Neinast v. Bd Trustees Columbus

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Neinast v. Bd. of Trs. of the No. 02-3482

ELECTRONIC CITATION: 2003 FED App. 0363P (6th Cir.) Columbus Metro. Library et al.

File Name: 03a0363p.06

_________________

UNITED STATES COURT OF APPEALS COUNSEL

FOR THE SIXTH CIRCUIT ON BRIEF: Philomena M. Dane, Johnathan E. Sullivan,

_________________ SQUIRE, SANDERS & DEMPSEY, Columbus, Ohio, for

Appellees. Robert A. Neinast, Pickerington, Ohio, pro se.

ROBERT A. NEINAST , X

Plaintiff-Appellant, - _________________

-

- No. 02-3482 OPINION

v. - _________________

>

, JULIA SMITH GIBBONS, Circuit Judge. Robert A.

BOARD OF TRUSTEES OF THE -

COLUMBUS METROPOLITAN Neinast, a patron of the Columbus Metropolitan Library

- (Library) was evicted from the Library as a result of going

LIBRARY; LARRY D. BLACK; - barefoot. Neinast brought suit against the Board of Trustees

VONZELL L. JOHNSON, - of the Columbus Metropolitan Library (Board) and others

Defendants-Appellees. - under 42 U.S.C. § 1983, claiming violations of his rights

- under the First, Ninth, and Fourteenth Amendments of the

N United States Constitution, Article I of the Ohio Constitution,

Appeal from the United States District Court and Ohio Revised Code § 3375.40. All parties moved for

for the Southern District of Ohio at Columbus. summary judgment. The district court granted summary

No. 01-00443—Algenon L. Marbley, District Judge. judgment in favor of defendants-appellees. For the reasons

set forth below, we affirm the judgment of the district court.

Submitted: August 1, 2003

I.

Decided and Filed: October 10, 2003

Plaintiff-appellant Neinast, a resident of Pickerington,

Before: KENNEDY, GILMAN, and GIBBONS, Circuit Ohio, regularly goes barefoot and often uses the Library.

Judges. Defendant-appellee Board serves as the regulating authority

of the Library and is authorized by Ohio Revised Code

§ 3375.40 to “[m]ake and publish rules for the proper

operation and management of the free public library and

facilities under its jurisdiction, including rules pertaining to

the provision of library services to individuals, corporations,

or institutions that are not inhabitants of the county.”

Defendant-appellee Larry D. Black is the Executive Director

1

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of the Library, and defendant-appellee Vonzell Johnson is the On January 19, 2001, Neinast wrote another letter

Assistant Manager of Security for the Library. Although the expressing his concerns about the prohibition on using the

Patron Regulations of the Library (approved by the Board) do Library without shoes, and on January 30, 2001, Black asked

not contain a prohibition on using the Library without shoes, the Franklin County Prosecutor’s Office “for the legal reasons

the Library’s Eviction Procedure (approved by the Executive that [the Board] can give for requiring its customers to dress

Director) does provide that patrons not wearing shoes be appropriately for a public place.” In a letter dated February

given a warning and be “asked to leave [the] premises to 7, 2001, the prosecutor’s office responded that in accordance

correct the problem.” with Kreimer v. Bureau of Police of Morristown, 958 F.2d

1242 (3d Cir. 1992), “the Library may implement reasonable

On several different occasions between 1997 and 2001, rules for the operation of the Library or the conduct of Library

Neinast was asked to leave the Library for failure to comply business, including a requirement that patrons wear shoes

with the Library’s requirement that patrons wear shoes while while in the library.”

on its premises. Neinast first was asked to leave the Library

for not wearing shoes on September 12, 1997. On November On March 5, 2001, following his one-day eviction from the

10, 2000, Neinast again was informed that he would have to Library on March 2, 2001, Neinast sent another letter to

wear shoes in order to use the Library’s facilities and was Black, the Board, and the prosecutor’s office. On March 12,

asked to leave. On January 23, 2001, Neinast was asked to 2001, Black informed Neinast that he had “been made aware

leave for the same reason. On March 2, 2001, Neinast again that we require our customers to wear shoes while using the

entered the Library barefoot, and subsequently was Columbus Metropolitan Library facilities” and that he had

approached by two security officers and taken to the security been “provided a legal opinion . . . stating that the Library has

desk, where one of the officers, acting under the supervision the legal authority to make and enforce such a rule,” and

of Johnson, presented Neinast with a one-day eviction from concluding that the Library “will not respond to further

the Library. correspondence on this matter.”

After being asked to leave on November 10, 2000, Neinast On April 3, 2001, Neinast, acting pro se, filed a complaint

wrote a letter to Black dated November 16, 2000, and a letter in the Franklin County Court of Common Pleas alleging

to the Board dated December 11, 2000, complaining of the violations of 42 U.S.C. § 1983 based on deprivations of his

enforcement of the Eviction Procedure and the procedure’s First, Ninth, and Fourteenth Amendment rights under the

alleged inconsistency with the Patron Regulations. In a United States Constitution and his rights under Article I of the

response dated December 14, 2000, the Board informed Ohio Constitution. Defendants-appellees removed this case

Neinast that Black had “the authority to make such decisions” to the United States District Court for the Southern District of

and that the Board believed that Black “had made the correct Ohio on May 11, 2001 and filed an answer on May 24, 2001.

one.” According to the Library Organization Policy, Black Neinast filed an amended complaint on June 27, 2001. On

(as the Executive Director) is responsible for “determining July 9, 2001, defendants-appellees filed an answer to the

internal policies and procedures, . . . public relations, relations amended complaint. Both parties then filed motions for

with the community and governmental agencies, and the summary judgment. On March 27, 2002, the district court

handling of all other matters involved with the operation of granted summary judgment in favor of defendants-appellees.

the library system.” Neinast timely filed his notice of appeal on April 25, 2002.

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II. Neinast had a First Amendment right of access to the Library,

but rejected his claim, finding the Board’s requirement that

A district court’s grant of a motion for summary judgment patrons of the Library wear shoes to be “a valid, content-

is reviewed de novo. See Braithwaite v. The Timken Co., 258 neutral regulation that promotes communication of the written

F.3d 488 (6th Cir. 2001). Where the parties have filed cross- word in a safe and sanitary condition.” Neinast v. Bd. of Trs.

motions for summary judgment, this court “evaluate[s] each of Columbus Metro. Library, 190 F.Supp.2d 1040, 1044

motion on its own merits and view[s] all facts and inferences (S.D.Ohio 2002). The district court concluded that “to the

in the light most favorable to the nonmoving party.” Wiley v. extent that it limits Plaintiff’s right of access to speech, the

United States, 20 F.3d 222, 224 (6th Cir. 1994). However, an Library’s shoe regulation satisfies this intermediate scrutiny.”

opponent of a motion for summary judgment “may not rest Id. Neinast now argues that the presence of feces, semen,

upon mere allegations or denials of his pleading, but . . . must blood, and broken glass in or around the library system, as

set forth specific facts showing that there is a genuine issue established by incident reports, fails to represent any danger

for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 to barefooted patrons. Neinast asserts that “the shoe policy is

(1986). The party opposing the motion must “do more than substantially broader than necessary, even if one assumes that

simply show that there is some metaphysical doubt as to the the Library’s incidents constitute hazards to barefooted

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio persons.” Neinast also claims that the Board’s claim of a

Corp., 475 U.S. 574, 586 (1986). “If after reviewing the substantial governmental interest in public safety represents

record as a whole a rational factfinder could not find for the “an expansion of the police power beyond its traditional

nonmoving party, summary judgment is appropriate.” boundaries.”

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,

349 (6th Cir. 1998) (citing Matsushita, 475 U.S. at 587). The First Amendment protects the right to receive

information. Stanley v. Georgia, 394 U.S. 557, 564 (1969)

A. (“It is now well established that the Constitution protects the

right to receive information and ideas.”). This right to receive

Neinast claims that the Board’s enforcement of the information “includes the right to some level of access to a

requirement that patrons of the Library wear shoes deprived public library, the quintessential locus of the receipt of

him of his right to receive information under the First and information.” Kreimer v. Bureau of Police for the Town of

Fourteenth Amendments.1 The district court assumed that Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992); see also

Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577, 582

(6th Cir. 1976) (“A library is a mighty resource in the free

1

At the district court level, Neinast also asserted that walking

marketplace of ideas.”); Armstrong v. Dist. of Columbia Pub.

barefoot constituted speech protected by the First Amendment, that the Library, 154 F.Supp.2d 67, 75 (D.D.C. 2001) (noting the

shoe regulation violates his equal protection rights, and that the individual existence of “long-standing precedent supporting plaintiff’s

defendants were not entitled to qualified immunity. The district court First Amendment right to receive information and ideas, and

found that Neinast’s practice of going barefoot in public buildings did not this right’s nexus with access to public libraries”).

qualify as symbolic speech, that his equal protection rights had not been

violated, and that the individual defendants were shielded from liability.

See Nein ast v. B d. of Trs. of Columbus M etro. Library, 190 F.Supp.2d

1044-46, 1048-49 (S.D.Ohio 2002). On appeal, Neinast does not challenge these conc lusions.

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For the purposes of First Amendment analysis, the Library summarized their purpose as “insur[ing] appropriate sound

is a limited public forum. Kreimer, 958 F.2d at 1259; Sund quality balanced with respect for nearby residential neighbors

v. City of Wichita Falls, Texas, 121 F.Supp.2d 530, 548 and the mayorally decreed quiet zone of Sheep Meadow.” Id.

(N.D.Tex. 2000); Mainstream Loudon v. Bd. of Trs. of The Ward guidelines regulation, albeit content-neutral,

Loudon County Library, 24 F.Supp.2d 552, 563 (E.D.Va. restricted the volume of speech, and in so doing, had a direct

1998). As such, the Library “is obligated only to permit the impact on speech. While the Library regulation at issue in

public to exercise rights that are consistent with the nature of this case is also content-neutral, it does not directly impact the

the Library and consistent with the government’s intent in right to receive information. Therefore, applying the

designating the Library as a public forum.” Kreimer, 958 heightened scrutiny standard of Ward to the Library

F.2d at 1262. Traditionally, libraries provide a place for regulation is not appropriate.

“reading, writing, and quiet contemplation.” Id. at 1261. Not

all aspects of a library involve the right to receive Instead we review the Library regulation under a rational

information, however. For example, a library that consisted basis standard. See Thompson v. Ashe, 250 F.3d 399, 407

of a card catalog, a circulation desk, and closed stacks would (6th Cir. 2001) (holding that where there has been no

be perfectly capable of allowing patrons to exercise their right infringement of a fundamental right, review under a rational

to receive information, but would not be a place where basis standard is appropriate); Memphis Am. Fed’n of

patrons could read, write, and quietly contemplate. Teachers, Local 2032 v. Bd. of Ed. of Memphis City Sch., 534

F.2d 699, 703 (6th Cir. 1976) (same). “The rational basis test

As previously noted, the requirement for our consideration requires the court to ensure that the government has employed

provides for the denial of access to the Library based upon a rational means to further its legitimate interest.” Peoples

patron’s failure to wear shoes. In Ward v. Rock Against Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 532 (6th

Racism, the United States Supreme Court reviewed a Cir. 1998). Moreover, “[u]nder the rational basis review, a

regulation in which the government “regulate[d] expression” court usually will uphold regulations because ‘the state’s

according to a heightened standard of scrutiny. 491 U.S. 781, important regulatory interests are generally sufficient to

791 (1989). Moreover, the Court held that “the government justify them.’” Citizens for Legislative Choice v. Miller, 144

may impose reasonable restrictions on the time, place, or F.3d 916, 921 (6th Cir. 1998) (quoting Anderson v.

manner of protected speech, provided the restrictions ‘are Celebrezze, 460 U.S. 780, 788 (1983)). The Library

justified without reference to the content of the regulated regulation survives rational basis review because the

speech, that they are narrowly tailored to serve a significant regulation provides a rational means to further the legitimate

governmental interest, and that they leave open ample government interests of protecting public health and safety

alternative channels for communication of the information.’” and protecting the Library’s economic well-being by seeking

Id. (quoting Clark v. Community for Creative Non-Violence, to prevent tort claims brought by library patrons who were

468 U.S. 288, 293 (1984)). injured because they were barefoot.

In Ward, the Court reviewed use guidelines promulgated by B.

the City of New York that only the City could provide sound

equipment and sound technicians for performances given at Even if we were to conclude that heightened scrutiny is

the Central Park Bandshell. Id. at 788. The guidelines appropriate in the instant case, we believe that the Library

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regulation would meet this standard. The requirement that actually disrupt the Library. . . . Indeed, the district court

patrons of the Library wear shoes is “narrowly tailored to itself implicitly acknowledged this point when it

serve a significant governmental interest” and “leave[s] open modified its order so that it did not invalidate the rule

ample alternative channels for communication of requiring the wearing of shoes, since it can hardly be

information.” Ward, 491 U.S. at 791. imagined that a person simply by being barefoot would

disrupt the Library.

In Kreimer, a homeless man challenged several public

library rules regulating patron behavior, one of which Id. at 1263 n.25.

provided that:

In this case, Neinast argues that he was “using the Library

Patrons shall not be permitted to enter the building for its intended purpose when he was asked to leave, and that

without a shirt or other covering of their upper bodies or his bare feet did not disrupt the library.” As the Third Circuit

without shoes or other footwear. Patrons whose bodily observed in Kreimer, however, “the Library is not confined to

hygiene is offensive so as to constitute a nuisance to prohibiting behavior that is actually disruptive.” 958 F.2d at

other persons shall be required to leave the building. 1264 n.28. Here, according to the Board, the requirement that

patrons of the Library wear shoes was promulgated “in order

958 F.2d at 1248. The district court found the rule to be “null to protect the safety of Library patrons from documented

and void on [its] face” and enjoined the Library from hazards within the Library – including blood, feces, semen

enforcing the rule, but later modified its order, explaining and broken glass that have, on occasion, been found there.”

“that it was not invalidating the rule[] to the extent that [it] Specifically, in an affidavit dated August 2, 2001, Black

required the wearing of shoes or shirts.” Id. at 1250. The stated that he approved the requirement that patrons of the

Library appealed, and the Third Circuit reversed the district Library wear shoes in order to protect “the health and safety

court. The court noted that the Library “has a significant of Library patrons, who may be harmed in the Library if

interest in ensuring that ‘all patrons of the [Library] [can] use allowed to enter barefoot” and “the economic well-being of

its facilities to the maximum extent possible during its the Library, by averting tort claims and litigation expenses

regularly scheduled hours.’” Id. at 1264 (emphasis in stemming from potential claims made by barefoot patrons

original). The court explained that the invalidated portion of who could have suffered injuries that shoes could have

the rule “prohibits one patron from unreasonably interfering

with other patrons’ use and enjoyment of the Library” and

“further promotes the Library’s interest in maintaining its

facilities in a sanitary and attractive condition.” Id. In dicta,

the court added that the Library’s rules need not “condition

exclusion upon actual or imminent disruption.” Id. The court

also suggested that the portion of the rule requiring patrons to

wear shoes would pass constitutional muster:

[I]t seems obvious that the Library may regulate conduct

protected under the First Amendment which does not

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prevented.”2 These concerns qualify as significant on the floor of the reading area (JA 161, 165, 168, 176, 266,

governmental interests. 276, 291), and broken glass in the lobby (JA 185). The Board

also has submitted reports describing incidents where a patron

“Throughout our history the several States have exercised scraped his arm on a staple in the carpet in the meeting room,

their police powers to protect the health and safety of their causing bleeding (JA 260), where a patron’s foot went into a

citizens. Because these are primarily, and historically, . . . gap between the bottom of a door and the ground, causing a

matter[s] of local concern, the States traditionally have had cut (JA 297), and where a barefoot patron’s toe was caught in

great latitude under their police powers to legislate as to the a door, causing bleeding and requiring the assistance of

protection of the lives, limbs, health, comfort, and quiet of all paramedics (JA 301). The Board thus has demonstrated the

persons.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) existence of a significant health and safety risk to individual

(quotations and citations omitted). Here, the Board has barefoot patrons.

provided incident reports documenting various hazards to

barefoot patrons, including the presence of feces on the floor Having established the existence of a significant risk of

of the restroom and in the reading area (JA 133, 153, 163, harm to individual barefoot patrons, this court next must

176, 197, 212, 250, 252, 254, 256, 257), vomit on the floor of determine whether a significant cost to the general public also

the restroom and in the children’s area (JA 170, 224), broken has been shown. “To justify the state in . . . interposing its

ceiling tiles on the floor of the restroom (JA 134), splintered authority in behalf of the public, it must appear – First, that

chair pieces in the children’s area (JA 140), drops of blood on the interests of the public . . . require such interference; and,

the floor of the restroom (JA 184), urine in the elevator, on second, that the means are reasonably necessary for the

the floor of the bathroom, on a chair in the reading area, and accomplishment of the purpose, and not unduly oppressive

upon individuals.’” Fair Hous. Advocates Ass’n, Inc. v. City

of Richmond Heights, Ohio, 209 F.3d 626, 643 (6th Cir.

2

Neinast argues that the Board’s stated interests are not genuine and 2000) (quoting Lawton v. Steele, 152 U.S. 133, 137 (1894)).

notes that the Eviction Guidelines refer only to “[i]nappropriate dress,” Courts consistently have upheld statutes primarily directed at

while making no m ention of health and safety or economic well-being. preventing injury to an individual on the basis of the impact

There is some evidence in the record suggesting that the Board had an

interest in requiring pro per attire. As previously mentio ned, in a letter to

upon the general public. See, e.g., Picou v. Gillum, 874 F.2d

the Franklin County Prosecutor’s Office dated January 30, 2001, Black 1519, 1522 (11th Cir. 1989) (noting that although the

requested “the legal reasons that [the Library] can give for requiring its “primary aim” of a state statute requiring motorcycle riders to

customers to dress appropriately for a public place.” As the Supreme wear protective headgear “is prevention of unnecessary injury

Court has noted, in the intermediate scrutiny context the state is expected to the cyclist himself,” the “costs of this injury may be borne

“to give its real reasons for passing an ordinance.” Watchtower Bible and by the public”).

Tract Soc’y of New York, Inc. v. Vill. of Stratton, 536 U.S. 150, 170

(2002) (Breyer, J., concurring). However, the Court also explained that

the state may “rely on the rationale in the courts below,” as long as the Here, the Board’s stated rationale for its requirement that

reviewing court itself “does not supply reasons.” Id. at 169-70. In this patrons of the Library wear shoes is not only to protect

case, the interests advanced by the Bo ard in the district court and on individual barefoot patrons from harm to themselves, but also

appeal are reflected in Black’s affidavit. Neither the d istrict court nor this to protect the general public “by averting tort claims and

court manu factured these reasons. Consequently, consideration of the

Bo ard’s stated interests in health and safety and econ omic well-being is

litigation expenses stemming from potential claims by

appropriate. barefoot patrons who could have suffered injuries that shoes

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could have prevented.” Avoiding the expense of litigation is occasion feces was found among the books (JA 212), that on

a legitimate governmental interest. See Listle v. Milwaukee one occasion vomit was found in the children’s area (JA 224),

County, 138 F.3d 1155, 1160 (7th Cir. 1998). Injuries that on one occasion splintered pieces of a chair were found

suffered by individual barefoot patrons of the Library also in the children’s area (JA 140), that on three occasions urine

impose broader societal costs. In this case, the Board has was found in the elevator and in the reading area (JA 161,

presented evidence that on at least one occasion paramedics 266, 291), that on one occasion broken glass was found in the

were summoned to assist a barefoot patron who suffered an lobby (JA 185), and that on one occasion a staple was found

injury to her feet while in the Library. Describing the costs in the carpet of the reading room (JA 260). In light of the fact

borne by the general public as a result of the failure of that the Board has documented the presence of hazards

motorcyclists to wear helmets, the Eleventh Circuit explained throughout the Library buildings, we find the requirement that

that “[s]tate and local governments provide police and patrons wear shoes to be narrowly tailored.

ambulance services, and the injured cyclist may be

hospitalized at public expense.” Picou, 874 F.2d at 1522. Finally, the requirement that patrons wear shoes leaves

Similarly, in this case barefoot patrons of the Library who are open alternative channels for communication. “[S]o long as

injured as a result of the hazards previously described impose a patron complies with the rules, he or she may use the

costs on the general public. For these reasons, we conclude Library’s facilities.” Kreimer, 958 F.2d at 1264. In this case,

that the Board has demonstrated a significant governmental as long as Neinast wears shoes, he may receive information

interest in requiring that patrons of the Library wear shoes. in the Library. Consequently, Neinast may be prohibited

from going barefoot while in the limited public forum of the

In addition, the Board’s requirement that patrons of the Library.

Library wear shoes is sufficiently narrow. In order to satisfy

the “narrowly tailored” requirement, a regulation “need not be C.

the least restrictive or least intrusive means” of serving the

government’s legitimate, content-neutral interests. Ward, 491 Neinast asserts that the Board’s enforcement of the

U.S. at 798. All that is required is “a fit that is not necessarily requirement that patrons of the Library wear shoes deprived

perfect, but reasonable; that represents not necessarily the him of his right of personal appearance under the First, Ninth,

single best disposition but one whose scope is in proportion and Fourteenth Amendments. Specifically, Neinast argues

to the interest served.” Bd. of Trs. of State Univ. of New York that the district court erred by failing “to recognize, as a

v. Fox, 492 U.S. 469, 480 (1989) (quotation omitted). matter of law, the existence of the right of personal

Neinast argues that the requirement that patrons of the Library appearance, either as a fundamental right or as a protected

wear shoes is not narrowly tailored because although the liberty interest.” Neinast claims that while rational basis

documented hazards occurred “almost exclusively in the review may be appropriate in situations involving government

restrooms or outside the Library building,” the challenged employees, the instant case requires strict scrutiny, since it

provision requires that patrons wear shoes “everywhere in the involves “a member of the general public.”

Library buildings, even amongst the books.” Close scrutiny

of the record, however, reveals that hazards to barefoot In Kelley v. Johnson, 425 U.S. 238 (1976), the Supreme

patrons can be found throughout the Library buildings. Court observed that “whether the citizenry at large has some

Specifically, the Board has provided evidence that on one sort of ‘liberty’ interest within the Fourteenth Amendment in

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matters of personal appearance is a question on which this Peotone, 903 F.2d 510, 514 (7th Cir. 1990) (reviewing village

Court’s cases offer little, if any, guidance.” Kelley, 425 U.S. regulation prohibiting off duty police officers from wearing

at 244. Although the Court went on to assume, for the ear studs under rational basis test).

purposes of the case, that a liberty interest existed, it did not

affirmatively acknowledge such an interest. Id. However, a “Even foolish and misdirected provisions are generally

considerable body of precedent suggests the existence of a valid if subject only to rational basis review.” Craigmiles v.

liberty interest in one’s personal appearance. Giles, 312 F.3d 220, 223-24 (6th Cir. 2002). Consequently,

this court will not overturn the Board’s requirement that

In general, “[l]iberty under law extends to the full range of patrons of the Library wear shoes unless the varying treatment

conduct which the individual is free to pursue.” Bolling v. of barefoot persons “is so unrelated to the achievement of any

Sharpe, 347 U.S. 497, 499 (1954); see also Poe v. Ullman, combination of legitimate purposes that we can only conclude

367 U.S. 497, 543 (1961) (Harlan, J., dissenting) (describing that the [Board’s] actions were irrational.” Kimel v. Florida

liberty as “a rational continuum which, broadly speaking, Bd. of Regents, 528 U.S. 62, 84 (2000) (quotation omitted).

includes a freedom from all substantial arbitrary impositions In order to prevail, Neinast must negate “every conceivable

and purposeless restraints”). Other circuits specifically have basis that might support” the requirement that patrons wear

found the existence of a liberty interest in personal shoes. Craigmiles, 312 F.3d at 224 (quoting Lehnhausen v.

appearance. See DeWeese v. Town of Palm Beach, 812 F.2d Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). Here,

1365, 1367 (11th Cir. 1987) (prohibiting shirtless male jogger as previously discussed, the Board has made the reasonable

unreasonable); Domico v. Rapides Parish Sch. Bd., 675 F.2d determination that the requirement that patrons of the Library

100, 101 (5th Cir.1982) (noting that “there is a constitutional wear shoes is necessary to protect both “the health and safety

liberty interest in choosing how to wear one’s hair”). “[S]ince of Library patrons, who may be harmed in the Library if

Kelley, the nation’s courts have assumed or found [a liberty allowed to enter barefoot,” and “the economic well-being of

interest] in a veritable fashion show of different factual the Library, by averting tort claims and litigation expenses

scenarios.” Zalewska v. County of Sullivan, New York, 316 stemming from potential claims made by barefoot patrons

F.3d 314, 321 (2d Cir. 2003). who could have suffered injuries that shoes could have

prevented.” Consequently, the Board’s requirement that

Assuming the existence of a liberty interest in personal patrons of the Library wear shoes satisfies rational basis

appearance, we must next determine whether the Board review.

unconstitutionally infringed upon Neinast’s liberty interest by

mandating that he wear shoes in the Library. The Sixth D.

Circuit previously has held that personal appearance is not a

fundamental right. See Gfell v. Rickelman, 441 F.2d 444, 446 Neinast claims that Black presently is “enforcing a barefoot

(6th Cir. 1971) (“We are unable to agree with some courts policy that is not authorized by State Law” or by the Board,

that the freedom of choosing one’s hair style is a fundamental and that Johnson “enforced that barefoot policy in a manner

right.”). Since the Board’s requirement that patrons of the sanctioned by neither State Law, nor the Eviction Procedure,”

Library wear shoes does not implicate a fundamental right, it thereby depriving Neinast of procedural due process. These

is subject to rational basis scrutiny. See DeWeese, 812 F.2d claims lack merit.

at 1367; see also Domico, 675 F.2d at 102; Rathert v. Vill. of

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First, Neinast cannot base his procedural due process claim of state law – namely, the amount of rulemaking authority the

on the Board’s allegedly “improper adoption of a rule of Board properly can delegate to its Executive Director under

general applicability.” Reichelt v. Gates, 967 F.2d 590, 1992 Ohio Revised Code § 3375.40 – and thus falls outside the

WL 127057, at *2 (9th Cir. June 11, 1992) (citing United scope of § 1983.

States v. Florida East Coast Ry. Co., 410 U.S. 224, 244-46

(1973)). “Governmental determinations of a general nature With regard to his second claim, Neinast argues that the

that affect all equally do not give rise to a due process right to procedures employed by Johnson when serving Neinast with

be heard.” Nasierowski Bros. Inv. Co. v. City of Sterling a one-day eviction from the Library departed from the

Heights, 949 F.2d 890, 896 (6th Cir. 1991). Since the Eviction Procedure, thereby depriving him of procedural due

requirement that all patrons of the Library wear shoes is of process. The Eviction Procedure states that patrons wearing

general applicability, Neinast’s procedural due process rights “inappropriate dress, to include but not be limited to: no shirts

have not been violated with respect to the provision’s and no shoes” are to be “asked to leave [the] premises to

adoption. correct the problem.” After violating this provision on

March 2, 2001, however, Neinast was served with a one-day

Neinast admits that the Board “properly promulgated their eviction for a violation described as “improper dress/staff

Patron Regulations,” but observes that the Patron Regulations harassment.”

themselves contain no express requirement that patrons of the

Library wear shoes. However, the issue of whether the While “[t]he touchstone of due process is protection of the

Board’s delegation of authority to the Executive Director to individual against arbitrary action of government,” Wolff v.

establish the Eviction Procedures was proper is a matter of McDonnell, 418 U.S. 539, 558 (1974), the fact that Johnson

state law. Section 1983, upon which Neinast bases his claim, did not follow the Eviction Procedure, standing alone, does

authorizes courts to redress violations of “rights, privileges, not establish a denial of due process. “Due process of law

or immunities secured by the Constitution and [federal] laws” guarantees ‘no particular form of procedure; it protects

that occur under color of state law. “The statute is thus substantial rights.’” Mitchell v. W. T. Grant Co., 416 U.S.

limited to deprivations of federal statutory and constitutional 600, 610 (1974) (quoting NLRB v. Mackay Co., 304 U.S. 333,

rights. It does not cover official conduct that allegedly 351 (1938)). It is unclear what level of process Neinast

violates state law.” Huron Valley Hosp., Inc. v. City of claims he was entitled to receive. The Supreme Court has

Pontiac, 887 F.2d 710, 714 (6th Cir. 1989) (citing Baker v. observed that “‘[d]ue process is flexible and calls for such

McCollan, 443 U.S. 137, 146 (1979)). Neinast concedes that procedural protections as the particular situation demands.’”

the Board’s delegation of authority to Black “regarding Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting

internal polices and procedures” was proper, but argues that Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). At a

Black “was not granted the authority to create and enforce an minimum, however, “‘[p]arties whose rights are to be affected

external regulation.”3 Neinast’s claim turns upon a question are entitled to be heard; and in order that they may enjoy that

right they must first be notified.’” Goss v. Lopez, 419 U.S.

3

Neinast mischaracterizes the extent of the authority granted to Black

by the Board . As previously noted , Black was not merely limited to relations, relations with the community, . . . and the handling of all other

“internal policies and procedures,” b ut also was responsible fo r “pub lic matters involved with the operation of the library system.”

No. 02-3482 Neinast v. Bd. of Trs. of the 19

Columbus Metro. Library et al.

565, 579 (1975) (quoting Baldwin v. Hale, 1 Wall. 223, 233,

17 L.Ed. 531 (1864)). Here, immediately prior to Neinast’s

eviction on March 2, 2001, Chris Taylor (another employee

of the Library) and Johnson discussed the eviction procedure

with Neinast. Neinast was notified of the charges against him

by Johnson, who stated that “he was harassing the staff by

continuing to come in without his shoes on.” Neinast

expressed his disagreement and “reminded [Taylor and

Johnson] that [the Library’s] procedure only states that [the

Library] may ask him to leave.” Neinast thus was provided

with notice of the charges against him and “‘an opportunity

to present his side of the story.’” Boals v. Gray, 775 F.2d

686, 690 (6th Cir. 1985) (quoting Goss v. Lopez, 419 U.S.

565, 581 (1975)). Regardless of what procedure is generally

due when a patron of a public library contests charges giving

rise to a proposed short-term eviction, under the particular

facts of this case the procedure by which Neinast was evicted

was constitutional. Consequently, summary judgment for

defendants-appellees was proper.

III.

For all of the foregoing reasons, we affirm the judgment of

the district court.