Gundy v. City of Jacksonville Fla.

528 F.Supp.3d 1257

Reginald L. GUNDY, Plaintiff,

v.CITY OF JACKSONVILLE FLORIDA, a Municipality of the State of Florida, Defendant.

Case No. 3:19-cv-795-BJD-MCR

United States District Court, M.D. Florida, Jacksonville Division.

Signed March 22, 2021

Neil L. Henrichsen, Henrichsen Law Group, P.L.L.C., Victoria Blanche Kroell, Cole, Scott & Kissane, PA, Jacksonville, FL, for Plaintiff.

Craig D. Feiser, Jason R. Teal, Jon Robert Phillips, Gabriella Young, Mary Margaret Giannini, City of Jacksonville Office of General Counsel, Jacksonville, FL, for Defendant.

ORDER

BRIAN J. DAVIS, United States District Judge

THIS CAUSE is before the Court on the City of Jacksonville, Florida's (the "City" and/or "Defendant") Motion for Summary Judgment (Doc. 37; the "Motion") and the parties briefing related thereto (Docs. 41, 52). The Motion is fully briefed and ripe for review.

I. Findings of Fact

Many of the facts in this case are undisputed. Plaintiff is a senior pastor at Mt. Sinai Missionary Baptist Church in Jacksonville, Florida. (Doc. 38-3 at 2).¹ He was invited by Anna Brosche, a member of the City Council and mayoral candidate, to give an invocation² at the March 12, 2019 City Council meeting. Id. at 5. Plaintiff prepared his remarks in advance and brought notes with him on March 12, 2019. (Doc. 38-3 at 68-69). A complete transcript of Plaintiff's prayer from March 12, 2019 is included in the record. (Doc. 38-2). However, suffice it to say Plaintiff's prayer vacillated between appeals to a higher power for divine blessing³ and open criticism of the City Council and the incumbent administration.⁴

During Plaintiff's prayer, Aaron Bowman, who was Council President at the time, interrupted Plaintiff and stated "Mr. Gundy, I'm going to ask you – I'm going to ask you to – make it a spiritual prayer. Id. at 4-5. Plaintiff continued on with his prayer for a short time before Mr. Bowman cut off Plaintiff's microphone. Id. at 6. Mr. Bowman, as Council President, had the ability to cut off access to the microphone pursuant to the body's procedural rules – specifically, the Rules of the Council of the City of Jacksonville (the "Council Rules"), which gives the Council President general authority over City Council meetings. Council Rule 1.202. Plaintiff and Ms. Brosche believed Mr. Bowman's decision to silence Plaintiff was motivated by Mr. Bowman's support of Ms. Brosche's opponent in the in-progress mayoral race: the incumbent mayor, Lenny Curry. (Doc. 16 at ¶ 38); (Doc. 41-1).

Following the City Council meeting, Mr. Bowman took two actions pertinent to Plaintiff's claims. The day after Plaintiff's invocation, Mr. Bowman posted a message on social media that was critical of the manner in which Plaintiff's invocation was conducted and expressed thinly veiled contempt for Ms. Brosche. (Doc. 38-3). He then prepared a memorandum outlining guidance for the City Council on future invocations (the "Bowman Memo"). (Doc. 38-4 at 154-56). He sought to formally adopt his guidance as City policy by proposing new legislation incorporating it. Id. at 159-61. The measure was ultimately withdrawn by Mr. Bowman and no City action was taken with respect to the invocation policy. Id. at 166.

Plaintiff filed this lawsuit on July 2, 2019, which included claims under 42 U.S.C. section 1983 (hereafter, " Section 1983") and the Florida Constitution for alleged violations of Plaintiff's free speech and free exercise rights. (Doc. 1). The City moved to dismiss the action (Doc. 18), which was partially granted (Doc 36). The only claims which remain at issue are Plaintiff's free speech claims under Section 1983 and the Florida Constitution in Counts II and IV of the Amended Complaint, respectively. Id.

II. Legal Standard

Under the Federal Rules of Civil Procedure, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The record to be considered on a motion for summary judgment may include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the non-movant. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993) ). "[A] mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment." Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).

The party seeking summary judgment bears the initial burden of demonstrating to the Court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). "When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (internal citations and quotations omitted). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In determining whether summary judgment is appropriate, a court "must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994) ).

III. Discussion

The Court begins by noting that two issues preliminarily addressed in the Court's order on the City's Motion to Dismiss (Doc. 36) remain unchanged. The Court previously determined there were elements of Plaintiff's invocation that were private speech, as opposed to government speech. Id. at 5-10. The City has maintained its position that Plaintiff's invocation was government speech and therefore not protected by the First Amendment. (Doc. 37 at 6-7). However, the only additional fact provided in support of the City's position is the Webb Policy adopted by the City in 2010 with respect to invocations. (Doc. 38-4 at 150-51). The Webb Policy, which was still in effect at the time Plaintiff gave his invocation, emphasized that the invocation is meant for the City Council's benefit and placed some restraints on the content of invocations. Id. Specifically, the Webb Policy stated invocations "must not be exploited to ... disparage any other faith or belief." Id. at 151. While this factor may tilt the "control" factor discussed in the Court's prior Order (Doc. 36), this fact alone is insufficient to alter the Court's prior analysis. As such, the factors set forth in Cambridge Christian School, Inc. v. Florida High School Athletic Assn., Inc., continue to support a finding that the contents of Plaintiff's prayer was his own private speech. 942 F.3d 1215, 1240 (11th Cir. 2019).

The Court also found the forum at issue in this case was a nonpublic forum. Id. at 10-12. The Court previously found that the allegations in the Amended Complaint (Doc. 16) indicated the invocation period during City Council meetings were limited to people expressly invited to speak by the City Council and reserved for a specific type of address, as outlined in the Webb Policy. (Doc. 36 at 11-12). This type of forum is clearly distinct and set apart from a more public forum, like the public comments portion of each City Council meeting. See, e.g. Cleveland v. City of Cocoa Beach, Fla., 221 F. App'x 875, 878 (11th Cir. 2007) (noting the distinction between the government's ability to restrict speech to specific topics in a city council meeting versus the limited authority to restrict speech in public forums). The parties did not submit any evidence or argument against the Court's earlier determination and the Court finds no reason to deviate from its earlier finding now that the record is more developed.

With those determinations in mind, the Court turns to the City's first argument related to the scope of municipal liability under Section 1983. (Doc. 37 at 10). A city or municipality may be liable in a Section 1983 action "only where the municipality itself causes the constitutional violation at issue." Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1115 (11th Cir. 2005) (citations and emphasis omitted). Thus, a plaintiff must establish that an official policy or custom of the municipality was the "moving force" behind the alleged constitutional deprivation. See Monell v. Dept. of Social Services, 436 U.S. 658, 693–94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Under Monell, "a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691, 98 S.Ct. 2018. To impose liability on a municipality, "a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation." McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (internal citation omitted).

"A policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could...