Heaney v. Roberts

147 F.Supp.3d 600

Tom Heaney

v.Christopher L. Roberts, et al.

CIVIL ACTION NO: 14–2104

United States District Court, E.D. Louisiana.

Signed December 1, 2015

Filed December 2, 2015

Brett John Prendergast, Michael Gerard Riehlmann, Attorney at Law, New Orleans, LA, for Tom Heaney.

Guice Anthony Giambrone, III, Alexis Katz Caughey, Craig R. Watson, Blue Williams, LLP, Metairie, LA, Christian Wayne Helmke, Colleen Boyle Gannon, Donna R. Barrios, Richard A. Weigand, APLC, Leonard Louis Levenson, Attorney at Law, New Orleans, LA, for Christopher L. Roberts, et al.

ORDER AND REASONS

JAY C. ZAINEY, UNITED STATES DISTRICT JUDGE

The following motions are before the Court: Motion for Summary Judgment (Rec. Doc. 37) filed by defendants Christopher L. Roberts and the Parish of Jefferson; Motion for Summary Judgment (Rec. Doc. 36) filed by defendants Ronald Black and the City of Gretna. Plaintiff Tom Heaney opposes the motions. The motions, noticed for submission on August 12, 2015, are before the Court on the briefs without oral argument.¹ For the reasons that follow, both motions are GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

Plaintiff Tom Heaney has filed this complaint pursuant to 42 U.S.C. § 1983 and state law. Heaney contends that the defendants violated his constitutional rights during a Jefferson Parish Council meeting. The defendants are Councilman Christopher L. Roberts, the Parish of Jefferson, Gretna police officer Ronald Black, and the City of Gretna.

Heaney alleges that he attended the regularly scheduled Jefferson Parish Council meeting on September 18, 2013, which was held in Gretna, Louisiana. (Rec. Doc. 1, Complaint ¶ 3). Heaney was registered to speak that night during the time allotted for public comment. Roberts was presiding as chair of the meeting. Per council rules, Heaney was allotted five minutes to speak. (Id. at 3). Heaney expressed his opinion on the legality of certain campaign contributions by no-bid contractors and he contends that having used only three minutes of his time, Roberts asked him to yield the floor so that the Parish Attorney could opine on the issue. (Complaint ¶¶ 6-7). Heaney asked that he be allowed the full balance of his remaining time allotment, and Roberts confirmed that he would receive it. (Id. ).

When Heaney began speaking again he challenged the Parish Attorney's legal opinion, which he contends was done in a “calm” voice, using no inappropriate language. (Complaint ¶ 8). Heaney alleges that it was at this point that Roberts “rudely” interrupted him, and mischaracterized his “polite” disagreement as “berrating” the parish attorney. (Id. ). Roberts then had defendant Ronald Black, a police officer with the City of Gretna, remove Heaney from the council chambers. (Id. ). Heaney contends that Black shoved him to the floor and then fell on top of him before forcibly removing him from the building. (Id. ¶ 10).

Heaney filed the instant complaint on September 12, 2014. Heaney contends that Roberts and Black prevented him from exercising his First Amendment rights, and violated his Fourth Amendment rights by unlawfully seizing him. (Complaint ¶ 12). Heaney seeks damages and attorney's fees pursuant to 42 U.S.C. §§ 1983 and 1988, and punitive damages. Original jurisdiction is therefore grounded on 28 U.S.C. § 1331 (federal question).

Heaney also asserts claims under state law against Roberts and Black. Both defendants are sued for violations of the Louisiana Constitution, Article I, § 7. Heaney alleges that Black is also liable in tort. (Complaint ¶ 12). For these state law claims, Heaney joined Jefferson Parish and the City of Gretna, alleged to be the employers of Roberts and Black, respectively. (Id. ¶ 2). Heaney contends that Jefferson Parish is vicariously liable for the conduct of Roberts and that the City of Gretna is vicariously liable for the conduct of Black. (Id. 14).

All defendants now move for summary judgment on Heaney's claims.

II. DISCUSSION

Summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” when viewed in the light most favorable to the non-movant, “show that there is no genuine issue as to any material fact.” TIG Ins. Co. v. Sedgwick James , 276 F.3d 754, 759 (5th Cir.2002) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. (citing Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ). The court must draw all justifiable inferences in favor of the non-moving party. Id. (citing Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ). Once the moving party has initially shown “that there is an absence of evidence to support the non-moving party's cause,” Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the non-movant must come forward with “specific facts” showing a genuine factual issue for trial. Id. (citing Fed. R. Civ. P. 56(e) ; Matsushita Elec. Indus. Co. v. Zenith Radio , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial. Id. (citing SEC v. Recile , 10 F.3d 1093, 1097 (5th Cir.1993) ).

A. First Amendment/State Constitution Claims²

Roberts argues that he did not violate Heaney's First Amendment right to free speech because the council meeting was a limited public forum which gives a moderator in Roberts' position the discretion to place reasonable, viewpoint-neutral restrictions on speech. According to Roberts, he only restricted Heaney's speech and removed him from the meeting when his speech became repetitive, disruptive, and hostile. Thus, according to Roberts, Heaney cannot establish that he suffered a First Amendment violation. Roberts argues that if he did violate Heaney's First Amendment rights, he is entitled to qualified immunity. Roberts' contention with respect to qualified immunity is that his actions were objectively reasonable, and that on September 18, 2013, the law was not clearly established such that the actions he took constituted a First Amendment violation.

Heaney does not dispute Roberts' contention that the parish council meeting was a limited public forum, and as such Roberts, as chair of the meeting, could impose reasonable and viewpoint-neutral restrictions on the public speakers. But Heaney contends that Roberts cut him off and prevented him from speaking because he attempted to rebut the legal opinion given by the parish attorney, and to opine that parish council members were violating federal law by accepting campaign contributions from no-bid contractors. Heaney posits that the restrictions that Roberts put on his speech were clearly content-based because Roberts was trying to silence Heaney's message, and that Roberts' attempt to justify his actions by characterizing Heaney as hostile or disruptive is merely pretextual.

Public bodies may confine their meetings to specified subject matter and may hold nonpublic sessions to transact business. Fairchild v. Liberty Indep. Sch. Dist. , 597 F.3d 747, 759 (5th Cir.2010) (quoting City of Madison Joint Sch. Dist. v. Wisconsin Employ. Relations Comm'n, 429 U.S. 167, 175 n. 8, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) ). A city council meeting is generally recognized to be a “limited public forum,” which means that the government does not have to allow persons to engage in every type of speech. Id. (quoting Good News Club v. Milford Cent. Sch. , 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) ). In limited public forums, the government may impose reasonable, viewpoint-neutral restrictions on speech to preserve “the civility and decorum” necessary to further the purpose of the meeting. Ream v. City of Heath , No. 14–4338, 2015 WL 4393307, at *3 (N.D.Tex. July 16, 2015) (quoting Wenthold v. City of Farmers Branch , No. 11–748, 2012 WL 467325, at *7 (N.D.Tex. Feb. 14, 2012) ). Therefore, consistent with the First Amendment, the governing body may restrict speakers to the subject at hand, impose time limits on speakers, and prevent disruptions of the meeting. Wenthold , 2012 WL 467325, at *8 (citing Steinburg v. Chesterfield County Plan. Comm'n , 527 F.3d 377, 385 (4th Cir.2008) ). The government cannot under any circumstances, however, restrict speech based on viewpoint, and even viewpoint-neutral restrictions must be reasonable in light of the forum's purpose. Fairchild , 597 F.3d at 760. The determination of whether any restrictions on speech were viewpoint-based turns upon the facts of each case.³ Wenthold , 2012 WL 467325, at *8 (citing Content and Viewpoint Discrim ination: Malleable Terms Beget Malleable Doctrine , 13 Comm. L. & Pol'y 131, 180 (2008) ).

At the outset, the Court notes that there are no ostensible factual disputes regarding Heaney's and Roberts' conduct pertaining to the First Amendment claim because Defendants have provided the Court with the video (including audio) of the September 18, 2013 council meeting. That video clearly presents the exchange between Roberts and Heaney that culminated in Heaney's expulsion from the council meeting. The video is consistent for the most part with the factual allegations in Heaney's complaint. As the Court explained when it denied Roberts' Rule 12(b)(6) motion to dismiss, if Roberts acted because of the content of Heaney's speech as opposed to Heaney's allegedly disruptive conduct then Heaney's rights were violated. (Rec. Doc. 24, Ruling on Roberts' MTD at 4).

Roberts' contention that summary judgment is appropriate because Heaney's First Amendment rights were not violated as a matter of law turns on the same contention that Roberts' counsel made in support of the motion to dismiss, i.e. , that...