Nally v. Graham
| Citation | 551 F.Supp.3d 1062 |
| Decision Date | 29 July 2021 |
| Docket Number | Case No. 21-2113-JAR-TJJ |
| Parties | Jared NALLY, et al., Plaintiffs, v. Ronald GRAHAM, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Darpana M. Sheth, Pro Hac Vice, Foundation for Individual Rights in Education, Washington, DC, Katlyn A. Patton, Pro Hac Vice, Foundation for Individual Rights in Education, Philadelphia, PA, Stephen D. Bonney, Bonney Arbitration & Mediation, Kansas City, MO, for Plaintiffs.
Christopher Allman, Terra D. Morehead, Office of United States Attorney, Wendy A. Lynn, U.S. District Court, Kansas City, KS, for Defendants.
Plaintiffs Jared Nally and the Indian Leader Association filed this civil rights lawsuit against Defendants Ronald Graham, Haskell Indian Nations University, Tony Dearman, and the Bureau of Indian Education, seeking redress for various constitutional violations and for breach of a 1989 Settlement Agreement governing editorial control and management of the student newspaper, The Indian Leader. Before the Court is Defendant Graham's Motion to Dismiss Individual Capacity Claims Against Him Under Fed. R. Civ. P. 12(b)(6) (Doc. 19). The motion is fully briefed and the Court heard oral argument on July 22, 2021. Having fully considered the briefs and the parties’ oral arguments, the Court grants Defendant Graham's motion as described more fully below.
To survive a motion to dismiss brought under Rule 12(b)(6), "the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims."1 The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than "a sheer possibility."2 "[M]ere ‘labels and conclusions,’ and ‘a formulaic recitation of the elements of a cause of action’ will not suffice; a plaintiff must offer specific factual allegations to support each claim."3 Finally, the Court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.4
The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court "must take all of the factual allegations in the complaint as true, [but] we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ "5 Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.6 Second, the court must determine whether the factual allegations, when assumed true, "plausibly give rise to an entitlement to relief."7 "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."8
The following material facts are alleged in the Complaint and assumed to be true for purposes of resolving this motion.
Haskell Indian Nations University ("HINU") is one of two tribal colleges that is wholly funded and operated under the control and management of the Bureau of Indian Education ("BIE"), an agency within the U.S. Department of the Interior. Plaintiffs in this case are HINU student Jared Nally and the Indian Leader Association ("ILA"), an unincorporated student organization that publishes HINU's student newspaper, The Indian Leader. Since January 2020, Nally has been the editor-in-chief of The Indian Leader.
On March 2, 2021, Plaintiffs filed this Complaint against HINU, BIE, BIE Director Tony L. Dearman in his official capacity, and then-HINU President Graham in both his official and individual capacities.9 Plaintiffs allege the following claims: (1) First Amendment retaliation against Nally under the Administrative Procedures Act ("APA") for declaratory and injunctive relief against all Defendants in their official capacities; (2) First Amendment retaliation against the ILA under the APA for declaratory and injunctive relief against all Defendants in their official capacities; (3) First Amendment retaliation under Bivens against Graham in his individual capacity; (4) First Amendment overbreadth challenge to the HINU Campus Expression Policy under the APA for declaratory and injunctive relief against all Defendants in their official capacities; (5) First Amendment vagueness challenge to the HINU Campus Expression Policy under the APA for declaratory and injunctive relief against all Defendants in their official capacities; (6) Fifth Amendment due process violation under the APA for declaratory and injunctive relief against all Defendants in their official capacities; and (7) violation of 1989 Settlement Agreement under the APA for declaratory and injunctive relief against all Defendants in their official capacities.
More than 30 years ago, the ILA and several student journalists sued HINU under 42 U.S.C. § 1983 for violating their First Amendment rights after a faculty advisor of The Indian Leader rested editorial control of the paper from students.10 United States District Judge Richard Rogers granted the ILA a temporary restraining order prohibiting publication of the newspaper issue put together by the faculty advisor. In September 1989, HINU entered into a Settlement Agreement with the ILA, which Judge Rogers approved. Under the Settlement Agreement, the ILA and the editorial board of the newspaper have the right to editorial control over the contents of the newspaper. The Settlement Agreement prohibits prior restraint and sets forth requirements for allocation of moneys received by HINU on behalf of the ILA, including student activity fees.
In 2014, Haskell adopted the university's "CIRCLE" values. CIRCLE is an acronym that stands for "Communication, Integrity, Respect, Collaboration, Leadership, and Excellence." Haskell maintains a Code of Conduct that applies to all students. The CIRCLE values are incorporated into the Code of Conduct and each word is further defined therein. The Code of Conduct contained a Campus Expression Policy that provided: "Discussion and expression of all views is permitted, consistent with Haskell's CIRCLE values and subject only to requirements for the maintenance of order."11
Additionally, in its section detailing the "Student Grievance Process," Haskell's Code of Conduct references the Office of Student Rights and instructs students to access its Student Complaint Policy and Procedures and the Student Complaint form on its website. Since at least October 19, 2020, the text of Haskell's Office of Student Rights website simply repeats the classic placeholder text "lorem ipsum" and related filler text.
Highly summarized, Nally engaged in the following newsgathering, reporting, and advocacy activities on behalf of himself and The Indian Leader in 2020: (1) investigated, reported, and criticized HINU's reporting of student data to the United States Census Bureau, including its reporting of student racial identifiers; (2) while investigating a story about HINU's increase in student fees, recorded a conversation with a HINU financial aid officer without first obtaining consent and used the recording in an editorial he authored and published; (3) objected, along with the ILA, to the replacement of the newspaper's faculty advisor with an advisor from the administration, including by altering its Plan of Operations to allow the ILA to nominate advisors for appointment by HINU and remove an advisor by a majority vote of the ILA's officers; and (4) requested information from local government about the death of a beloved HINU cafeteria worker.
On October 16, 2020, Graham emailed Nally a written memorandum on official university letterhead from the Office of the President with the subject line "Directive." Director Dearman and "BIE Legal" were copied on the Directive. In the memorandum, Graham accused Nally of "attacking" HINU employees, and referred to Nally's criticism or unfavorable coverage of HINU, its administration, or faculty. The memorandum concluded with the following:
Nally understood the Directive to mean that if he continued to engage in routine journalistic activities, he could be subject to discipline under the Code of Conduct. He claims it had a chilling effect on his expression as a student and a journalist: he chose not to pursue an issue with a missing scholarship credit, and he declined to report on or publish stories critical of the HINU administration. Other student journalists were similarly chilled.
On October 26, 2020, Lindsie Rank, an attorney for the Foundation for Individual Rights in Education ("FIRE") wrote a letter marked "URGENT," to Graham explaining that his Directive was unlawful. Despite providing him with a November 2, 2020 deadline to respond, Graham did not respond until January 13, 2021, when he...
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