# White v. Simpson

> District Court, W.D. Arkansas · October 10, 2018

URL: https://www.frixlaw.com/law-library/cases/10009482

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** October 10, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10009482

## How later opinions describe it (automated extraction)

- explaining there is no First Amendment violation when a conduct regulation is violated by means of speech

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

CHRIS WHITE PLAINTIFF

v. No. 2:17-CV-02207

JON MARK SIMPSON, individually
and in his official capacity as Mayor, et al. DEFENDANTS

OPINION AND ORDER

Before the Court is Defendants’ motion (Doc. 26) for summary judgment. Defendants
filed a brief (Doc. 27) and statement of facts (Doc. 28) in support. Plaintiff Chris White (“White”)
filed a response (Doc. 31) and brief (Doc. 32) in opposition. Contrary to Local Rule 56.1(b), White
did not file a separate response to Defendants’ statement of facts. Defendants filed a reply.
(Doc. 33). The parties filed a joint motion (Doc. 42) to continue the trial. White alleges
Defendants have violated his federal and state constitutional rights in a manner actionable under
Title III of the Civil Rights Act of 1964, 42 U.S.C. § 1983, and the Arkansas Civil Rights Act of
1993. For the reasons set forth below, Defendants’ motion for summary judgment will be granted.
I. Background
The Marvin Vinson Multi-Purpose Building is a recreational building open to the City of
Clarksville community. It is owned by the City of Clarksville and operated by the city council and
the Parks and Recreation Advisory Board. Community members may swim at the Marvin Vinson
Building’s Aquatic Center. The Aquatic Center relies on various safety measures to ensure patron
safety and satisfaction, such as employing lifeguards to monitor those using the pool. Additionally,
the Aquatic Center has a list of sixteen rules and regulations that must be followed. (Doc. 28-6).
Rule number ten provides “[n]o obscene language, crude or inappropriate behavior will be
tolerated.” (Doc. 28-6).
Whitney Barnes works as a lifeguard at the Aquatic Center. White and Ms. Barnes
presumably met at the Aquatic Center while White would swim, and the two would talk often.
Each would initiate conversation with the other. (Doc. 32-1, p. 2). Ms. Barnes regularly spoke
with White and did not always tell him that he was bothering her. (Doc. 28-7, p. 5). Although
some of their conversations made her feel uncomfortable, Ms. Barnes “didn’t feel it was

necessarily inappropriate at the time.” (Doc. 32-1, p. 5). Ms. Barnes testified that she and White
would openly discuss her religious beliefs. (Doc. 32-1, p. 8). Ms. Barnes never told anybody prior
to December 2016 that she and White were having religious-based conversations.
White and Barnes spoke nearly every day that White was at the Aquatic Center, which
eventually became most days Ms. Barnes worked. During the fall of 2016, Ms. Barnes’s work
schedule was rearranged so that she worked in the morning rather than in the afternoon.
(Doc. 28-7, p. 3). White, who previously swam at the Aquatic Center in the afternoon, altered his
schedule to swim in the mornings. (Doc. 28-7, p. 3; Doc. 28-2, p. 3; Doc. 28-5, p. 4). Both
continued to communicate with each other regularly. Their conversations eventually became

lengthy enough to distract Ms. Barnes from her duties as a lifeguard. (Doc. 28-2, p. 2). During
one conversation, Mary Townsend, the Director of the Aquatic Center, observed Ms. Barnes
speaking to White with her back to the pool for five minutes. (Doc. 28-8, p. 2).
Ms. Townsend met with both White and Ms. Barnes to discuss the distractions caused by
their conversations. Ms. Townsend documented in her journal that she discussed the issue with
Ms. Barnes on December 2, 2016. (Doc. 28-8, p.1). White “was never notified that his failure to
‘stop distracting the life guards’ could result in a complete ban from the Marvin Vinson Multi-
Purpose Building . . . .” (Doc. 32, p. 18). However, White testified that Ms. Townsend indeed
spoke to him about distracting the lifeguards, stating, “Mary told me later that when I talked to the
lifeguards that I need to make sure and not stand in front of them and make sure I don’t block their
vision of the pool.” (Doc. 28-5, p. 7). Ms. Townsend agrees, and claims that she told White to
“stop distracting the lifeguards.” (Doc. 32-3, pp. 2-3). Despite these warnings, however, Ms.
Townsend observed White on surveillance video engaging in the same distracting behavior while
she was not at the Aquatic Center. Concerned for the safety of those using the pool, she decided

action was necessary. She contacted Tom Cogan, the Parks and Recreation Director for the City
of Clarksville, at the beginning of December 2016 and the two decided to seek the assistance of
the Mayor, Jon Simpson, in handling the problem. (Doc. 32-3, pp. 2-3).
In December 2016, Mayor Simpson, Mr. Cogan, and Chief Weathers met with Ms. Barnes.
(Doc. 32-4, p. 3). During their discussion, Ms. Barnes disclosed that, in addition to distracting her
while she was on duty, White regularly engaged in inappropriate behavior. (Doc. 32-4, p. 3). This
was the first time she discussed White’s behavior with anybody. (Doc. 28-1, p. 3). She identified
two other females, Christal Brooke and Emilie Rohr, with similar stories. Ms. Barnes stated that
White sexually harassed her, Ms. Brooke, and Ms. Rohr on different occasions. Mayor Simpson,

Mr. Cogan, and Chief Weathers decided it was necessary to ban White from the Marvin Vinson
Building, but chose to wait for Ms. Townsend to provide a statement before memorializing the
decision. (Doc. 28-1, p. 3).
On December 16, 2016, prior to Defendants banning him from the premises, White
delivered a boxed Christmas gift to Ms. Barnes at the Marvin Vinson Building. Ms. Barnes
immediately notified Ms. Townsend but did not open the box. Ms. Townsend then notified Mr.
Cogan. (Doc. 28-2, p. 4). White testified that the gift contained “Skittles and one of those vacuum
insulated cups” with a card that read, “Merry Christmas, Whitney, Jesus loves you. Chris.”
(Doc. 28-5, p. 13). No Defendant opened the box. Mr. Cogan, Mayor Simpson, and Chief
Weathers decided it was necessary to immediately ban Mr. White from the Marvin Vinson
Building. (Doc. 28, ¶ 76). That same day, Officer Jeff Ross provided White with written notice
that he was banned from the Marvin Vinson Building for violating policy and procedures.
(Doc. 32-13; Doc. 28-1). Specifically, Defendants identify pool rule number ten as the basis for
the ban. (Doc. 28-15, p. 2).

On February 16, 2017, written statements were obtained from Ms. Brooke and Ms. Rohr
corroborating the information provided by Ms. Barnes. (Doc. 32-10; Doc. 32-11). Ms. Brooke
detailed the various times White engaged in inappropriate behavior, including statements that he
“lusts” after her and other female lifeguards. (Doc. 32-10). Ms. Rohr identified a conversation in
which White described a wrestling move that “was a good way to control a woman from behind.”
(Doc. 32-11).
In August of 2017, the City of Clarksville’s Parks and Recreation Board held a hearing to
discuss White’s ban from the Marvin Vinson Building. (Doc. 28, p. 16). White chose not to testify
at the hearing, but Kevin Holmes, White’s attorney, addressed the Board on White’s behalf.

(Doc. 28-14). The Board ultimately upheld White’s ban.
On November 6, 2017, White filed the instant action against Mayor Simpson, The City of
Clarksville, Jeff Ross, Tom Cogan, and Mary Townsend alleging the defendants violated his
constitutional rights including his right to freedom of religion, speech, association, and due
process. On August 16, 2018, Defendants moved for summary judgment on all counts. In their
motion for summary judgment, Defendants argue that the City of Clarksville and its
representatives were justified in banning White from the Marvin Vinson Building because White
created a safety risk by repeatedly distracting on-duty lifeguards. Defendants argue that the
decision was further justified because White repeatedly sexually harassed female employees of the
Marvin Vinson Building. Finally, Defendants contend that White received constitutionally
sufficient process throughout the procedure leading to the City’s decision to ban him.
II. Legal Standard
When a party moves for summary judgment, it must establish both the absence of a genuine
dispute of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ.

P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Nat’l Bank
of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602, 606-07 (8th Cir. 1999). In
order for there to be a genuine issue of material fact, the nonmoving party must produce evidence
“such that a reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway
Trucking, Inc., 28 F.3d 64, 66–67 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). Only facts “that might affect the outcome of the suit under the governing
law” need be considered. Anderson, 477 U.S. at 248. Indeed, “a fact is material if its resolution
affects the outcome of the case.” Rakes v. Life Inv’rs Ins. Co. of Am., 582 F.3d 886, 893 (8th Cir.
2009). “[T]he non-movant must make a sufficient showing on every essential element of its claim

on which it bears the burden of proof.” P.H. v. Sch. Dist. of Kan. City, Mo., 265 F.3d 653, 658
(8th Cir. 2001) (quotation omitted). Facts asserted by the nonmoving party “must be properly
supported by the record,” in which case those “facts and the inferences to be drawn from them [are
viewed] in the light most favorable to the nonmoving party.” Id. at 657.
III. Analysis
White alleges that Defendants violated his constitutional rights to freedom of religion,
speech, association, and due process. White identifies various inconsistencies and contradictory
statements and argues that this gives rise to a genuine dispute of material fact. He argues there are
discrepancies regarding the date of the decision to implement the ban, the dates Ms. Townsend
was out of town, and the number of times Ms. Barnes made reports to University of the Ozark’s
security. Even if these inconsistencies were supported by citation to the record, any dispute is not
material. For summary judgment purposes, a dispute must be about a fact that “affects the outcome
of the case.” See Rakes, 582 F.3d 893. White fails to demonstrate these inconsistencies relate to
a fact that affect the outcome of the case.

A. Free Exercise and Freedom of Speech Claims
White argues that Defendants deprived him of his constitutionally protected rights to
freedom of religion1 and freedom of speech. To succeed on a free exercise claim, White must
show that Defendants engaged in some type of discriminatory practice targeting his religious
beliefs. See Church of the Lukumi Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520, 532 (1993)
(“At a minimum, the protections of the Free Exercise Clause pertain if the law at issue
discriminates against some or all religious beliefs or regulates or prohibits conduct because it is
undertaken for religious reasons.”). To succeed on his free speech claim, White must show that
Defendants banned him on account of the content or viewpoint contained in his speech, and not

because of his conduct. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992) (“The First
Amendment generally prevents government from proscribing speech . . . because of disapproval
of the ideas expressed.”); id. at 389-90 (explaining there is no First Amendment violation when a
conduct regulation is violated by means of speech).
White argues that he was banned from the Marvin Vinson Building because of his religion.
White testified that he believes Defendants banned him because they hated Jesus. (Doc. 28-5,
pp. 10, 12). He argues that by depriving him of his right to discuss his religious views at the

1 As Defendants point out, it is difficult to identify the underlying basis for White’s freedom
of religion claim. (Doc. 27, p. 3). In his brief, White appears to rely on the Free Exercise Clause.
(Doc. 32, p. 19 (“Not all burdens upon religion violate the free exercise clause.”)).
Marvin Vinson Building, Defendant impermissibly infringes on his freedom of speech. Both
claims depend on White providing facts from which a reasonable juror could infer that White was
banned because of his religion or the content or viewpoint of his speech, rather than because of his
conduct. Considering the undisputed facts in a light most favorable to White, he fails to meet his
burden of production.

With respect to his free exercise claim, White provides no evidence that any Defendant
knew of his religious discussions with Ms. Barnes. White provides no evidence that any party
knew of the “Jesus loves you” message within the gift to Ms. Barnes. Rather, when asked what
evidence he could offer that Defendants’ decision was motivated by White’s exercise of his
religious beliefs, White replied:
We’re told in the Bible the standards to judge that by, and we’re going through that
process now. The Standard we’re told by Jesus himself is the word he uses is
blameless, make sure you are blameless, so when they come after you, they know
it will be because of Me.
And that one of the reasons this is important, because I am blameless, and these
little uncorroborated statements are their attempt to make me to be blamed. I know
those things aren’t true, so I know I’m blameless in this situation, and therefore
Jesus only allows for one other thing that can be now that I’m blameless is that
they’re coming after me because they’re coming after Him. And that’s consistent
throughout the whole New Testament.

(Doc. 28-5, p. 12). This evidence, according to White, is “all I need.” (Doc. 28-5, p. 12).
With respect to his freedom of speech claim, the evidence shows that White was banned
because he was distracting on-duty lifeguards, and because he was sexually harassing them. Mary
Townsend testified that she told White that he needed to stop distracting the lifeguards.
(Doc. 28-2, p. 2, ¶ 5). White testified that Ms. Townsend did speak to him about distracting the
lifeguards: “Mary told me later that when I talked to the lifeguards that I need to make sure and
not stand in front of them and make sure I don’t block their vision of the pool.” (Doc. 28-5, p. 7).
Thereafter, White continued to engage lifeguards in conversation and direct their attention away
from swimmers in the pool. Ms. Townsend then decided further action was necessary. Mayor
Simpson, Chief Weathers, and Mr. Cogan met with Whitney Barnes to discuss the problems with
White. During this meeting, they discovered that White had made sexually explicit comments to
Ms. Barnes and other female employees. Defendants then decided to ban White from the Marvin
Vinson Building. That White used speech (rather than, for example, physical contact) as the means

by which he distracted on-duty lifeguards and sexually harassed them does not give rise to a free
speech claim.
White’s evidence is insufficient to overcome summary judgment on any free exercise or
free speech claim, and Defendants’ motion for summary judgment will be granted regarding these
claims.
B. Freedom of Association
White argues that his ban from the Marvin Vinson Building infringes on his freedom of
association. When assessing a freedom of association claim the Court must determine (1) whether
White has identified an associational right that has been significantly burdened by Defendants; and

(2) if White’s association right has been significantly burdened, whether Defendants’ action was
justified by a compelling interest. Royer ex rel. Estate of Royer v. City of Oak Grove, 374 F.3d 685,
687-88 (8th Cir. 2004) (citing Boy Scouts of Am. v. Dale, 530 U.S. 640, 656 (2000)). There are
two broad classifications of associational rights: (1) “the right to enter into and maintain certain
intimate human relationships;” and (2) “the right to associate for the purpose of engaging in those
activities protected by the First Amendment . . . .” Id. at 688 (internal quotations omitted) (citing
Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984).
The Court assumes without deciding that White has a protected associational right in the
activities that can occur at the Marvin Vinson Building. Accord Royer, 374 F.3d at 688 (assuming
without deciding that a plaintiff had a protected associational right to meet at a community center).
The Court must next determine whether White’s ban from that building is a significant burden on
his associational rights—and if so, whether there is a compelling interest that justifies the ban. Id.
at 687 (citing Dale, 530 U.S. at 648).
White claims that Defendants stripped him of “the most fundamental right in our

democracy—the right to vote.” (Doc. 32, p. 18). He further alleges that Defendants deprived him
of his ability to obtain to a flu shot. White remains free to vote at the Johnson County Courthouse
(Doc. 28-3, pp. 1-2), and he can receive a flu shot free of charge at many Johnson County Health
Department locations, including the one at 6 Professional Drive in Clarksville. (Doc. 28-4, p. 1).
White is free to engage in other activities protected by the First Amendment at any appropriate
place other than the premises of the Marvin Vinson Building. Any burden on White’s right to
associate created by denying him access to the Marvin Vinson Building is not significant.
Even if the burden were significant, Defendants banned White because he distracted on-
duty lifeguards and sexually harassed three female employees. Defendants have a compelling

interest in protecting the safety of community members. Defendants must also protect City
employees and take seriously their sexual harassment complaints. Royer, 374 F.3d at 688, n.5.
White’s complete ban from the Marvin Vinson Building is narrowly tailored to serve this interest.
While the complete ban from the Marvin Vinson Building is more expansive than the ban in Royer,
which was only in effect during the employee-victim’s working hours, White previously changed
his own hours of Aquatic Center use to ensure he could continue to engage Ms. Barnes, and his
sexual harassment was not limited solely to her. Defendants’ motion for summary judgment on
the freedom of association claim will be granted.
C. Due Process
Finally, White contends that Defendants violated his procedural due process rights because
he “was never notified that his failure to ‘stop distracting the life guards’ could result in a complete
ban from the Marvin Vinson Multi-Purpose Building . . . .” (Doc. 32, p. 18). “The requirements
of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth

Amendment’s protection of liberty and property.” Bd. of Regents of State Colls. v. Roth, 408 U.S.
564, 570 (1972). White has no property interest in unlimited access to a public building. Royer,
374 F.3d at 689. Furthermore, the liberty interests he identifies do not appear to be those
fundamental liberty interests for which the protections of due process are required. Id.
White seems to rest his due process argument on his inability to vote at the Center.
Although voting is a right fundamental to our democratic society, not every rule or law that
implicates an individual’s voting right is per se unconstitutional. See Burdick v. Takushi, 504 U.S.
428, 432-33 (1992) (“It does not follow, however, that the right to vote in any manner and the right
to associate for political purposes through the ballot are absolute.”). While it is undisputed that

White can no longer vote at the location of his choice, White may continue to cast his ballot at the
Johnson County Courthouse. (Doc. 28-3). He has not been stripped of his fundamental right to
vote. Similarly, to the extent any of the other activities White identifies implicate a fundamental
liberty interest, he remains free to conduct those activities elsewhere. The protections of due
process do not apply to the ban.
However, even assuming White was entitled to due process, he received all the process
required by the Fourteenth Amendment. The Due Process Clause requires notice and a meaningful
opportunity to be heard. Mullane v. Cent. Hanover Bank & Tr. Co., 399 U.S. 306, 313-14 (1950).
White acknowledges that Ms. Townsend told him to stop distracting the lifeguards.
(Doc. 28-2, p. 2, ¶ 5). White received a letter notifying him that he was banned due to a violation
of the Center’s policies and procedures. (Doc. 32-13). Most importantly, the City’s Parks and
Recreation Board—a body that could have lifted the ban—held a hearing to allow White to present
his case. White, on the advice of his counsel, Kevin Holmes, chose not to speak at the hearing,
but Mr. Holmes spoke on White’s behalf. White was afforded an opportunity to respond to the

allegations resulting in his ban. Through Holmes, White argued he was merely expressing his
religious beliefs. (Doc. 28-14). Assuming White was entitled to due process, he received the
process he was due. Defendants’ motion for summary judgment regarding White’s due process
claim will be granted.
D. State Law Claims
Because the Court is dismissing the claims over which it has original jurisdiction, the
claims over which the Court has supplemental jurisdiction will be dismissed without prejudice.
28 U.S.C. § 1367(c)(3); Keating v. Neb. Pub. Power Dist., 660 F.3d 1014, 1018-19 (8th Cir. 2011).
V. Conclusion

IT IS THEREFORE ORDERED that Defendants’ motion for summary judgment (Doc. 26)
is GRANTED and Plaintiff’s federal claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s state law claims are DISMISSED WITHOUT
PREJUDICE.
IT IS FURTHER ORDERED that the pending joint motion to continue the trial (Doc. 42)
is DENIED as MOOT. Judgment will be entered accordingly.
IT IS SO ORDERED this 10th day of October, 2018.

/s/P. K. Holmes,
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10009482. Public record. Not legal advice.