United States District Court, N.D. Alabama, Western Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendants' Motion to
Dismiss the Verified Amended Complaint (Doc. # 41). For the
reasons explained below, the motion is due to be denied.
is a traveling evangelist who desires to speak to college
students at the University of Alabama in Tuscaloosa, Alabama.
(Doc. # 39 at ¶¶ 12, 26-27). He specifically seeks
to share the message of Christianity on sidewalks bordering
the intersection of University Boulevard and Hackberry Lane
on the University's campus. (Id. at ¶ 27).
Plaintiff wants to evangelize by passing out gospel tracts
and engaging in prayer and one-on-one conversations with
passers-by. (Id. at ¶¶ 17-18).
Occasionally, he also preaches to those within hearing
distance. (Id. at ¶ 19).
University has a speech policy that prohibits individuals who
are neither affiliated with the University nor sponsored by a
University group from using its campus grounds to engage in
expressive activity. (Id. at ¶¶ 57-61, 74;
Doc. # 22 at 4). Unaffiliated individuals who wish to speak
on the University's campus must be sponsored by an
academic or administrative department or a registered student
organization and complete a Grounds Use Permit application.
(Doc. # 22 at 4). The permit application must be filed at
least ten business days in advance. (Id.).
March 10, 2016, the University applied its speech policy to
Plaintiff. Plaintiff and his friend went to the
University's campus to evangelize. (Doc. # 39 at ¶
45). They initially went to a sidewalk along Sixth Avenue,
across the street from a wide-open, grassy field on campus
known as “the Quad.” (Id. at
¶¶ 52-54). While there, Plaintiff passed out
literature on the sidewalk while his friend stood several
feet away from him on the same sidewalk and preached a gospel
message. (Id. at ¶ 54). After University police
officers informed them that they would need a permit to speak
in that area, Plaintiff and his friend moved to a sidewalk at
the intersection of University Boulevard and Hackberry Lane,
in front of Russell Hall. (Id. at ¶¶
55-68). The officers' supervisor, Lieutenant Odom, told
Plaintiff and his friend, “On that corner, you're
good.” (Id. at ¶¶ 60, 67).
new location, Plaintiff passed out religious literature and
preached with his natural voice in short bursts to draw
attention. (Id. at ¶ 69). He did not use
amplification. (Id.). A short time later, however,
Lieutenant Odom returned to the scene and told Plaintiff that
the sidewalks at the intersection of University Boulevard and
Hackberry Lane were in fact owned by the University and
subject to the University's speech policy. (Id.
at ¶¶ 71-74). As an unaffiliated and unsponsored
speaker without a grounds use permit, Plaintiff was not
permitted under the policy to pass out literature, preach, or
converse with passers-by at that location. (Id. at
¶ 74). Fearing arrest for criminal trespass, Plaintiff
left. (Id. at ¶ 75).
subsequently filed a lawsuit the University's President,
the Chief of Police for the University Police Department, and
Lieutenant Odom of the University Police Department. (Doc. #
1). He claimed the University's policy abridged the
freedom of speech protected by the First Amendment and was so
vague as to violate the Due Process Clause of the Fourteenth
Amendment. (Id. at 13-14). Plaintiff moved for a
preliminary injunction enjoining those officials from
enforcing the University's speech policy. (Doc. # 6).
This court denied the motion, ruling (based upon the
preliminary record supplied by the parties) that the
intersection where Plaintiff wished to speak was a limited
public forum and that Plaintiff was unlikely to succeed on
the merits of his First Amendment claim under the standard
governing limited public forums. (Doc. # 22). Plaintiff
appealed this court's denial of his preliminary
injunction motion to the Eleventh Circuit. (Doc. # 26). The
Eleventh Circuit affirmed. Keister v. Bell, 879 F.3d
1282, 1284 (11th Cir. 2018). The Eleventh Circuit held that
this court properly found that the intersection of University
Boulevard and Hackberry Lane was a limited public forum and
therefore did not abuse its discretion in denying
Plaintiff's motion for a preliminary injunction.
Id. at 1284, 1291. Because Plaintiff did not press
the issue on appeal, the Eleventh Circuit did not address
whether the University's speech policy was constitutional
under the limited-public-forum standard. Id. at 1288
n.4. It held only that the intersection in question was a
limited public forum, and that Plaintiff's First
Amendment claim should be analyzed in light of that holding.
Id. at 1291.
remand, Plaintiff filed an Amended Complaint, again alleging
violations of both the First Amendment and the Due Process
Clause. (Doc. # 39). Defendants have moved to dismiss the
Amended Complaint for failure to state a claim upon which
relief may be granted. (Doc. # 41).
Federal Rules of Civil Procedure require that a complaint
provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The complaint must include enough facts
“to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). Pleadings that contain nothing more than
“a formulaic recitation of the elements of a cause of
action” do not satisfy Rule 8, and neither do pleadings
that are based merely upon “labels and
conclusions” or “naked assertion[s]”
without supporting factual allegations. Id. at 555,
557. In deciding a Rule 12(b)(6) motion to dismiss, courts
view the allegations in the complaint in the light most
favorable to the nonmoving party. Watts v. Fla.
International Univ., 495 F.3d 1289, 1295 (11th Cir.
considering a motion to dismiss, a court should “1)
eliminate any allegations in the complaint that are merely
legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” Kivisto v. Miller, Canfield,
Paddock & Stone, PLC, 413 Fed.Appx. 136, 138 (11th
Cir. 2011) (quoting Am. Dental Assn. v. Cigna Corp.,
605 F.3d 1283, 1290 (11th Cir. 2010)). That task is context
specific, and to survive the motion, the allegations must
permit the court, based on its “judicial experience and
common sense . . . to infer more than the mere possibility of
misconduct.” Iqbal, 556 U.S. at 679. If the
court determines that well-pleaded facts, accepted as true,
do not state a claim that is plausible, the claims must be
dismissed. Twombly, 550 U.S. at 570.
has adequately alleged a violation of the First Amendment and
the Due Process Clause in his Amended Complaint.