Plaintiff opposes the following provisions in AP 3–1:
PROHIBITED ACTIVITIES: Noart of the Administration Building and Facilities may be used for the following purposes.
1. Political campaigning, including solicitation either in support of or against a political candidate, or potential political candidate, an issue before or potentially before the voters or an incumbent government official or employee. This provision does not prohibit the expression of personal opinions or beliefs if done in a manner that does not disrupt the business conducted within the premises.
2. Distribution of or gathering signatures on petitions including nomination, referendum or recall petitions.
3. Solicitation of campaign contributions.
4. The erection or display of campaign signs or banners. Provided that this provision will not prohibit a political sign of reasonable size attached to or painted on a vehicle, while the vehicle is parked on the premises for the legitimate conduct of government business. This provision will also not prohibit the wearing of campaign buttons or apparel in support of or against a candidate or issue while the wearer is on the premises for the conduct of legitimate government business.
5. Leafleting or distribution of material either in support of or against a candidate or an issue before the voters.
6. Political assembly, rallies, demonstrations or picketing.
No Solicitation: No part of the Administration Building and Facilities may be used for the following purposes.
....
2. Rallies, demonstrations, picketing or assembly, whether for political, commercial or personal purposes.
3. Solicitation of funds.
4. Leafleting or distribution of flyers or other literature.
(Doc. 87–1, Ex. F at 2). These provisions, in essence, prohibit five types of activities at the MCAB and on its grounds: 1) political campaigning, 2) distribution of petitions or leaflets, 3) solicitation of funds, 4) display of signs, and 5) rallies, demonstrations, picketing or assembly.
Defendants Tom Sockwell, Gary Watson, and Buster Johnson, who together constitute the Mohave County Board of Supervisors,2 state that they “supported the implementation of” AP 3–1. (Doc. 64, ¶ 9). The Board did not, however, review AP 3–1 before its enactment, as the Board had delegated to Walker the authority to institute policies for the building without the Board's approval. (Doc. 87–1, Ex. F at 1; Id., Ex. E at 26:22–27:10).
Prior to the enactment of AP 3 –1, Ekstrom had advised both the prior County Manager and Walker to restrict certain expressive activities at County buildings. In 1990, Ekstrom wrote a letter advising the County Manager to prohibit political campaigning and political advertisements on the premises of the County's buildings to “avoid any appearance as a County ... [of] supporting particular persons or issues.” (Doc. 87, Ex. J). In 2006, the County moved its offices to the current building. In 2007, Ekstrom wrote a letter to Walker and other County officials stating that County buildings are not public forums and are to be strictly used for County business, and that individuals who “approach or harass” people conducting County business should be advised to “leave the premises and [take] their activity to [ ] traditional public forums.” ( Id.). Ekstrom contends that this practice of prohibiting political activities at County buildings is based on A.R.S. § 11–410 (2001), which states, in relevant part, that “[a] county shall not use its personnel, equipment, materials, buildings or other resources for the purpose of influencing the outcome of elections.” (Doc. 87, Ex. C at 25).
Plaintiff claims that prior to AP 3–1's enactment, he distributed literature at the MCAB on multiple occasions without being told to leave. Plaintiff wishes to continue distributing WSCA literature in front of the building, but states that he is prevented from doing so by County officials' enforcement of AP 3–1. (Doc. 89, ¶ 35).
In his Amended Complaint, Plaintiff seeks a declaratory judgment from this Court pursuant to 28 U.S.C. § 2201 (2010) that AP 3–1 violates his First Amendment rights. (Doc. 61, ¶¶ 35–38). Based on this alleged First Amendment violation, Plaintiff also brings claims against the individual Defendants under 42 U.S.C. § 1983 for compensatory and nominal damages. ( Id. at ¶¶ 39–43). In addition, Plaintiff seeks punitive damages from defendants Ekstrom, Sockwell, and Walker.
Defendants now move for summary judgment on all claims. (Doc. 86). Plaintiff, meanwhile, moves for summary judgmenton his declaratory relief claim. (Doc. 88). Oral argument regarding these motions was held on August 10, 2012.
I. Legal Standard
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Substantive law determines which facts are material and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). When the nonmoving party “bear[s] the burden of proof at trial as to an element essential to its case, and that party fails to make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element, then summary judgment is appropriate.” Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
II. AnalysisA. Section 1983 Claims against Smith, Johnson, Sockwell and Watson
Plaintiff concedes that Defendant Smith is entitled to summary judgment on Plaintiff's § 1983 claim against him in his individual capacity. ( See Doc. 91 at 12 n. 1) (“Plaintiff requests the Court dismiss defendant Matt Smith.”). For the reasons discussed below, the Court will also grant summary judgment to Defendants Johnson, Sockwell, and Watson in their individual capacities.
Plaintiff contends that Johnson, Sockwell, and Watson are subject to supervisory liability under 42 U.S.C. § 1983. “Supervisory liability is imposed against a supervisory official in his individual capacity.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991). An official is not automatically liable for the acts of those he supervises under the theory of vicarious liability, but may incur liability where he “implement[s] a policy so deficient that the policy ‘itself is a repudiation of constitutional rights' and is ‘the moving force of the constitutional violation.’ ” Redman v. County of San Diego, 942 F.2d 1435, 1446–47 (9th Cir.1991) (citing Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.1987)).
Plaintiff has provided no evidence that Board members Johnson, Sockwell, or Watson “implemented” or were the “moving force” behind AP 3–1. AP 3–1 was drafted and enacted not by the Board, but by Ron Walker, the Mohave County Manager. (Doc. 87–1, Ex. F at 1; Ex. E at 26:22–27:10). Because the Board has delegated policy-making authority regarding County buildings to Walker, he had the authority to enact and implement AP 3–1 without the Board's approval. Id. Plaintiff contends that the Board members are liable because they “supported” the policy by not repealing it and by not removing Walker from his post as County Manager. Without more, however, their passive support of AP 3–1 does not make the Board members the “moving force” behind AP 3–1.
Plaintiff further contends that Supervisor Johnson “supported the Policy by stopping the Zannas...
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