Keister v. Bell

          MEMORANDUM OPINION

          R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Background ^[1]

         Plaintiff 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).

         The 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.).

         On 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).

         At his 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).

         Plaintiff 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.

         Following 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).

         II. Legal Standard

         The 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. 2007).

         In 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.

         III. Analysis

         Plaintiff has adequately alleged a violation of the First Amendment and the Due Process Clause in his Amended Complaint. Defendants' ...