Students for Life USA v. Waldrop

• Decision Date: 22 February 2016
• Docket Number: CIVIL ACTION 14–0157–WS–B
• Citation: 162 F.Supp.3d 1216
• Parties: Students for Life USA, etc., Plaintiff, v. Tony G. Waldrop, etc., et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

162 F.Supp.3d 1216

Students for Life USA, etc., Plaintiff,

v.Tony G. Waldrop, etc., et al., Defendants.

CIVIL ACTION 14–0157–WS–B

United States District Court, S.D. Alabama, Southern Division.

Signed February 22, 2016

Norman J. Gale, Jr., Norman J. Gale Jr., Attorney at Law LLC, Mobile, AL, David A. Cortman, Travis Christopher Barham, Lawrenceville, GA, David Jonathan Hacker, Alliance Defending Freedom, Folsom, CA, Kevin Hayden Theriot, Leawood, KS, for Plaintiff.

Windy Cockrell Bitzer, Hand Arendall, L.L.C., Christine Elizabeth H. Hart, Mobile, AL, for Defendants.

ORDER

WILLIAM H. STEELE, CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on the parties' cross-motions for summary judgment. (Docs. 97, 100). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 98-99, 101-04, 106-08, 110-11), and the motions are ripe for resolution. After careful consideration, the Court concludes that both motions are due to be granted in part and denied in part.¹

BACKGROUND

According to the amended complaint, (Doc. 29), the plaintiff is a student organization at the University of South Alabama (“the University”), located in Mobile, Alabama. The plaintiff seeks to promote its pro-life message through flyers, signs, peaceful demonstrations and other means. In October 2013 and again in February 2014, the plaintiff sought permission to place a “cemetery of innocents” at various campus locations, including an area between an academic building (“Shelby Hall”) and two intersecting public roads (“Old Shell Road” and “University Boulevard”). Permission to use such locations was denied by University officials. The plaintiff ultimately utilized an area around the student center (“the Speech Zone”) that the University's policy (“the First Policy”) identified as the only campus location permitted to be used for student speech. In August 2014, the University adopted another policy (“the Second Policy”), which expands the locations that can be used for student speech but which continues to prohibit such speech within an area (“the Perimeter”) that includes most spaces between the street side of campus buildings and the public sidewalks paralleling Old Shell Road and University Boulevard. (Id. at 4, 11, 13–20).

The amended complaint names as defendants, in their individual and official capacities: (1) the University's president, Tony Waldrop; (2) its vice-president for student affairs, John Smith; (3) its assistant vice-president for student affairs and dean of students, Michael Mitchell; and (4) the dean of its college of engineering, John Steadman. (Doc. 29 at 1).

Count One of the amended complaint alleges that the First and Second Policies violate the plaintiff's First Amendment rights of free speech. Count Two alleges that the First and Second Policies violate the plaintiff's due process rights, while Count Three alleges the policies violate the plaintiff's equal protection rights. The amended complaint seeks as relief: (1) a declaration that the Policies violate the plaintiff's constitutional rights; (2) an injunction against enforcement of the Policies and associated practices; (3) an award of nominal damages against the defendants individually; and (4) attorney's fees and costs. (Doc. 29 at 26-38).

The Court granted the defendants' motion to dismiss the amended complaint's requests for declaratory and injunctive relief with respect to the First Policy, on the grounds of mootness. (Doc. 49 at 3-10, 29). The Court also granted, on the grounds of qualified immunity, the motion to dismiss the amended complaint's demand for nominal damages against the individual defendants, except to the extent the demand is based on alleged viewpoint discrimination in violation of the First Amendment by Mitchell and Steadman in denying permission (under the First Policy) to use what is now the Perimeter for a cemetery of innocents. (Id. at 13–27, 29). The parties' cross-motions seek summary judgment in their favor as to all claims remaining after these rulings.²

DISCUSSION

Summary judgment should be granted only if “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). The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.”

Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The moving party may meet its burden in either of two ways: (1) by “negating an element of the non-moving party's claim”; or (2) by “point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden.” Id. “Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial.” Id. ; accord Mullins v. Crowell , 228 F.3d 1305, 1313 (11th Cir.2000) ; Sammons v. Taylor , 967 F.2d 1533, 1538 (11th Cir.1992).

“When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the nonmoving party.” United States v. Four Parcels of Real Property , 941 F.2d 1428, 1438 (11th Cir.1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir.1993).

“If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made.” Fitzpatrick , 2 F.3d at 1116 ; accord Mullins , 228 F.3d at 1313 ; Clark , 929 F.2d at 608.

“If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact.” Fitzpatrick , 2 F.3d at 1116. “If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof,’ the moving party is entitled to summary judgment.” Clark , 929 F.2d at 608 (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion ....”).

In deciding a motion for summary judgment, “[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant ....” McCormick v. City of Fort Lauderdale , 333 F.3d 1234, 1243 (11th Cir.2003).

There is no burden on the Court to identify unreferenced evidence supporting a party's position.³ Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited. Likewise, “[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment,” Resolution Trust Corp. v. Dunmar Corp ., 43 F.3d 587, 599 (11th Cir.1995), and the Court accordingly limits its review to those arguments the parties have expressly advanced.

I. Second Policy.

The Second Policy provides in pertinent part as follows:

For USA students or employees, all areas of the University campus are open for expressive activities, except for the following:

• Areas between the street side of University buildings and facilities on the periphery of campus from the portal of North Drive to the corner of campus at Old Shell Road and University Boulevard and to the portal of Stadium Drive and the public sidewalks ....

(Doc. 29-10 at 3-4). This closing of the Perimeter to expressive activity is the plaintiff's sole challenge to the Second Policy. (Doc. 29 at 27-30, 33, 36). As noted, the amended complaint alleges that the Second Policy violates the plaintiff's free speech, due process and equal protection rights. (Id. at 26–37).

A. Free Speech.

“[T]he Supreme Court has broadly discerned three distinct (although not airtight) categories of government property for First Amendment purposes: traditional public fora, designated public fora, and limited public fora.” Bloedorn v. Grube , 631 F.3d 1218, 1230 (11th Cir.2011). Identifying which is at issue is important, because “the degree of scrutiny we place on a government's restraint of speech is largely governed by the kind of forum the government is attempting to regulate.” Id. For both traditional and designated public fora, “a time, place, and manner restriction can be placed ... only if it is content neutral, narrowly tailored to achieve a significant government interest, and leaves open ample alternative channels of communication.” Id. at 1231 (internal quotes omitted). In contrast, “[a]ny restrictions made on expressive activity in a limited public forum only must be reasonable and viewpoint neutral.” Id.⁴

1. Traditional public forum.

In support of its motion for preliminary injunction, the plaintiff argued that the Perimeter constitutes a traditional public forum, that is, one of the “public areas such as streets and parks that, since time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Bloedorn , 631 F.3d at 1231 (internal quotes omitted). For a number of reasons—including the Bloedorn Court's pronouncement that “a state-funded university is not a traditional public forum,” Id. at 1232 —the Court concluded that the plaintiff had not shown a substantial likelihood of...