Hershey v. Turner

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

RICHARD HERSHEY, )

)

Plaintiff, )

)

v. ) Case No. CIV-19-344-SPS

)

STEVE TURNER, JERRID FREEMAN, )

BEN HARDCASTLE, DEBORAH )

LANDRY, CHRISTINE LANDSAW, )

KIRSTI WILMON f/k/a KIRSTI COOK, )

JAMES MYNATT, JIM ROBERTSON, )

and AMANDA CRAIG, )

)

Defendants. )

OPINION AND ORDER

This case arises out of a series of encounters Plaintiff Richard Hershey had at

Northeastern State University (“NSU”) in Tahlequah, Oklahoma. The Plaintiff has sued

the President of NSU, Dr. Steve Turner, in his official capacity as President of the

University, along with Dr. Jerrid Freeman, Ben Hardcastle, Dr. Deborah Landry, and

Christine Landsaw in their official capacities as members of the Cabinet of the President

at NSU. Additionally, the Plaintiff has sued Kirsti Wilmon, Assistant Director for

Conferences and Marketing of NSU, in her individual capacity, along with Sergeant James

Mynatt, Jim Robertson, and Amanda Craig, all police officers at NSU, in their individual

capacities. The Defendants now all seek dismissal of the Plaintiff’s Complaint. For the

reasons set forth below, the Court finds that the Defendants’ Motion to Dismiss Plaintiff’s

First Amended Complaint and Brief in Support [Docket No. 27] should be GRANTED IN

PART and DENIED IN PART.

I. Background

The Plaintiff states in his First Amended Complaint that he is a vegetarian whose

ethical beliefs compel him to share his message with others, and that he is compensated by

nonprofit organizations, including Vegan Outreach, for sharing his views and distributing

free literature. The Plaintiff alleges that he had distributed free literature on the NSU

campus since at least November 2013, but that since March 8, 2017, he has been prevented

from doing so by police officers on the NSU campus. Moreover, he alleges that he has

been denied the ability to rent table space in the University Center Lobby on multiple

occasions.

The Plaintiff attached to his First Amended Complaint a copy of the NSU policy

entitled “Freedom of Speech (Expressive Activity),” as well as a copy of his citation from

Officer Robertson dated October 16, 2017. See Docket No. 25, Ex. 1-2. “A written

document that is attached to the complaint as an exhibit is considered part of the complaint

and may be considered in a Rule 12(b)(6) dismissal.” Hall v. Bellmon, 935 F.2d 1106,

1112 (10th Cir. 1991). See also Fed. R. Civ. P. 10(c) (“A copy of a written instrument that

is an exhibit to a pleading is a part of the pleading for all purposes.”). Accordingly, the

Court has no trouble considering the language of the policy and the Plaintiff’s reference to

it as part of the present motion to dismiss when necessary.

II. Procedural History

Plaintiff filed his original Complaint in this case on October 11, 2019, against the

above-named Defendants.1 See Docket Nos. 1-2. All Defendants moved to dismiss the

original Complaint, and the Plaintiff filed his First Amended Complaint on January 31,

2020. See Docket Nos. 24-25. The Defendants again moved to dismiss on February 14,

2020. See Docket No. 27. The Court has stricken all attendant deadlines in this case

pending resolution of the Motion to Dismiss. See Docket No. 23. In his First Amended

Complaint, the Plaintiff’s claims, all pursuant to 42 U.S.C. § 1983, are set forth as follows:

(i) Count I, alleging violations of the First and Fourteenth Amendments as to Defendants

Turner, Freeman, Hardcastle, Landry, and Landsaw in their official capacities and

requesting a declaratory judgment and injunctive relief; (ii) Count II, alleging violations

of the First and Fourteenth Amendments against Defendant Wilmon in her individual

capacity and requesting damages; and (iii) Count III, alleging violations of the First and

Fourteenth Amendments as to Defendants Mynatt, Robertson, and Craig in their individual

capacities and requesting damages.

A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

required, but the statement of the claim under Rule 8(a)(2) must be “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), citing

Papasan v. Allain, 478 U.S. 265, 286 (1986). “To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to state a claim to relief that is

1 Plaintiff originally also named Jackie Adair-Smith, but he has since voluntarily dismissed all

claims against her. See Docket Nos. 26, 31.

plausible on its face. 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.” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555,

556, 557, 570.

III. Analysis

The Defendants have moved to dismiss Plaintiff’s First Amended Complaint under

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Defendants first collectively

assert that claims predicated on injuries occurring prior to October 11, 2017 fall outside

the two-year statute of limitations and are time barred. As to Count I, Defendants Turner,

Freeman, Hardcastle, Landry, and Landsaw contend that the Plaintiff has failed to state a

viable claim by only collectively grouping his allegations against them without specific

facts to delineate allegations as to each individual. Additionally, Defendants contend that

the Plaintiff’s assertion that the “Freedom of Speech (Expressive Activity)” policy is

facially unconstitutional is a legal conclusion based only on formulaic recitations of a First

Amendment claim and therefore is insufficient. As to Count II, Defendant Wilmon asserts

that Plaintiff has alleged insufficient facts to state a viable claim against her. As to Count

III, Defendants Mynatt, Robertson, and Craig argue that the facts alleged do not support a

claim against them and further contend that they are entitled to qualified immunity.

Count I: Official Capacity Claim

The Court first notes that “a state official in his or her official capacity, when sued

for injunctive relief, [is] a person under § 1983 because ‘official-capacity actions for

prospective relief are not treated as actions against the State.’” Will v. Michigan Dept. of

State Police, 491 U.S. 58, 71 n.10 (1989), quoting Kentucky v. Graham, 473 U.S. 159, 167

n. 14 (1985). Here, Defendants Turner, Freeman, Hardcastle, Landry, and Landsaw assert,

however, that the Plaintiff’s First Amended Complaint is not sufficiently specific as to each

of them because Count I refers to “the President’s Cabinet” rather than each of them

individually, and therefore fails to state a claim by only referring to them in a collective

grouping. See Robbins v. Oklahoma, 519 F.3d 1242, 1249-1250 (10th Cir. 2008) (“In

§ 1983 cases, defendants often include the government agency and a number of

government actors sued in their individual capacities. Therefore it is particularly important

in such circumstances that the complaint make clear exactly who is alleged to have done

what to whom, to provide each individual with fair notice as to the basis of the claims

against him or her, as distinguished from collective allegations against the state.”)

(emphasis in original), citing Twombly, 550 U.S. at 564-565 & n.10.

But here, the Plaintiff alleged in the First Amended Complaint that these named

Defendants comprised the “President’s Cabinet” and that they make up the same official

policy-making body, approved the relevant “Freedom of Speech (Expressive Activity”

policy, and all engaged in the same conduct as acting policy makers at the time relevant in

this case. The Court agrees with the Plaintiff that the First Amended Complaint is sufficient

in this case. Count I of the First Amended Complaint is easily understood as alleging that

all of the named Defendants alleged to be part of the “President’s Cabinet” were policy

makers who approved the policy at issue in this case and were behind his allegations in

Count I. See, e. g., Birdsong v. Unified Government of Kansas City, Kan., 2014 WL

2216904, at *4 (D. Kan. May 29, 2014) (“Plaintiff’s use of the collective ‘defendants’ in

paragraphs 281-284 can reasonably be understood to mean that Birdsong is alleging that

all four Defendants engaged in the alleged activities.”) (emphasis in original). Cf. Bark v.

Chacon, 2011 WL 1884691, at *5 (D. Colo. May 18, 2011) (“[T]he allegations pertaining

to the individual Defendants all relate to a single incident, and all of the individual

Defendants are alleged to have been present at that incident and to have acted in concert.

Unlike Robbins, this is not a case where the allegations against the individual Defendants

are entirely different in character and therefore mistakenly grouped in a single allegation.”)

(internal quotation omitted). “The key inquiry in evaluating the viability of a complaint

under Rule 8(a)(2) is whether each defendant knows why he or she was named in the

complaint.” Ferguson v. Board of County Commissioners of Sierra County, 2013 WL

12334214, at *5 (D. N.M. April 2, 2013). That standard has been met here.

Plaintiff’s First Amended Complaint appears to make two challenges to the NSU

policy in Count I: (i) a facial challenge to the policy with regard to the requirement of

advance reservation for activities near sidewalks and road intersections, as well as (ii) an

as-applied challenge to specific instances of enforcement of the policy against him. Here,

the official-capacity Defendants have not moved to dismiss the Plaintiff’s as-applied

challenge in Count I, but they do assert that the Plaintiff has failed to state a claim because

his allegation that the policy is facially unconstitutional is based on formulaic recitations

of the elements of a claim and therefore is insufficient. Defendants have provided nothing

in support of this assertion and Plaintiff did not address this argument at all. This does not,

however, result in automatic dismissal of Plaintiff’s claim. See Issa v. CompUSA, 354 F.3d

1174, 1178 (10th Cir. 2003) (“[E]ven if a plaintiff does not file a response to a motion to

dismiss for failure to state a claim, the district court must still examine the allegations in

the plaintiff’s complaint and determine whether the Plaintiff has stated a claim upon which

relief can be granted.”).

A facial challenge “involves an examination of whether the terms of the [policy]

itself measured against the relevant constitutional doctrine, and independent of the

constitutionality of particular applications, contain[] a constitutional infirmity that

invalidates the [policy] in its entirety.” Doe v. City of Albuquerque, 667 F.3d 1111, 1127

(10th Cir. 2012) (quotation omitted). “A facial challenge to a [policy] is, of course, the

most difficult challenge to mount successfully[.]” United States v. Salerno, 481 U.S. 739,

745 (1987). Here, the Plaintiff alleges in the Complaint that the “Freedom of Speech

(Expressive Activity)” policy is facially unconstitutional because it “requires advance

reservation for activities near sidewalk and road intersections which could lead to arbitrary

enforcement, or content or viewpoint discrimination, which constitutes an unconstitutional

prior restraint on expressive activity.”2 Docket No. 25, p. 12, ¶ 85.

The language of the policy, attached to the First Amended Complaint, defines a

traditional public forum as “the University’s public streets, sidewalks, parks, and similar

common areas” and states that they are available “for expressive activity, planned or

spontaneous, for the individual or small groups [] at any time without the need for

reservation, or prior approval.” See Docket No. 25, Ex. 1, p. 1. However, the policy states

2 The Court notes that the Plaintiff’s facial challenge to the constitutionality of the policy only

addresses the constitutionality of the policy to areas such as sidewalks and road intersections, i. e.,

traditional public forums, and not the policy in relation to designated public forums such as the

University Center lobby.

that “[a]dvance reservation [of at least five business days] is [] required for activities near

sidewalk and road intersections, and/or in close proximity to academic buildings, anytime

classes, and/or study activities, and/or research are taking place.” Id., p. 3 (emphasis

added). Furthermore, the policy provides that “in no circumstances will any decision be

based on the content or viewpoint of the expressive activity or upon the expressed reaction

of others.” Id.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. 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.” Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 555, 556, 557, 570). The Supreme Court has

articulated a three-part test for evaluating a First Amendment claim: (i) whether the speech

is protected, (ii) the nature of the forum where the speech is to occur and the proper

standards for restrictions in that forum, and (iii) whether the government justification

satisfies the applicable standard. See Cornelius v. NAACP Legal Defense and Educational

Fund, Inc., 473 U.S. 788, 797 (1985).

The Plaintiff, in his First Amended Complaint, described the speech he engaged in

and asserted that such speech is protected and that the forum is a traditional public forum.

He further alleged that the policy is facially unconstitutional because it requires advance

reservations in a traditional public forum, which is an unconstitutional prior restraint on

expressive activity. The Defendants (in a one-sentence argument) assert without reference

to the First Amended Complaint that this allegation is based on a formulaic recitation of

the element of a First Amendment claim. But here, the Court finds that a plausible reading

of the Plaintiff’s First Amended Complaint sufficiently provides the Defendants “‘fair

notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus,

551 U.S. 89, 93 (2007), quoting Twombly, 550 U.S. at 555. The Plaintiff alleged that he

was challenging a policy that limited protected speech in a traditional public forum, and

that the language of the policy itself has no limitations on this requirement, nor does it

leave open any (much less ample) channels of communication. See Perry Education

Association v. Perry Local Educators’ Association, 460 U.S. 37, 45 (1983) (A government

may restrict free speech in a content-neutral manner only upon a showing that the

regulation is narrowly tailored to serve a significant government interest, leaving open

ample alternative channels of communication.). As the Plaintiff has therefore “nudged

[his] claims across the line from conceivable to plausible,” Iqbal, 556 U.S. at 680, the

Defendant’s Motion to Dismiss is hereby denied as to Count I.

Counts II & III: Individual Capacity Claims

As an initial matter, the Court notes that the Plaintiff’s allegations as to Defendants

Wilmon, Mynatt, and Craig encompass time periods both within and outside the statute of

limitations in this case. “The statute of limitations is drawn from the personal-injury statute

of the state in which the federal district court sits.” Mondragon v. Thompson, 519 F.3d

1078, 1082 (10th Cir. 2008), citing Wilson v. Garcia, 471 U.S. 261, 269 (1985). The

limitations period for personal injury actions under Oklahoma law is two years, see Okla.

Stat. tit. 12, § 95(A)(3), making Plaintiff’s § 1983 claims subject to the same two-year

statute of limitations. “Federal law, however, determines the date on which the claim

accrues and the limitations period starts to run.” Mondragon, 519 F.3d at 1082, citing

Wallace v. Kato, 549 U.S. 384, 388 (2007). “Claims under 42 U.S.C. § 1983 assert a

violation of a federal right. Such claims accrue when a plaintiff knows or should know his

rights have been violated. A plaintiff ‘need not have conclusive evidence of the cause of

an injury in order to trigger the statute of limitations.’” Perry v. Geo Group, Inc., 2009

WL 3698473, at *7 (W.D. Okla. Nov. 4, 2009), quoting Alexander v. Oklahoma, 382 F.3d

1206, 1216 (10th Cir. 2004). A civil rights action accrues “when facts that would support

a cause of action are or should be apparent.” Fratus v. DeLand, 49 F.3d 673, 675 (10th

Cir. 1995) (quotation omitted).

In this case, claims under Section 1983 accruing before October 11, 2017 would

generally be barred by the applicable two-year limitations period because Plaintiff filed his

original Complaint on October 11, 2019. See Docket Nos. 1-2. Defendants Wilmon,

Mynatt, and Craig therefore contend that any allegations related to a March 2017 encounter

are time barred and the Court lacks subject matter jurisdiction over them pursuant to Rule

12(b)(1).3 The Plaintiff concedes that the March 2017 encounter falls outside the relevant

statute of limitations but asserts that the March 2017 encounter is nevertheless actionable

because the “continuing violation doctrine” applies here and that other encounters do fall

within the statutory time frame. Although the Tenth Circuit has not definitively ruled on

3 Motions to dismiss for lack of subject matter jurisdiction generally take two forms: facial or

factual. See Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002) (“Rule 12(b)(1) motions

generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations

as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter

jurisdiction is based.). Here, Defendants have raised a facial attack to the allegations in the

Plaintiff’s First Amended Complaint.

whether the continuing violation doctrine applies to § 1983 claims, the Court acts as the

Tenth Circuit has and assumes without deciding that it does apply and therefore takes into

account the Plaintiff’s allegations as to March 2017. See, e. g., Vasquez v. Davis, 882 F.3d

1270, 1277 (10th Cir. 2018) (“The continuing violation doctrine was developed in the Title

VII employment law context, and this court has not yet decided whether it should apply to

§ 1983 claims.”); Colby v. Herrick, 849 F.3d 1273, 1280 (10th Cir. 2017) (“For the sake

of argument, we can assume that the continuing violation doctrine applies in § 1983 cases.

This doctrine is triggered by continuing unlawful acts but not by continued damages from

the initial violation.”); Perry v. Geo Group, Inc., 2009 WL 3698473, at *8 (“To apply the

continuing violation doctrine, there must be at least one wrongful act within the statutory

filing period”).

The Defendants next contend that the Plaintiff has failed to state a claim against

them, and that they are each entitled to qualified immunity. “The doctrine of qualified

immunity protects government officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009),

quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity is ‘an

immunity from suit rather than a mere defense to liability.’” Lewis v. Tripp, 604 F.3d 1221,

1225 (10th Cir. 2010), quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Once a

defendant has asserted a qualified immunity defense, “the plaintiff must meet a strict two-

part test” to establish “‘(1) that the defendant violated a constitutional or statutory right,

and (2) that this right was clearly established at the time of the defendant’s conduct[.]’”

McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010), quoting Bowling v. Rector, 584 F.3d

956, 964 (10th Cir. 2009). See also Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir.

2011) (same). “When qualified immunity is asserted in the context of a motion to dismiss,

the factual allegations of the complaint are assumed to be true, and the court’s analysis

generally aligns with the analysis applied with determining the sufficiency of a claim.”

Harper v Woodward County Bd. Of County Commissioners, 2014 WL 7399367, at *8

(W.D. Okla. Dec. 29, 2014), citing Brown, 662 F.3d at 1162-1164 and Iqbal, 556 U.S. at

666, 673-675, 677-684. In light of the Supreme Court’s Pearson decision, this Court has

“discretion in deciding which of the two prongs of the qualified immunity analysis should

be addressed first in light of the circumstances in the particular case at hand.” Pearson,

555 U.S. at 236.

Here, the Court first addresses whether the individual Defendants violated a

Constitutional or statutory right. “For present purposes we may and do assume that

freedom of speech and of the press—which are protected by the First Amendment from

abridgment by Congress—are among the fundamental personal rights and ‘liberties'

protected by the due process clause of the Fourteenth Amendment from impairment by the

States.” Gitlow v. People of State of New York, 268 U.S. 652, 666 (1925). Under the facts

of this case, the Plaintiff is alleging that his right to freedom of speech has been infringed

upon by the Defendants, and it is this Amendment that directs how the Court analyzes these

claims. See Albright v. Oliver, 510 U.S. 266, 273 (1994) (“Where a particular Amendment

‘provides an explicit textual source of constitutional protection’ against a particular sort of

government behavior, ‘that Amendment, not the more generalized notion of ‘substantive

due process,’ must be the guide for analyzing these claims.’”), quoting Graham, 490 U.S.

at 395.

The First Amendment provides that “Congress shall make no law . . . abridging the

freedom of speech[.]” U.S. CONST. Amend. I. However, this has never been an absolute

right, as “[e]ven protected speech is not equally permissible in all places and at all times.”

Snyder v. Phelps, 562 U.S. 443, 456 (2011) (quotation omitted). “Courts employ a three-

step process to analyze free speech claims: (1) determine whether the plaintiff's conduct is

protected speech; (2) ‘identify the nature of the forum, because the extent to which the

[defendant] may limit access depends on whether the forum is public or nonpublic’; and

(3) determine ‘whether the justifications for exclusion from the relevant forum satisfy the

requisite standard.’” Cole v. Goossen, 402 F. Supp. 3d 992, 1013 (D. Kan. 2019), quoting

Cornelius, 473 U.S. at 797. In this case, the Plaintiff asserts, and the Defendants do not

challenge, that leafletting is a form of speech protected by the First Amendment. Hill v.

Colorado, 530 U.S. 703, 715 (2000) (“[L]eafletting, sign displays, and oral

communications are protected by the First Amendment.”).

As to the second step, in Doe v. City of Albuquerque, the Tenth Circuit explained

that there are four categories of forums that exist on government property: (i) traditional

public fora, (ii) designated public fora, (iii) limited public fora, and (iv) nonpublic fora.

667 F.3d at 1128, citing Perry Education Association, 460 U.S. at 45-46, and Summum v.

Callaghan, 130 F.3d 906, 914-916 (10th Cir. 1997). The first two are relevant to the

analysis in this case as the Plaintiff notes that under the University’s own policy, streets,

sidewalks, and parks on the NSU campus are traditional public fora, while the tables in

University Center are a designated public fora. The Defendants do not challenge these

designations.

Because the first two steps are unchallenged, the critical analysis comes at the third

step. As to the third step, the same standard generally applies to both fora, namely, that

the government must show that its regulation is necessary to serve a compelling state

interest and that it is narrowly drawn to achieve that purpose. See Perry Education

Association, 460 U.S. at 45-46 (“For the state to enforce a content-based exclusion [in a

traditional public forum] it must show that its regulation is necessary to serve a compelling

state interest and that it is narrowly drawn to achieve that end. The state may also enforce

regulations of the time, place, and manner of expression which are content-neutral, are

narrowly tailored to serve a significant government interest, and leave open ample

alternative channels of communication. . . . A second category consists of public property

which the state has opened for use by the public as a place for expressive activity. The

Constitution forbids a state to enforce certain exclusions from a forum generally open to

the public even if it was not required to create the forum in the first place. Although a state

is not required to indefinitely retain the open character of the facility, as long as it does so

it is bound by the same standards as apply in a traditional public forum. Reasonable time,

place and manner regulations are permissible, and a content-based prohibition must be

narrowly drawn to effectuate a compelling state interest.”) (internal citations omitted).

However, because this has been raised in the context of qualified immunity at the dismissal

stage, the burden is on the Plaintiff to establish the sufficiency of the allegations in his First

Amended Complaint (which the Court accepts as true at this stage).

“Section 1983 does not authorize liability under a theory of respondeat superior.”

Brown, 662 F.3d at 1164, citing Monell v. Dep’t of Social Services, 436 U.S. 658, 691

(1978). “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff

must plead that each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. This takes the form of

either personal liability through personal involvement, or supervisory liability based on a

violation of a policy. Brown, 662 F.3d at 1164-1165 (“Personal liability under § 1983 must

be based on . . . personal involvement, and supervisory liability must be based on his

Policy.”). The Tenth Circuit has interpreted this to mean that “§ 1983 allows a plaintiff to

impose liability upon a defendant-supervisor who creates, promulgates, implements, or in

some other way possesses responsibility for the continued operation of a policy” causing

the constitutional harm. Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010).

For purposes of supervisory liability, it becomes the Plaintiff’s burden to

demonstrate that “(1) the defendant promulgated, created, implemented or possessed

responsibility for the continued operation of a policy that (2) caused the complained of

constitutional harm, and (3) acted with the state of mind required to establish the alleged

constitutional deprivation.” Dodds, 614 F.3d at 1199-1200 (“Denying qualified immunity

on the basis of such a showing complies with Iqbal’s requirement that § 1983 liability only

be imposed upon those defendants whose own individual actions cause a constitutional

deprivation because it requires plaintiffs prove each defendant took some act with the

constitutionally applicable state of mind that caused the alleged constitutional violation.”)

(citation omitted). “To establish personal involvement for supervisory liability the

“plaintiff must plead that each Government-official defendant, through the official’s own

individual actions, has violated the Constitution.” Schneider v. City of Grand Junction

Police Dept., 717 F.3d 760, 768 (10th Cir. 2013) (emphasis added), quoting Iqbal, 556

U.S. at 676. “Therefore it is particularly important in such circumstances that the complaint

make clear exactly who is alleged to have done what to whom, to provide each individual

with fair notice as to the basis of the claims against him or her, as distinguished from

collective allegations against the state.” Robbins, 519 F.3d at 1250 (emphasis in original).

As such, the task remaining before the Court is therefore whether each defendant in their

individual capacity has violated the Plaintiff’s constitutional or statutory rights.

As to causation, the Plaintiff is required “to show that the defendant’s alleged

action(s) caused the constitutional violation” by “set[ting] in motion a series of events that

the defendant knew or reasonably should have known would cause others to deprive the

plaintiff of her constitutional rights.” Schneider, 717 F.3d at 768 (alteration in original),

quoting Dodds, 614 F.3d at 1185, 1200. As to the third element, the Tenth Circuit has

indicated that for First Amendment claims the speech must be a “substantial or motivating

factor.” Wulf v. City of Wichita, 883 F.2d 842, 856-857 (10th Cir. 1989). See also Petitt

v. Campbell, 2018 WL 5084317, at *11 (D. Kan. Oct. 18, 2018) (“Upon a finding that the

speech in question is constitutionally protected, the Plaintiff must prove that the speech

was a substantial or motivating factor in the challenged action.”).

“In sum . . . plaintiffs here must establish that each defendant – whether by direct

participation or by virtue of a policy of which he [or she] possesses supervisory

responsibility – caused a violation of plaintiffs’ clearly established constitutional rights,

and that each defendant acted with the constitutionally requisite state of mind.” Pahls v.

Thomas, 718 F.3d 1210, 1228 (10th Cir. 2013) (emphasis added). See also Brown, 662

F.3d at 1164-1165 (“Personal liability under § 1983 must be based on Secretary Williams’s

personal involvement, and supervisory liability must be based on his Policy.”). The

Plaintiff’s allegations as to each of the four individual defendants in their individual

capacity are addressed in turn below. Although it is unclear from the First Amended

Complaint that the Plaintiff has stated a claim against any of the Defendants based on

supervisory liability (as opposed to personal liability), the Court addresses both personal

liability and supervisory liability for each Defendant out of an abundance of caution.

Count II.

Kirsti Wilmon. The Plaintiff alleges that Ms. Wilmon, acting under color of law

in her position as Assistant Director for Conferences and Market at NSU, received on

March 6, 2017 and denied that same day a request to rent table space in the University

Center lobby on March 8, 2017. The Plaintiff’s request also included notice that he

intended to distribute literature outdoors on campus. On March 8, 2017, the Plaintiff went

to campus, began distributing his literature outside on a sidewalk, and was approached by

Defendant police officers Mynatt and Craig, who ultimately took him to Defendant

Wilmon’s office where she denied that he had notified her of his intent to distribute

literature and informed the officers that she had previously had to call the police on the

Defendant. The Plaintiff alleges in the First Amended Complaint that this was untrue.

While being taken to Defendant Wilmon’s office on March 8, 2017, the Plaintiff observed

vacant tables in the lobby. See Docket No. 25, pp. 6-9, ¶¶ 27-32, 40-51. On November

19, 2018, the Plaintiff again wrote to Defendant Wilmon requesting to rent table space in

the University Center lobby on November 26, 2018 and November 28, 2018, and

Defendant Wilmon again denied his request. The Plaintiff went to the campus on

November 26, 2018 and observed a vacant table in the lobby the entire time, as well as

additional space to set up tables. Docket No. 25, pp. 10-11, ¶¶ 76-78.

As to personal liability with regard to Defendant Wilmon, the Plaintiff’s allegations,

in sum, are that Defendant Wilmon: (i) denied his request for table space twice when there

were in fact tables available, and (ii) lied that she had previously called the police on him.

None of these allegations indicate that Defendant Wilmon violated the Plaintiff’s First

Amendment rights. The Plaintiff contends in his response that Defendant Wilmon’s denial

of his request to reserve tables was not content neutral because he had been permitted to

reserve tables in the past, which he contends is sufficient to assert a content-based claim as

to Defendant Wilmon. However, the Plaintiff’s First Amended Complaint makes no such

allegation, nor does he allege sufficient additional facts to provide “‘fair notice of what

the . . . claim is and the grounds upon which it rests.’” Erickson, 551 U.S. at 93, quoting

Twombly, 550 U.S. at 555. See also Perry Education Association, 460 U.S. at 45-46 (“For

the state to enforce a content-based exclusion it must show that its regulation is necessary

to serve a compelling state interest and that it is narrowly drawn to achieve that end.”);

Doe, 667 F.3d at 1131. Rather, the First Amended Complaint states that he was twice

denied the ability to rent a table, then asserts that this violation of his First Amendment

rights and pattern of excluding him from the tables caused him damages. Indeed, even in

his response to the Motion to Dismiss, Plaintiff simply recites the factual allegations as to

Defendant Wilmon, then states that he “would posit that her denial[s]” were not content

neutral. See Dodds, 614 F.3d at 1191 (“Once a defendant asserts qualified immunity, the

plaintiff bears the burden of satisfying [the] strict two-part test.”), quoting McBeth, 598

F.3d at 716, quoting Bowling, 584 F.3d at 964. This is insufficient.

As to supervisory liability, the Plaintiff has failed to allege that Defendant Wilmon

was responsible for the policy that caused his alleged constitutional harm, and further failed

to plead that she acted with any particular state of mind, much less the state of mind

sufficient to establish a constitutional deprivation. See Pahls, 718 F.3d at 1228. See also

Brown v. Glanz, 2013 WL 6909959, at *8 (N.D. Okla. Dec. 31, 2013) (slip op.) (“He has

not identified what those practices and policies are, what defendant did that constituted or

authorized discrimination, harassment or hostility, or how any such actions impacted

her.”).

Accordingly, the Plaintiff has failed to allege a claim that would overcome

Defendant Wilmon’s defense of qualified immunity, so the Plaintiff’s claims against

Defendant Wilmon must therefore be dismissed for failure to state a claim upon which

relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

Count III.

In Count III, the Plaintiff alleges a claim against Defendants Mynatt, Robertson, and

Craig pursuant to § 1983, alleging violations of his First and Fourteenth Amendment rights.

The Plaintiff’s factual allegations as to each of the remaining three defendants are

addressed in turn below.

James Mynatt. In his First Amended Complaint, the Plaintiff alleges that when he

was on the NSU campus on March 8, 2017, an NSU official contacted University police

and Defendant Mynatt responded along with Defendant Craig. Defendant Mynatt

reviewed a copy of the Plaintiff’s literature, then informed Plaintiff that he was prohibited

from distributing it and that he was on private property. Defendant Mynatt seized the

Plaintiff’s driver’s license, informed him that there was no soliciting on campus, and told

the Plaintiff he needed to obtain permission to distribute literature and could not simply

notify the University that he would be doing so. See Docket No. 25, pp. 7-8, ¶¶ 39-47.

Defendant Mynatt accompanied the Plaintiff to Defendant Wilmon’s office that day, where

Plaintiff asked Defendant Wilmon to confirm he had notified her in advance that he would

be distributing literature. Defendant Wilmon denied the Plaintiff had notified her and

stated that she had previously called the police because of the Plaintiff. In response,

Defendant Mynatt told the Plaintiff he was prohibited from being on campus and would be

arrested if he remained. See id., p. 8, ¶¶ 50-52. Plaintiff left campus and proceeded to a

Tahlequah city sidewalk that was in front of the University Center where “Defendant

Mynatt continued to interfere with Hershey’s First Amendment protected activities” and

told the Plaintiff to “Shut up!” This forced the Plaintiff to leave Tahlequah. See id., pp. 8-

9, ¶¶ 53-56.

The Plaintiff returned to the NSU campus on October 16, 2017, and Defendant

Mynatt, accompanied by Defendant Craig, approached the Plaintiff and Defendant

Robertson (who were already speaking with each other) and asked the Plaintiff to leave the

sidewalk. Defendant Mynatt again seized Plaintiff’s driver’s license while Defendant

Robertson issued a “Notice to Leave Campus,” which banned him from the NSU campus

for a period of six months. See id., pp. 9-10, ¶¶ 57, 64-69.

Jim Robertson. The Plaintiff alleges that when he was on the NSU campus on

October 16, 2017, Defendant Robertson, a campus police officer, approached him and

requested his permit for distributing literature. The Plaintiff informed Defendant

Robertson that a permit was not necessary, and Defendant Robertson reviewed the

Plaintiff’s driver’s license and his literature then informed Plaintiff that he could not

distribute his literature without a permit. See Docket No. 25, p. 9, ¶¶ 57-61. Defendant

Robertson, joined by Defendants Mynatt and Craig, then issued the Plaintiff a “Notice to

Leave Campus,” banning the Plaintiff from campus for six months. Defendant Robertson

also read the Notice aloud to the Plaintiff. See id., p. 10, ¶¶ 64-70.

Amanda Craig. As to Defendant Craig, the Plaintiff alleges that when he was on

the NSU campus on March 8, 2017, an NSU official contacted University police about his

activity and Defendant Craig responded along with Defendant Mynatt to the call.

Defendant Craig, along with Defendant Mynatt, informed the Plaintiff that he could not

distribute his literature on campus and seized his driver’s license. See id., pp. 6-7, ¶¶ 31-

44. The Plaintiff returned to the NSU campus on October 16, 2017 to distribute literature,

and Defendant Craig and Defendant Mynatt approached the Plaintiff and Defendant

Robertson, ultimately asking the Plaintiff to leave the sidewalk. See id., p. 9, ¶¶ 57, 64.

After Defendant Robertson issued the “Notice to Leave Campus,” Defendant Craig told

the Plaintiff that the sidewalks were private property. See id., p. 10, ¶ 71.

Analysis. In his First Amendment Complaint, the Plaintiff cites to these facts, then

asserts in Count III that Defendants Mynatt, Craig, and Robertson violated his First

Amendment rights and excluded him from the traditional public forum of the sidewalks

and outdoor courtyards of the NSU campus and thereby suffered damages. See id., pp. 16-

17, ¶¶ 111-112. Essentially, the Plaintiff contends that they interfered with his First

Amendment right to distribute leaflets in a traditional public forum, i. e., the sidewalks of

a public university. Defendants do not challenge the Plaintiff’s assertion of leafletting as

an expression of his First Amendment rights, nor of his characterization of the sidewalks

as a traditional public forum. Defendants Mynatt, Craig, and Robertson instead contend

that the Plaintiff has failed to state a claim against them because he does not assert in the

First Amended Complaint: (i) that their actions were not narrowly tailored to serve a

legitimate government interest, (ii) that there were no alternative channels to engage in his

speech, and (iii) that his speech was limited based upon its content.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. 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.” Iqbal, 556

U.S. at 678, quoting Twombly, 550 U.S. at 555, 556, 557, 570. And “[w]hile the 12(b)(6)

standard does not require that Plaintiff establish a prima facie case in her complaint, the

elements of each alleged cause of action help to determine whether Plaintiff has set forth a

plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).

Therefore, “[u]nder Khalik, a court should look to the elements of a cause of action to

determine whether a plaintiff set forth sufficient factual allegations to state a claim.”

Gillespie v. Patterson Dental Supply, Inc., 2012 WL 4758114, at *4 (N.D. Okla. Oct. 5,

2012).

The Plaintiff contends in his response brief that he properly alleged a claim that

these three Defendants interfered with his Constitutional rights based on the content of his

literature, correctly noting that he did allege that Defendant Mynatt (accompanied by

Defendant Craig) and Defendant Robertson reviewed his literature before interfering with

his distribution efforts. This creates a plausible inference that Plaintiff’s speech was a

“substantial or motivating factor.” Wulf, 883 F.2d at 856-857. He further contends that,

even if their actions were not based on the content of his literature, the Defendants (and not

Plaintiff) would be required to show that their actions were related to the time, place, and

manner, as well as narrowly tailored to serve a significant government interest leaving

ample alternative channels of communication. See Perry Education Association, 460 U.S.

at 45. Furthermore, the Court notes that the Defendants’ requirement that the Plaintiff

leave campus on March 8, 2017, and the October 16, 2017 ban provide a plausible inference

that there were no alternative channels of communication available to the Plaintiff.

Therefore, the Court finds that a plausible reading of the Plaintiff’s First Amended

Complaint sufficiently provides the Defendants “‘fair notice of what the . . . claim is and

the grounds upon which it rests[,]’” Erickson, 551 U.S. at 93, quoting Twombly, 550 U.S.

at 555, and he has sufficiently “nudged [his] claims across the line from conceivable to

plausible,” Iqbal, 556 U.S. at 680. The Plaintiff’s Count III sufficiently alleges a claim of

personal liability as to Defendants Mynatt, Craig, and Robertson. As to supervisory

liability, however, the Court finds that the Plaintiff has not alleged that any of these three

Defendants were responsible for a policy that caused his alleged constitutional harm, and

thus that it has not been raised by the Plaintiff as to these Defendants.

The Court now turns to whether the law was clearly established at the time of the

encounters. “Whether a right is ‘clearly established’ is an objective test.” Brown, 662 F.3d

at 1164. “‘In order for the law to be clearly established, there must be a Supreme Court or

Tenth Circuit decision on point, or the clearly established weight of authority from other

courts must have found the law to be as the plaintiff maintains.’” Stearns v. Clarkson, 615

F.3d 1278, 1282 (2010), quoting Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238,

1251 (10th Cir. 1999). However, “‘clearly established law’ should not be defined ‘at a high

level of generality.’” Pauly v. White, 137 S. Ct. 548, 552 (2017), quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 742 (2011). Instead, it “must be ‘particularized’ to the facts of the

case. Otherwise, plaintiffs would be able to convert the rule of qualified immunity . . . into

a rule of virtually unqualified liability simply by alleging violation of extremely abstract

rights.” Id., quoting Anderson v. Creighton, 483 U.S. 635, 639-640 (1987). “In

determining whether a right is clearly established, the relevant inquiry is ‘whether it would

be clear to a [reasonable government official] that his conduct was unlawful in the situation

he confronted.’” C.G. v. City of Fort Lupton, 2014 WL 2597165, at *7 (D. Colo. June 10,

2014), quoting Saucier v. Katz, 533 U.S. 194, 202 (2001). In this case, it is clear that a

government’s restriction on content in a traditional or designated public forum must be

necessary to serve a compelling state interest and be narrowly drawn to achieve that end.

See Perry Education Association, 460 U.S. at 45; Summum, 130 F.3d at 914. See also

Mason v. Wolf, 356 F. Supp. 2d 1147, 1162 (D. Colo. 2005) (“At the time the regulation

was devised, the First Amendment law was clearly established. The cases required a

narrowly tailored regulation enforcing a significant government interest if a governmental

entity was to restrict free speech in a designated public area. The Summum case decided in

1997 said as much, not to mention the 1983 Perry case decided by the United States

Supreme Court. At the time the regulation was applied to plaintiffs in April 2002, the law

was the same.”). This applies to distributing leaflets in a traditional public forum. See

Hill, 530 U.S. at 715 (“[L]eafletting, sign displays, and oral communications are protected

by the First Amendment[,] and public sidewalks, streets, and ways [] are ‘quintessential’

public forums for free speech.’”). It is thus clearly established law a person may distribute

leaflets on a public sidewalk without interference from government actors.

Accordingly, the allegations against Defendants Mynatt, Craig, and Robertson

do not establish that they would be entitled to qualified immunity on the Plainitff’s

claim against them, and said claim therefore cannot be dismissed for failure to state

a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

In summary, the Plaintiff’s Count II as to Defendant Wilmon is hereby dismissed

for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and Defendant Wilmon is

granted qualified immunity, but Plaintiff’s Count III as to Defendants Mynatt, Craig, and

Robertson cannot be dismissed for failure to state a claim upon which relief can be granted

pursuant to Fed. R. Civ. P. 12(b)(6) and these Defendants are not entitled to qualified

immunity.

CONCLUSION

Accordingly, the Court finds that the Defendants’ Motion to Dismiss Plaintiff’s First

Amended Complaint and Brief in Support [Docket No. 27] IS HEREBY GRANTED IN

PART and DENIED IN PART. It is GRANTED as to Count II, and DENIED as to Counts

I and III.

IT IS SO ORDERED this 21st day of April, 2020.