FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 23, 2020 _________________________________ Christopher M. Wolpert Clerk of Court ERIC S. CLARK,
Plaintiff - Appellant,
and
GENE HIRT,
Plaintiff,
v. No. 19-3234 (D.C. No. 2:17-CV-02279-HLT) UNIFIED SCHOOL DISTRICT NO. 287; (D. Kan.) JERRY TURNER,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, MATHESON, and EID, Circuit Judges. _________________________________
Eric S. Clark, proceeding pro se, appeals from the district court’s grant of
summary judgment to Unified School District No. 287 (“District 287”) and its
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Superintendent, Jerry Turner, on his 42 U.S.C. § 1983 claim alleging a First
Amendment violation. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
Mr. Clark and his co-plaintiff, Gene Hirt, attended District 287 school board
meetings in the early part of 2015. Mr. Hirt disrupted the proceedings by speaking to
the board from the audience (for which he was reprimanded), and he was heard to
call board members “sons of bitches” while he sat in the audience. He also had an
altercation with Mr. Turner after a meeting on June 8, 2015. On July 13, 2015,
Mr. Turner issued Mr. Hirt a letter (the July 2015 Letter) excluding him from all of
District 287’s property “for any reason or under any circumstance” because of his
“inability to express [him]self in a civil and socially acceptable manner.” R. Vol. I at
427. The exclusion lasted until June 14, 2017.
Mr. Clark became aware of the July 2015 letter, and Mr. Hirt’s exclusion from
school property, through a letter Mr. Hirt wrote to a newspaper. On August 12, 2015,
Mr. Clark spoke during the patron forum portion of a school board meeting (a time
set aside for attendees to address the board). He inquired about the board’s policy for
discipline of non-students, particularly with regard to the use of language during
debate. He asked whether he would be barred from school property if he described
Mr. Turner as a “nincompoop,” for example, and expressed his opinion that “anyone
who attempted to enforce that type of policy is a nincompoop and . . . that all those
who would support such a policy are ninnies.” Id. at 542-43. The defendants did not
take any action against Mr. Clark for his remarks at the August 12 meeting.
2 The next week, on August 19, Mr. Clark and Mr. Hirt attended an open house
at a District 287 elementary school. A sheriff’s deputy asked Mr. Hirt to leave,
which he did after he finished eating a hot dog. No one asked Mr. Clark to leave.
After that incident, however, Mr. Clark did not attend any school board meetings.
Mr. Hirt and Mr. Clark brought this lawsuit in May 2017. As relevant to this
appeal, Mr. Clark claimed that the July 2015 Letter chilled his exercise of his First
Amendment rights. He alleged that he self-censored his speech at the August 12
board meeting, and that he thereafter ceased attending school board meetings out of
concern that he would say something that violated the “socially acceptable manner”
policy embodied in the July 2015 Letter, causing him to be banned from District 287
property. The district court granted the defendants’ motion for summary judgment,
holding that Mr. Clark had failed to demonstrate an injury in fact to establish
standing to challenge the July 2015 Letter. The district court further rejected a
potential overbreadth argument challenging the underlying policies (as distinguished
from challenging the July 2015 Letter), holding that any such argument was waived
for failure to include it in the pretrial order.
ANALYSIS
We review the issue of Article III standing de novo. Benham v. Ozark
Materials River Rock, LLC, 885 F.3d 1267, 1272 (10th Cir. 2018). Summary
judgment is appropriate “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). “[W]e view the facts, and all reasonable inferences those facts
3 support, in the light most favorable to the nonmoving party.” iMatter Utah v. Njord,
774 F.3d 1258, 1262 (10th Cir. 2014) (internal quotation marks omitted). Because
Mr. Clark proceeds pro se, we construe his filings liberally, but we do not act as his
attorney. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005).
“[T]he core component of standing is an essential and unchanging part of the
case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992). The “irreducible constitutional minimum of standing
contains three elements”: (1) injury in fact, (2) a causal connection (traceability),
and (3) redressability. Id. at 560-61. It is Mr. Clark’s burden to demonstrate his
standing. See id. at 561.
Here, the relevant element is injury in fact, “the first and foremost of
standing’s three elements,” Spokeo, Inc v. Robins, 136 S. Ct. 1540, 1547 (2016)
(brackets and internal quotation marks omitted). “To establish injury in fact, a
plaintiff must show that he or she suffered ‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural
or hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560). “[I]n speech cases as
in others, courts must not intervene in the processes of government in the absence of
a sufficiently concrete and particularized injury.” Initiative & Referendum Inst. v.
Walker, 450 F.3d 1082, 1088 (10th Cir. 2006) (en banc) (internal quotation marks
omitted). “A concrete injury must be de facto; that is, it must actually exist. When
we have used the adjective concrete, we have meant to convey the usual meaning of
4 the term—real, and not abstract.” Spokeo, Inc, 136 S. Ct. at 1548 (citation and
internal quotation marks omitted). And “[f]or an injury to be particularized, it must
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 23, 2020 _________________________________ Christopher M. Wolpert Clerk of Court ERIC S. CLARK,
Plaintiff - Appellant,
and
GENE HIRT,
Plaintiff,
v. No. 19-3234 (D.C. No. 2:17-CV-02279-HLT) UNIFIED SCHOOL DISTRICT NO. 287; (D. Kan.) JERRY TURNER,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, MATHESON, and EID, Circuit Judges. _________________________________
Eric S. Clark, proceeding pro se, appeals from the district court’s grant of
summary judgment to Unified School District No. 287 (“District 287”) and its
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Superintendent, Jerry Turner, on his 42 U.S.C. § 1983 claim alleging a First
Amendment violation. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
Mr. Clark and his co-plaintiff, Gene Hirt, attended District 287 school board
meetings in the early part of 2015. Mr. Hirt disrupted the proceedings by speaking to
the board from the audience (for which he was reprimanded), and he was heard to
call board members “sons of bitches” while he sat in the audience. He also had an
altercation with Mr. Turner after a meeting on June 8, 2015. On July 13, 2015,
Mr. Turner issued Mr. Hirt a letter (the July 2015 Letter) excluding him from all of
District 287’s property “for any reason or under any circumstance” because of his
“inability to express [him]self in a civil and socially acceptable manner.” R. Vol. I at
427. The exclusion lasted until June 14, 2017.
Mr. Clark became aware of the July 2015 letter, and Mr. Hirt’s exclusion from
school property, through a letter Mr. Hirt wrote to a newspaper. On August 12, 2015,
Mr. Clark spoke during the patron forum portion of a school board meeting (a time
set aside for attendees to address the board). He inquired about the board’s policy for
discipline of non-students, particularly with regard to the use of language during
debate. He asked whether he would be barred from school property if he described
Mr. Turner as a “nincompoop,” for example, and expressed his opinion that “anyone
who attempted to enforce that type of policy is a nincompoop and . . . that all those
who would support such a policy are ninnies.” Id. at 542-43. The defendants did not
take any action against Mr. Clark for his remarks at the August 12 meeting.
2 The next week, on August 19, Mr. Clark and Mr. Hirt attended an open house
at a District 287 elementary school. A sheriff’s deputy asked Mr. Hirt to leave,
which he did after he finished eating a hot dog. No one asked Mr. Clark to leave.
After that incident, however, Mr. Clark did not attend any school board meetings.
Mr. Hirt and Mr. Clark brought this lawsuit in May 2017. As relevant to this
appeal, Mr. Clark claimed that the July 2015 Letter chilled his exercise of his First
Amendment rights. He alleged that he self-censored his speech at the August 12
board meeting, and that he thereafter ceased attending school board meetings out of
concern that he would say something that violated the “socially acceptable manner”
policy embodied in the July 2015 Letter, causing him to be banned from District 287
property. The district court granted the defendants’ motion for summary judgment,
holding that Mr. Clark had failed to demonstrate an injury in fact to establish
standing to challenge the July 2015 Letter. The district court further rejected a
potential overbreadth argument challenging the underlying policies (as distinguished
from challenging the July 2015 Letter), holding that any such argument was waived
for failure to include it in the pretrial order.
ANALYSIS
We review the issue of Article III standing de novo. Benham v. Ozark
Materials River Rock, LLC, 885 F.3d 1267, 1272 (10th Cir. 2018). Summary
judgment is appropriate “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). “[W]e view the facts, and all reasonable inferences those facts
3 support, in the light most favorable to the nonmoving party.” iMatter Utah v. Njord,
774 F.3d 1258, 1262 (10th Cir. 2014) (internal quotation marks omitted). Because
Mr. Clark proceeds pro se, we construe his filings liberally, but we do not act as his
attorney. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005).
“[T]he core component of standing is an essential and unchanging part of the
case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992). The “irreducible constitutional minimum of standing
contains three elements”: (1) injury in fact, (2) a causal connection (traceability),
and (3) redressability. Id. at 560-61. It is Mr. Clark’s burden to demonstrate his
standing. See id. at 561.
Here, the relevant element is injury in fact, “the first and foremost of
standing’s three elements,” Spokeo, Inc v. Robins, 136 S. Ct. 1540, 1547 (2016)
(brackets and internal quotation marks omitted). “To establish injury in fact, a
plaintiff must show that he or she suffered ‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural
or hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560). “[I]n speech cases as
in others, courts must not intervene in the processes of government in the absence of
a sufficiently concrete and particularized injury.” Initiative & Referendum Inst. v.
Walker, 450 F.3d 1082, 1088 (10th Cir. 2006) (en banc) (internal quotation marks
omitted). “A concrete injury must be de facto; that is, it must actually exist. When
we have used the adjective concrete, we have meant to convey the usual meaning of
4 the term—real, and not abstract.” Spokeo, Inc, 136 S. Ct. at 1548 (citation and
internal quotation marks omitted). And “[f]or an injury to be particularized, it must
affect the plaintiff in a personal and individual way.” Id. (internal quotation marks
omitted).
Although the July 2015 Letter was directed to Mr. Hirt, not Mr. Clark,
Mr. Clark contends that it caused him to censor himself at the August 12 school
board meeting and thereafter chilled him from attending school board meetings
altogether. “This Court has recognized that a chilling effect on the exercise of a
plaintiff’s First Amendment rights may amount to a judicially cognizable injury in
fact, as long as it arises from an objectively justified fear of real consequences.”
Initiative & Referendum Inst., 450 F.3d at 1088 (brackets and internal quotation
marks omitted). “Yet plaintiffs must do more than merely allege a subjective chill.
If all it took to summon the jurisdiction of the federal courts were a bare assertion
that, as a result of government action, one is discouraged from speaking, there would
be little left of the Article III threshold in First Amendment cases.” Id. at 1089
(citation and internal quotation marks omitted).
It is not clear that Mr. Clark has established even a subjective chill from the
July 2015 Letter, given that he attended and spoke during the patron forum at the
August 12 board meeting. In any event, however, the record does not support “an
objectively justified fear of real consequences” to Mr. Clark from speaking at District
287 board meetings. Id. at 1088 (internal quotation marks omitted). When Mr. Clark
5 was asked at his deposition to describe how the July 2015 Letter affected his speech,
he testified:
[B]ecause I knew that they could ban or they planned to based on this policy of this banned speech that’s offensive, I knew that if I went to another meeting and called the Superintendent a nincompoop again or called the Board members ninnies that they would use that as an excuse to ban me from the meetings. Even though it may be offensive speech, it’s protected under the First Amendment. Okay. I felt that like if I go to another meeting, I am definitely going to be using some words like that, trust me, and when I do, it’s more than likely based upon the evidence before me that they are going to ban me. Okay. They ban me, I know because of the way I’m built and the way I’m brought up I am going to challenge that ban and I know that then I am going to be cited with trespass and put in jail for some period of time and right now, that’s -- to be put in jail for some period of time right now, to me, is going to be a big detriment. So that prevents me from going in there right now and saying what I want to say to them[.] R. Vol. I at 624. But the defendants took no action against Mr. Clark for his remarks
at the August 12 board meeting. They did not require him to leave the August 19
open house, and they did not preclude him from attending any subsequent school
board meetings or any other District 287 event. Even Mr. Hirt was not arrested and
jailed for trespass at the open house; he simply was asked to leave, and he even was
allowed to finish eating his hot dog first. Mr. Clark’s feared harms simply pile
speculation upon speculation. We are not persuaded by his reliance on Susan B.
Anthony List v. Driehaus, 573 U.S. 149 (2014), because these circumstances do not
equal the credible threat of enforcement that was found to exist in that case.
Mr. Clark’s failure to establish injury in fact also disposes of his contention
that he did not waive an overbreadth challenge to the policy or policies underlying
the July 2015 Letter. Even if the district court erred in holding the claim waived,
6 Mr. Clark still must establish injury in fact to have standing to bring an overbreadth
claim. See Winsness v. Yocom, 433 F.3d 727, 734 (10th Cir. 2006); D.L.S. v. Utah,
374 F.3d 971, 976 (10th Cir. 2004).
CONCLUSION
The district court’s judgment is affirmed.
Entered for the Court
Mary Beck Briscoe Circuit Judge