IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

STUDENTS FOR LIFE USA, etc., )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 14-0157-WS-B

 )

TONY G. WALDROP, etc., et al., )

 )

Defendants. )

ORDER

This matter is before the Court on the defendants’ motion to dismiss. (Doc. 

31). The parties have filed briefs in support of their respective positions, (Docs.

31, 41, 43), and the motion is ripe for resolution. After careful consideration, the 

Court concludes that the motion is due to be granted in part and denied in part.

BACKGROUND

According to the amended complaint, (Doc. 29), the plaintiff is a student 

organization at the University of South Alabama (“the University”). The plaintiff

seeks to promote its pro-life message through flyers, signs, peaceful 

demonstrations and other means. In October 2013 and again in February 2014, the 

plaintiff sought permission to place a “cemetery of innocents” at various campus 

locations, including an area between an academic building (“Shelby Hall”) and 

two public roads (“Old Shell Road” and “University Boulevard”). Permission to 

use such locations was denied by University officials. The plaintiff ultimately 

utilized an area around the student center (“the Speech Zone”) that the 

University’s policy (“the First Policy”) identified as the only campus location 

permitted to be used for student speech. In August 2014, the University allegedly 

adopted another policy (“the Second Policy”), which expands the locations that 

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can be used for student speech but which continues to prohibit such speech within

the campus perimeter (“the Perimeter”), which includes most areas between the 

street side of campus buildings and the sidewalks paralleling Old Shell Road and 

University Boulevard. (Id. at 4, 11, 13-20). 

The defendants are the University’s president, Tony Waldrop; its vicepresident for student affairs, John Smith; its assistant vice-president for student 

affairs and dean of the plaintiff, Michael Mitchell; and the dean of its college of 

engineering, John Steadman. All four are sued in both their official and their 

individual capacities. (Doc. 29 at 1).

Count One of the amended complaint alleges that the First and Second 

Policies violate the plaintiff’s First Amendment rights of free speech. Counts Two 

and Three allege that the First and Second Policies violate the plaintiff’s due 

process and equal protection rights, respectively. The amended complaint seeks as 

relief: a declaration that the Policies violate the plaintiff’s constitutional rights; an 

injunction against enforcement of the Policies and associated practices; an award 

of nominal damages; and attorney’s fees and costs. (Doc. 29 at 26-38).

The defendants seek the dismissal of: (1) all claims regarding the First 

Policy; (2) all claims against them in their individual capacities; and (3) all asapplied challenges to the Second Policy. (Doc. 31 at 13).

DISCUSSION

“There is no burden upon the district court to distill every potential 

argument that could be made based upon the materials before it on summary 

judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 

1995). The Court’s review on this motion to dismiss is similarly limited to those 

arguments the parties have expressly advanced. E.g., Jurich v. Compass Marine, 

Inc., 908 F. Supp. 2d 1225, 1228 (S.D. Ala. 2012). Moreover, “a passing 

reference to an issue in a brief [is] insufficient to properly raise that issue,” 

Transamerica Leasing, Inc. v. Institute of London Underwriters, 430 F.3d 1326, 

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1331 n.4 (11th Cir. 2005), and the Court will not supply legal or analytical support 

the parties have declined to offer themselves.

I. First Policy.

The defendants argue that the plaintiff’s challenge to the First Policy is 

moot and that it violates the Eleventh Amendment.

A. Mootness.

The defendants argue that the plaintiff’s challenge to the First Policy has 

been mooted by adoption of the Second Policy. (Doc. 31 at 9-11). “[A] case is 

moot when it no longer presents a live controversy with respect to which the court 

can give meaningful relief.” Troiano v. Supervisor of Elections, 382 F.3d 1276, 

1282 (11th Cir. 2004) (internal quotes omitted). If a case is or becomes moot, 

“dismissal is required because mootness is jurisdictional.” Id. (internal quotes 

omitted). “Whether a case is moot is a question of law ....” Id.

Mootness may occur when the defendant voluntarily ceases the challenged 

conduct. However, “[a] defendant claiming that its voluntary compliance moots a 

case bears the formidable burden of showing that it is absolutely clear the 

allegedly wrongful behavior could not reasonably be expected to recur.” Doe v. 

Wooten, 747 F.3d 1317, 1322 (11th Cir. 2014) (internal quotes omitted). The 

defendants here are government actors, but “[t]he Supreme Court has applied this 

same standard in cases involving government actors.” Id. 

Unlike a private defendant, however, a government actor can raise a 

“rebuttable presumption that the objectionable behavior will not recur.” Troiano, 

382 F.3d at 1283 (emphasis in original).1 Thus, “a challenge to a government 

policy that has been unambiguously terminated will be moot in the absence of 

 1 See also Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir. 

2007) (confirming that “private citizens are not entitled to this legal presumption”). 

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some reasonable basis to believe that the policy will be reinstated if the suit is 

terminated.” Id. at 1285. To obtain the benefit of the rebuttable presumption, the 

government defendant bears the “initial burden” to show that the offending policy 

has been unambiguously terminated. Doe, 747 F.3d at 1323.

“In general, the repeal of a challenged statute is one of those events that 

makes it absolutely clear that the allegedly wrongful behavior ... could not 

reasonably be expected to recur.” Harrell v. Florida Bar, 608 F.3d 1241, 1265 

(11th Cir. 2010) (internal quotes omitted). However, the unambiguous termination 

of a challenged policy can be established, and the consequent rebuttable 

presumption arise, “[e]ven short of so weighty a legislative act.” Id. at 1266. The 

“repea[l] or amend[ment] [of] a challenged statute or policy [is] often a clear 

indicator of unambiguous termination.” Doe, 747 F.3d at 1322.

The defendants have offered no affidavit for the proposition that the First 

Policy has been repealed or otherwise unambiguously terminated. They have, 

however, submitted uncontroverted evidence that the First Policy, which appeared 

in the 2013-2014 student handbook,2 was replaced by the Second Policy in the 

2014-2015 student handbook. (Doc. 29-10; Doc. 31 at 3 n.5 (providing online 

citation)). The student handbook is a joint publication of the student government 

association and the University, (Doc. 29-4 at 3), and it contains “the most current 

information at the time of publication.” (Id.). Moreover, the Second Policy 

covers the same issues concerning expressive activity as the First Policy. The 

plaintiff denies that the Second Policy has been adopted and the First Policy

“repealed,” (Doc. 41 at 6), but it offers no explanation how, under the 

circumstances just described, the First Policy could be anything other than 

terminated. Because it is clear that the Second Policy is now in force, and because 

it is clear that the First Policy is not, and could not be, simultaneously in force, the 

Court finds that the First Policy has been unambiguously terminated. Whether it 

 2 (Doc. 29-4 at 7; Doc. 29-5 at 6).

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was terminated by formal repeal (which is unknown) or by supersession (which is 

obvious) is irrelevant.3 

Because the defendants have met their initial burden of showing that the 

First Policy has been unambiguously terminated, the plaintiff’s challenge to that 

policy is moot unless there is “some reasonable basis to believe that the policy will 

be reinstated if the suit is terminated.” Troiano, 382 F.3d at 1285. “Mere 

speculation that the [defendant] will return to its previous ways is no substitute for 

concrete evidence of secret intentions.” National Advertising Co. v. City of 

Miami, 402 F.3d 1329, 1334 (11th Cir. 2005). 

“[W]here the circumstances surrounding the cessation suggest that the 

defendant is attempting to manipulate the court’s jurisdiction to insulate a 

favorable decision from review, [citations omitted], courts will not deem a 

controversy moot.” Harrell, 608 F.3d at 1266 (internal quotes omitted). “More 

generally, the timing and content of a voluntary decision to cease a challenged 

activity are critical in determining the motive for the cessation and therefore 

whether there is any reasonable expectation ... that the alleged violation will 

recur.” Id. (internal quotes omitted). “As for timing, a defendant’s cessation 

before receiving notice of a legal challenge weighs in favor of mootness, [citation 

omitted], while cessation that occurs late in the game will make a court more 

skeptical of voluntary changes that have been made.” Id. (internal quotes 

omitted). “With respect to content, we look for a well-reasoned justification for 

 3 “[T]he timing and content of the decision are also relevant in assessing whether 

the defendant’s ‘termination’ of the challenged conduct is sufficiently ‘unambiguous’ to 

warrant application of the Troiano presumption ....” Harrell, 608 F.3d at 1266. 

“Timing” looks to when the cessation occurred vis-à-vis the plaintiff’s legal challenge, 

while “content” looks for “a well-reasoned justification for the cessation.” Id. The 

plaintiff does not ask the Court to consider timing and content in this context, and it 

appears these circumstances are chiefly, if not exclusively, relevant when there is not, as 

here, a facially obvious termination of a formal policy. See, e.g., id. at 1252, 1267-68 

(considering the timing and content of a board’s unexplained decision to reverse a 

committee’s determination that the plaintiff’s legal advertisement violated bar rules, 

which might have been only a decision not to enforce the rules against the plaintiff in the 

particular case). 

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the cessation as evidence that the ceasing party intends to hold steady in its revised 

... course.” Id.; accord Rich v. Secretary, Florida Department of Corrections, 716 

F.3d 525, 532 (11th Cir. 2013) (“[W]e look to whether the change in government 

policy or conduct appears to be the result of substantial deliberation.”) (internal 

quotes omitted). In addition, “we ask whether the government has consistently 

applied a new policy or adhered to a new course of conduct.” Id. (internal quotes 

omitted). Finally, it may be significant whether the defendant “promised not to 

resume the prior practice.” Id. While “[t]hese factors are not exhaustive,” Doe, 

747 F.3d at 1323, the plaintiff relies on them and no others to establish a 

reasonable basis to believe the First Policy will be reinstated if the action is 

dismissed. (Doc. 41 at 16-17). 

As for timing, the Second Policy was adopted on or about August 8, 2014, 

approximately four months after suit was filed and the University’s counsel 

notified of the suit. (Doc. 22; Doc. 29, ¶ 153). The plaintiff stresses that the First 

Policy was in effect when the defendants “receiv[ed] notice of a legal challenge,” 

Harrell, 608 F.3d at 1266, but it ignores the promptness with which the defendants 

responded to that notice by replacing the First Policy with the Second. The 

change was not made “late in the game,” id., but at a time when all that had 

occurred in this litigation was extended settlement negotiations (instigated by the 

plaintiff contemporaneously with filing the complaint and continued by the 

plaintiff throughout) and service of process (which occurred barely three weeks 

before the Second Policy was adopted). (Docs. 22, 23). This timing indicates a 

genuine effort to resolve the dispute informally and an efficient development of a 

comprehensive policy covering a complex subject; it does not suggest a subterfuge 

to deprive the Court of jurisdiction so that the defendants can then replace the 

Second Policy with the First Policy.

As for content, the plaintiff itself, in its amended complaint, articulates the 

defendants’ “well-reasoned justification” for replacing the First Policy: 

“Defendant Waldrop instructed the Defendants to change and alter the First Policy 

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to comply with constitutional mandates ....” (Doc. 29, ¶ 29). There is no 

suggestion here that the defendants replaced the First Policy with the crass motive 

of gaming the system, obtaining dismissal, and then reverting to old ways; instead, 

the plaintiff credits the defendants with the honorable motive of upholding the

Constitution.

4

 

The plaintiff denies that the defendants adopted the Second Policy as a 

“result of substantial deliberation,” (Doc. 41 at 17), but its own allegations again 

belie such a contention. According to the amended complaint, the Second Policy 

was the result of a “process,” one in which three of the defendants were personally 

involved. (Doc. 29, ¶¶ 28, 39, 56). In addition, the length and detail of the 

Second Policy, and the multiple changes it makes from the First Policy, reflect that 

some degree of care attended its creation. The plaintiff insists the Second Policy 

“materialized like a bolt out of the blue,” but the case on which it relies for this 

colorful imagery involved a policy that was unwritten, unannounced and unknown 

until the day it was enforced against the plaintiffs. OSU Student Alliance v. Ray, 

699 F.3d 1053, 1064 (9th Cir. 2012). Nothing remotely of the sort is in play here.

As for consistency of application, the plaintiff correctly notes that the 

Second Policy has been in force for only a few months. But the plaintiff does not 

explain how this circumstance indicates that the defendants are itching to replace 

the Second Policy with the First. All policies have a birthdate, and the mere fact 

that a policy is new cannot of itself make it reasonable to believe the policy is 

already targeted for elimination. There is no evidence the Second Policy has been 

applied, but there is no evidence that, since August 2014, there has been any 

occasion to apply it, and certainly no indication that the First Policy has been 

applied in lieu of the Second.

 4 Statements in the pleadings may constitute judicial admissions. See, e.g., 

Nichols v. Barwick, 792 F.2d 1520, 1523 (11th Cir. 1986); Kenneth W. Graham, Jr. & 

Michael H. Graham, 30B Federal Practice & Procedure § 7026 (online ed. 2014). 

Admissions or not, the plaintiff’s allegations flatly contradict its contention that there is a 

reasonable basis to believe the defendants will reinstate the First Policy. 

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The plaintiff complains that the defendants “have never promised not to 

resume the First Policy.” (Doc. 41 at 17). The defendants state in brief that the 

University “has no intention of reinstating the First Policy,” (Doc. 31 at 11), but 

the plaintiff scoffs that “[s]tatements by counsel in briefs are not evidence.” (Doc. 

41 at 16 n.5). True enough, but the Eleventh Circuit, in ruling that a challenge to a 

sign ordinance was moot, expressly relied on statements by counsel, orally and in 

brief, denying the defendant’s intention to resurrect the old ordinance after it was 

significantly amended. Coral Springs Street Systems, Inc. v. City of Sunrise, 371 

F.3d 1320, 1332-33 (11th Cir. 2004). The plaintiff has not explained why such an 

assurance is less adequate here than it was in Coral Springs. 

The allegations of the amended complaint once again strengthen the 

inference that the defendants will not revert to the First Policy. The plaintiff

insists that the Second Policy can be changed “only with the prior approval of 

Defendant Smith and the Defendant Waldrop.” (Doc. 29, ¶ 37). The plaintiff does 

not explain why Waldrop and Smith – who ordered that the First Policy be brought 

into compliance with the Constitution, (id., ¶¶ 29, 40) – can reasonably be 

expected to approve the reinstatement of the allegedly unconstitutional First 

Policy.

The plaintiff cites four cases as support for the proposition that there is a 

reasonable basis to believe the defendants will reinstate the First Policy if its legal 

challenge is ruled moot. (Doc. 41 at 16-17 & 16 n.6). The plaintiff finds Rich

significant because the change occurred after suit was filed. The defendant in 

Rich, however, waited over two years after suit was filed and did not act until it 

was also sued by the Department of Justice and until just before appellate 

argument – timing that clearly qualifies as “late in the game.” 716 F.3d at 532. 

The plaintiff relies on National Association of Boards of Pharmacy v. Board of 

Regents, 633 F.3d 1297 (11th Cir. 2011), as showing a lack of substantial 

deliberation, but in that case there was no written policy and no justification 

offered for the change, just an unexplained verbal decision to cancel a board 

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review course. Id. at 1312. The plaintiff cites Jager v. Douglas County School 

District, 862 F.2d 824 (11th Cir. 1989), as rejecting mootness when the change was 

made under imminent threat of a lawsuit, but the focus of the Jager Court’s 

mootness analysis was not timing but rather the defendants’ failure to formalize 

the change as policy (instead leaving implementation of the change up to 

individual principals), plus their failure to promise not to engage in the former 

practice (as the absence of a formal policy threatened), plus their continued

insistence on appeal that the former practice should be declared constitutional. Id. 

at 833-34. The plaintiff cites Rich a second time, for the defendant’s failure to 

promise not to resume its prior practice – a circumstance that, as noted previously,

is not presented here. Moreover, unlike here, the defendant in Rich also changed 

course “late in the game” and continued to insist on appeal that its prior conduct 

be ruled constitutional. 716 F.3d at 532. Finally, the plaintiff compares the 

newness of the Second Policy with Jews for Jesus, Inc. v. Hillsborough County 

Aviation Authority, 162 F.3d 627 (11th Cir. 1998), where the Court noted that the 

evidence suggested the new policy had been consistently applied for three years. 

Id. at 629. The Eleventh Circuit, however, did not indicate that the new policy 

must be applied consistently for any particular length of time (or at all) as a 

predicate to a finding of mootness.

The Court has studied all the Eleventh Circuit cases cited by the parties and 

many more besides. None involves a fact pattern supporting the conclusion that 

the circumstances of this case could, much less must, establish a reasonable basis 

for believing the defendants will reinstate the First Policy if the instant challenge 

is declared moot. For the reasons set forth above, the Court finds no reasonable 

basis to believe the defendants will do so.

The plaintiff argues that its challenge to the First Policy is not moot 

because it is capable of repetition yet evading review. (Doc. 41 at 8). However, 

“[a] holding that there is no reasonable expectation that the conduct will recur also 

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precludes application of the ‘capable of repetition, yet evading review’ doctrine.” 

Jews for Jesus, 162 F.3d at 629 n.4.

The defendants argue that “all claims relating to the First Policy” are due to 

be dismissed as moot. (Doc. 31 at 9). Elsewhere, however, they identify only the 

requests for declaratory and injunctive relief as moot. (Id. at 11). The plaintiff

concedes that mootness would eliminate its requests for equitable relief in 

connection with the First Policy, but it argues that its request for damages for 

violations of its constitutional rights visited by the First Policy is not moot. (Doc. 

41 at 16 n.4, 17). The plaintiff is correct. “Because [the plaintiff] has requested 

damages, however, the changes made to the ordinance do not make this case 

moot.” Granite State Outdoor Advertising, Inc., v. City of Clearwater, 351 F.3d 

1112, 1119 (11th Cir. 2003); accord KH Outdoor, L.L.C. v. Clay County, 482 F.3d 

1299, 1303 (11th Cir. 2007). 

B. Eleventh Amendment.

The defendants claim the protection of the Eleventh Amendment with 

respect to all claims against them for declaratory and injunctive relief in their 

official capacities related to the First Policy. They acknowledge that the Eleventh 

Amendment “does not generally prohibit suits seeking only prospective injunctive 

or declaratory relief,” Summit Medical Associates, P.C. v. Pryor, 180 F.3d 1326, 

1337 (11th Cir. 1999), but they note that it does prohibit declarations that past 

conduct violated the plaintiff’s rights. The defendants assert that the amended 

complaint as to the First Policy seeks equitable relief only as to historical wrongs 

and that this is barred by the Eleventh Amendment. (Doc. 31 at 4-5).5 

The plaintiff responds that it is also seeking prospective declaratory and 

injunctive relief with regard to the First Policy. (Doc. 41 at 5). The amended 

 5 Neither the defendants nor the plaintiff addresses whether federal suits against 

the University are subject to the Eleventh Amendment; the Court assumes for argument 

that they are. 

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complaint, which asks for a declaration that the defendants “are violating [The 

plaintiff’ constitutional rights] under the First Policy” and for “an injunction 

against Defendants’ First Policy,” (Doc. 29, ¶¶ 250, 265, 291) confirms the 

plaintiff’s position. The prayer for relief, which requests a declaration that the 

“First Policy violates Plaintiff’s rights” and an injunction against “enforcing the 

First Policy and associated practices,” (id. at 37-38, ¶¶ (A), (B), (E)), does so as 

well. The defendants’ unexplained assertion that the amended complaint does not 

seek prospective relief as to the First Policy is not well taken. The Eleventh 

Amendment precludes the plaintiff from obtaining retrospective declaratory or 

injunctive relief, but it does not bar the plaintiff’ explicit request for prospective 

declaratory and injunctive relief as to the First Policy. 

In their reply brief, the defendants argue that, even though the amended 

complaint does seek prospective relief, it does not allege “any ongoing or live 

harm for which prospective relief is needed from the First Policy.” (Doc. 43 at 2-

3). This is a new argument, not asserted in the defendants’ principal brief.6 

“District courts, including this one, ordinarily do not consider arguments raised for 

the first time on reply.” Gross-Jones v. Mercy Medical, 874 F. Supp. 2d 1319, 

1330 n.8 (S.D. Ala. 2012) (citing cases and explaining the underlying rationale). 

The defendants identify no reason to depart from this well-established rule, and

the Court declines to do so.

 6 The argument in the defendants’ principal brief was that the amended complaint 

does not seek prospective relief – an issue that implicates the Eleventh Amendment and 

in support of which the defendants cited only those paragraphs of the amended complaint 

that articulate the plaintiff’s requested relief. (Doc. 31 at 5). The argument in the 

defendants’ reply brief is that there is no factual basis in the amended complaint for an 

award of prospective relief – an issue that does not implicate the Eleventh Amendment 

and which was not fairly raised or even hinted at in their principal brief. 

 

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II. Nominal Damages.

The plaintiff seeks an award of nominal damages against each of the 

defendants in their individual capacities. (Doc. 29, ¶¶ 248, 263, 289). The 

defendants argue that the state of Alabama is the real party in interest and that they 

are protected by qualified immunity.

A. Real Party in Interest.

“The Eleventh Amendment bars a suit against state officials when the state 

is the real, substantial party in interest.” Pennhurst State School & Hospital v. 

Halderman, 465 U.S. 89, 101 (1984) (internal quotes omitted). In determining 

whether the state is the real party in interest, “[t]he general rule is that a suit is 

against the sovereign if the judgment sought would expend itself on the public 

treasury or domain ... or if the effect of the judgment would be to restrain the 

Government from acting, or to compel it to act.” Harbert International, Inc. v. 

James, 157 F.3d 1271, 1277 n.3 (11th Cir. 1998) (internal quotes omitted). The 

defendants, quoting Pennhurst and Harbert for these propositions, assert that the 

state is the real party in interest because the amended complaint does not allege 

that they violated policy but only that they developed and enforced policy. (Doc. 

31 at 5-7). 

The defendants’ argument is something of a non sequitur, since it does not 

address what they concede are the determinative questions: (1) whether the 

judgment (if damages) would be paid by the state, and (2) whether the judgment 

(if injunctive) would require the state to do or not do something. Because the 

defendants challenge only the demand for damages, the second question is not on 

the table.7 The first question asks whether “the judgment must, under all 

 7 In their reply brief, the defendants reference the amended complaint’s request 

for declaratory and injunctive relief, and they insist that “[t]his fits squarely into the rule” 

expressed in Harbert. (Doc. 43 at 7). And so it does, but the issue, as framed by the 

defendants, is limited to an attack on the plaintiff’s “individual capacity claims for 

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circumstances, be paid out of state funds.” Jackson v. Georgia Department of 

Transportation, 16 F.3d 1575, 1577 (11th Cir. 1994) (emphasis in original) 

(internal quotes omitted). Here, and as the defendants acknowledge, (Doc. 31 at 4 

n.6), damages are sought against the defendants explicitly and exclusively in their 

individual capacities. “The essence of an individual capacity suit is that the 

plaintiff is seeking to recover from the individual defendant, who is personally 

liable for the judgment.” Jackson, 16 F.3d at 1577. The defendants offer no 

explanation how damages sought only from them personally could under no 

circumstances be paid with non-state funds. That silence is fatal to their argument. 

B. Qualified Immunity. 

“[G]overnment officials performing discretionary functions generally are 

shielded from liability for civil damages insofar as their conduct does not violate 

clearly established statutory or constitutional rights of which a reasonable person 

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “[T]he 

burden is first on the defendant to establish that the allegedly unconstitutional 

conduct occurred while he was acting within the scope of his discretionary 

authority.” Harbert, 157 F.3d at 1281. The burden then shifts to the plaintiff to 

show that the defendant’s conduct “violated a clearly established statutory or 

constitutional right.” Grayden v. Rhodes, 345 F.3d 1225, 1231 (11th Cir. 2003). 

1. Discretionary authority.

“[T]he burden is first on the defendant to establish that the allegedly 

unconstitutional conduct occurred while he was acting within the scope of his 

discretionary authority. ... If, and only if, the defendant does that will the burden 

shift to the plaintiff to establish that the defendant violated clearly established 

law.” Harbert, 157 F.3d at 1281 (emphasis added). The reason is that an official 

 

nominal damages.” (Doc. 31 at 5). The defendants’ reply brief again expresses the issue 

in identical language. (Doc. 43 at 7).

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acting outside the scope of his discretionary authority “ceases to act as a 

government official and instead acts on his own behalf,” so that “the policies 

underlying the doctrine of qualified immunity no longer support its application.” 

Id.

For purposes of federal qualified immunity analysis, a defendant acts 

within his discretionary authority when “his actions were undertaken pursuant to 

the performance of his duties and within the scope of his authority.” Rich v. 

Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988) (internal quotes omitted). For this 

inquiry, “[w]e ask whether the government employee was (a) performing a 

legitimate job-related function (that is, pursuing a job-related goal), (b) through 

means that were within his power to utilize.” Holloman ex rel. Holloman v. 

Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). 

The first prong of this test requires that the defendant “have been 

performing a function that, but for the alleged unconstitutional infirmity, would 

have fallen within his legitimate job description.” Holloman, 370 F.3d at 1266 

(emphasis omitted). “The inquiry is not whether it was within the defendant’s 

authority to commit the allegedly illegal act,” but “whether the act complained of, 

if done for a proper purpose, would be within, or reasonably related to, the outer 

perimeter of an official’s discretionary duties.” Harbert, 157 F.3d at 1282 

(internal quotes omitted).8 

As for the second prong, “[e]ach government employee is given only a 

certain ‘arsenal’ of powers with which to accomplish her goals.” Holloman, 370 

F.3d at 1267. “Pursuing a job-related goal through means that fall outside the 

range of discretion that comes with an employee’s job is not protected by qualified 

immunity.” Id. 

 8 For example, the issue is not whether a marshal has the authority to deliver a 

prisoner into unconstitutional conditions but whether he has the authority to transport and 

deliver prisoners. Harbert, 157 F.3d at 1282 (describing Jordan v. Doe, 38 F.3d 1559, 

1566 (11th Cir. 1994)).

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The quantum and quality of evidence necessary to meet the defendant’s 

burden “vary in proportion to the degree of discretion inherent in the defendant’s 

office,” Harbert, 157 F.3d at 1282 (internal quotes omitted), but ordinarily “there 

must be a showing by competent summary judgment materials of objective 

circumstances that would compel th[e] conclusion” that the defendant acted within 

his discretionary authority. Id. (internal quotes omitted). Certainly “[a] bald 

assertion that the acts were taken pursuant to the performance of duties and within 

the scope of duties will not suffice” to meet the defendant’s burden of proof. Id. 

(internal quotes omitted). However, when it is “undisputed ... that the 

[defendants] were acting within their discretionary authority,” the Court can deem 

that element of qualified immunity established. E.g., Lewis v. City of West Palm 

Beach, 561 F.3d 1288, 1291 (11th Cir. 2009). The plaintiff does not dispute the 

defendants’ contention that they acted within their discretionary authority, and the 

allegations of the amended complaint affirmatively establish this element. 

The amended complaint alleges that Waldrop participated in the process to 

create the First and Second Policies; gave final approval for their adoption;

directed that changes be made to the First Policy; failed to direct that changes be 

made to the Second Policy; delegated authority to enforce the First Policy to Smith 

and Mitchell; and permitted other student organizations to hang sheet signs on 

campus. (Doc. 29, ¶¶ 27-30, 91, 96). The amended complaint also alleges that 

Waldrop is responsible for enacting and enforcing all University policies 

concerning student free speech, including the First and Second Policies; that he 

must approve in advance all changes to those policies; and that he has final 

authority to review, approve or reject student requests to use campus facilities and 

grounds, including the use of sheet signs. (Id., ¶¶ 23-26, 31, 90, 102). The 

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plaintiff thus admits that all of Waldrop’s challenged acts and omissions fell 

within his discretionary authority.9

The amended complaint alleges that Smith participated in the process to 

create the First and Second Policies; gave approval for their adoption; directed that 

changes be made to the First Policy; failed to direct that changes be made to the 

Second Policy; and permitted other student organizations to hang sheet signs on 

campus. (Doc. 29, ¶¶ 38-41, 96). The amended complaint also alleges that Smith 

is responsible for enacting and enforcing University policies, including the First 

and Second Policies; that he must approve in advance all changes to those 

policies; that he has authority to coordinate and approve student solicitation and 

speech requests, including the use of sheet signs; and that he has authority under 

the Second Policy to define the boundaries of the Perimeter. (Id., ¶¶ 34-37, 42-43, 

102, 168). The plaintiff thus admits that all of Smith’s challenged acts and 

omissions fell within his discretionary authority.

The amended complaint alleges that Mitchell participated in the process to 

create the First and Second Policies; gave approval for their adoption; failed to 

direct that changes be made to the Second Policy; enforced the First Policy against 

The plaintiff regarding its distribution of pro-life information and hosting of a 

cemetery of innocents by restricting the plaintiff to the Speech Zone; and 

permitted other student organizations to hang sheet signs on campus. (Doc. 29, ¶¶ 

53, 55-57, 96, 114, 130-32, 145, 231). The amended complaint also alleges that 

Mitchell is responsible for enacting and enforcing University policies, including 

the First and Second Policies; that he is responsible for reviewing and giving final 

approval or disapproval to student requests to engage in expressive speech, 

including the use of sheet signs; that he was responsible for regulating the Speech 

Zone under the First Policy; and that he is responsible for regulating the Perimeter 

 9 Omissions as well as acts are subject to qualified immunity if they “occurred 

while [the defendant] was engaged in a discretionary duty.” Goebert v. Lee County, 510 

F.3d 1312, 1329 (11th Cir. 2007). 

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under the Second Policy. (Id., ¶¶ 47-51, 54). The plaintiff thus admits that all of 

Mitchell’s challenged acts and omissions fell within his discretionary authority.

The amended complaint alleges that, in October 2013 and February 2014, 

Steadman denied the plaintiff permission to engage in speech on the grounds 

outside Shelby Hall. (Doc. 29, ¶¶ 61, 119, 123-26, 129, 132). The amended 

complaint also alleges that Steadman was responsible for enforcing the First 

Policy on the University grounds around Shelby Hall, including deciding whether 

to approve or deny student speech requests. (Id., ¶ 60). The plaintiff thus admits 

that all of Steadman’s challenged acts and omissions fell within his discretionary 

authority. 

2. Clearly established right.

The lower courts have discretion whether to address first the existence of a 

constitutional violation or the clearly established nature of the right allegedly 

violated. Pearson v. Callahan, 555 U.S. 223, 236 (2009); accord Reichle v. 

Howards, 132 S. Ct. 2088, 2093 (2012). To avoid “the often more difficult 

question whether the purported right exists at all,” id., the Court addresses first the 

latter issue.

“The relevant, dispositive inquiry in determining whether a right is clearly 

established is whether it would be clear to a reasonable officer that his conduct 

was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 

(2001). “In other words, existing precedent must have placed the statutory or 

constitutional question beyond debate.” Reichle, 132 S. Ct. at 2093 (internal 

quotes omitted). “The salient question ... is whether the state of the law at the 

time of an incident provided fair warning to the defendants that their alleged 

conduct was unconstitutional.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). To 

attain that level, “the right allegedly violated must be established, not as a broad 

general proposition, ... but in a particularized sense so that the contours of the 

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right are clear to a reasonable official.” Reichle, 132 S. Ct. at 2094. The law is 

clearly established if any of three situations exists. 

“First, the words of the pertinent federal statute or constitutional provision 

in some cases will be specific enough to establish clearly the law applicable to 

particular conduct and circumstances to overcome qualified immunity, even in the 

total absence of case law.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 

2002) (emphasis omitted). The requisite fair and clear notice can be given without 

case law only “[i]n some rare cases.” Williams v. Consolidated City of 

Jacksonville, 341 F.3d 1261, 1270 (11th Cir. 2003). 

“Second, ... some broad statements of principle in case law are not tied to 

particularized facts and can clearly establish law applicable in the future to 

different sets of detailed facts.” Vinyard, 311 F.3d at 1351. “For example, if some 

authoritative judicial decision decides a case by determining that ‘X Conduct’ is 

unconstitutional without tying that determination to a particularized set of facts, 

the decision on ‘X Conduct’ can be read as having clearly established a 

constitutional principle: put differently, the precise facts surrounding ‘X Conduct’ 

are immaterial to the violation.” Id. “[I]f a broad principle in case law is to 

establish clearly the law applicable to a specific set of facts facing a government 

official, it must do so with obvious clarity to the point that every objectively 

reasonable government official facing the circumstances would know that the 

official’s conduct did violate federal law when the official acted.” Id. (internal 

quotes omitted). “[S]uch decisions are rare,” and “broad principles of law are 

generally insufficient to clearly establish constitutional rights.” Corey Airport 

Services, Inc. v. Decosta, 587 F.3d 1280, 1287 (11th Cir. 2009). 

“Third, [when] the Supreme Court or we, or the pertinent state supreme 

court has said that ‘Y Conduct’ is unconstitutional in ‘Z Circumstances,’” then if 

“the circumstances facing a government official are not fairly distinguishable, that 

is, are materially similar [to those involved in the opinion], the precedent can 

clearly establish the applicable law.” Vinyard, 311 F.3d at 1351-52. 

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When case law is utilized to show that the law was clearly established, the 

plaintiff must “point to law as interpreted by the Supreme Court [or] the Eleventh 

Circuit,” and such case law must pre-date the challenged conduct. Mercado v. 

City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005); accord Coffin v. Brandau, 

642 F.3d 999, 1013 (11th Cir. 2011) (en banc).10 Moreover, “[t[he law cannot be 

established by dicta[, which] is particularly unhelpful in qualified immunity cases 

where we seek to identify clearly established law.” Santamorena v. Georgia 

Military College, 147 F.3d 1337, 1342 n.13 (11th Cir. 1998) (internal quotes 

omitted). 

As is generally the case under Rule 56, “[w]e resolve all issues of material 

fact in favor of the plaintiff, and then determine the legal question of whether the 

defendant is entitled to qualified immunity under that version of the facts.” 

Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). 

As noted, the plaintiff brings free speech, due process and equal protection 

challenges. The Court considers them in turn.

a. Free speech.

“[T]he Supreme Court has broadly discerned three distinct (although not 

airtight) categories of government property for First Amendment purposes: 

traditional public fora, designated public fora, and limited public fora.” Bloedorn 

v. Grube, 631 F.3d 1218, 1230 (11th Cir. 2011). Identifying which is at issue is 

important, because “the degree of scrutiny we place on a government’s restraint of 

speech is largely governed by the kind of forum the government is attempting to 

regulate.” Id. The plaintiff, relying on Bloedorn and other cases, argues that this 

case involves only traditional and/or designated public fora.

 10 The plaintiff relies on a large number of trial court decisions and appellate 

opinions from other circuits. Because they are legally irrelevant to the task at hand, the 

Court ignores them.

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“Traditional public fora are public areas such as streets and parks that, since 

time out of mind, have been used for purposes of assembly, communicating 

thoughts between citizens, and discussing public questions.” Bloedorn, 631 F.3d 

at 1231 (internal quotes omitted). The plaintiff asserts that the Perimeter is a 

traditional public forum “because it is a park-like area with lawns, picnic benches, 

and trees next to” public sidewalks. (Doc. 41 at 24-25). The only Supreme Court 

or Eleventh Circuit case the plaintiff cites for this proposition is Bloedorn, which 

does not support it. On the contrary, that case instructs that “[t]he physical 

characteristics of the property alone cannot dictate forum analysis.” 631 F.3d at 

1233. Thus, “it is of lesser significance that the [campus] sidewalks and 

Pedestrian Mall physically resemble municipal sidewalks and public parks,” 

because a college campus “differs in many important ways from public streets or 

parks,” especially in that “the purpose of a university is strikingly different from 

that of a public park.” Id. at 1233-34. In short, “a state-funded university is not a 

traditional public forum ....” Id. at 1232. The plaintiff has thus failed to meet its 

burden of showing it is clearly established that the Perimeter is a traditional public 

forum.11

“A designated public forum is government property that has not 

traditionally been regarded as a public forum but that has been intentionally 

opened up for that purpose. ... To create a designated public forum, the 

government must intentionally open up a location ... for use by the public at 

large.” Bloedorn, 631 F.3d at 1231 (internal quotes omitted). The plaintiff asserts 

that the “the remaining outdoor areas of the campus” (that is, everything other than 

the Perimeter) constitute a designated public forum. (Doc. 41 at 24-25). Under 

the First Policy, the University “restricted student speech to one small speech zone 

 11 The plaintiff also suggests, without argument or explanation, that “the interior 

of the University’s campus is a traditional ... public forum.” (Doc. 41 at 15). The 

discussion in text reflects the plaintiff’ failure to show that any such proposition is clearly 

established under Supreme Court and/or Eleventh Circuit jurisprudence. 

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that occupied less than 0.01% of the University’s main campus,” although 

administrators had discretion to allow speech elsewhere. (Doc. 29, ¶ 2). Under 

the Second Policy, student speech is permitted in additional areas but prohibited in 

others. (Doc. 29-10 at 3-4). The plaintiff offers no Supreme Court or Eleventh 

Circuit authority (or any other) for the proposition that an entire property can be a 

designated public forum when the government body identifies only a part of the 

property as appropriate for expressive speech.

The plaintiff cites Sentinel Communications Co. v. Watts, 936 F.2d 1189 

(11th Cir. 1991), as “refer[ring] to the outdoor areas of campus as designated 

public fora for the plaintiff.” (Doc. 41 at 25). In fact, Sentinel merely noted that 

certain state property “may be” designated as a public forum, 936 F.2d at 1202

(internal quotes omitted), as could any part of any government property. The 

question, though, is not what can be a designated public forum but what, in a 

particular case, has become a designated public forum pursuant to government 

designation. Sentinel does not address the latter issue and so does not advance the 

plaintiff’s position.

The plaintiff also points to Bloedorn. Unlike a designated public forum, 

which the government opens to “the public at large,” 631 F.3d at 1231, “a limited 

public forum may be established when the government limits its property to use by 

certain groups or dedicates it solely to the discussion of certain subjects.” Id. 

(internal quotes omitted). The Bloedorn Court held that, when a university 

“expressed no intention to open [certain] areas to the general public for expressive 

conduct [but] limited these areas only for use by a discrete group of people – the 

[university] community; its the plaintiff, faculty, and employees; and their 

sponsored guests,” such restriction “is precisely the definition of a limited public 

forum.” Id. at 1232. The plaintiff asserts that this passage from Bloedorn

establishes that, when a campus location is opened to the university community 

but not the general public, the location is a limited public forum vis-à-vis the 

general public but a designated public forum vis-à-vis the university community. 

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(Doc. 41 at 26 n.10). Bloedorn, however, does not state that the same location can 

simultaneously be a limited public forum as to some and a designated public 

forum as to others, and its statement that a designated public forum must be 

opened up to “the public at large” would make such a construction difficult if not 

untenable. Certainly Bloedorn does not clearly establish for purposes of qualified 

immunity analysis the proposition for which the plaintiff contends. 

“Any restrictions made on expressive activity in a limited public forum 

only must be reasonable and viewpoint neutral,” while “a time, place, and manner 

restriction can be placed on a designated public forum only if it is content neutral, 

narrowly tailored to achieve a significant government interest, and leaves open 

ample alternative channels of communication.” Bloedorn, 631 F.3d at 1231. The 

plaintiff points out that the Second Policy provides that “expressive activities may 

be subject to reasonable regulation with regard to the time, place, and manner.” 

(Doc. 29-10 at 2). The plaintiff concludes that the “campus is a traditional or 

designated public forum” because the Second Policy employs the stock phrase, 

“time, place and manner,” which terminology the plaintiff apparently believes 

cannot be used in the context of a limited public forum. (Doc. 41 at 26 n.9). The 

plaintiff is wrong, as Bloedorn itself did so. 631 F.3d at 1235 (because certain 

locations “are limited public fora, any time, place, and manner restrictions made 

on expressive activity need only be viewpoint neutral and reasonable”). 

Finally, (Doc. 41 at 26), the plaintiff notes that “the campus of a public 

university, at least for its the plaintiff, possesses many of the characteristics of a 

public forum.” Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981). This is far too 

general a statement to clearly establish that the entire outdoor portion of the 

University’s campus is a public forum, since sharing certain qualities of a public 

forum is not the same as being a public forum. Indeed, the very same footnote 

reminds readers that “[w]e have not held ... that a university must grant free 

access to all of its grounds or buildings.” Id. 

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Although the defendants have not shown it is clearly established that the 

entire outdoor area of campus was a designated public forum, they may still show 

it is clearly established that certain portions of campus are or were a designated 

public forum. The Court therefore examines each policy in light of the principles 

set forth above. 

The First Policy, which contained no restriction on the subjects that could 

be discussed, provided that demonstrations, speeches and debates, including those 

by “unsponsored” speakers, were to be held in the Speech Zone unless permission 

to use another location was granted. (Doc. 29-5 at 6). The Bloedorn Court 

equated “non-sponsored speakers” with those “drawn from the general public” but 

not “sponsored by community members.” 631 F.3d at 1225-26. It is thus clearly 

established that the Speech Zone was a designated public forum rather than a 

limited public forum under the First Policy. See id. at 1234 (where “the University 

ha[d] intentionally opened this limited space ... to its student body and to the 

general public without any restrictions on content,” it had created a designated 

public forum). The defendants make no argument to the contrary. 

The Second Policy provides that the plaintiff and employees may engage in 

outdoor expressive activity in “all areas of the University campus,” with several 

excepted areas. (Doc. 29-10 at 3-4). However, outdoor expressive activity by 

non-University sponsored persons or groups is restricted to the Speech Zone. (Id. 

at 3). Because expressive speech outside the Speech Zone is open only to a 

“discrete group of people,” Bloedorn, 631 F.3d at 1231, it is not clearly 

established that any area outside the Speech Zone is a designated public forum

under the Second Policy.

12 

In sum, for purposes of the pending motion, the plaintiff has met its burden 

of showing it is clearly established that the Speech Zone was a designated public 

 12 The areas opened by the Second Policy to expressive activity by the University 

community but not by outsiders would be a limited public forum under Bloedorn. 631 

F.3d at 1231.

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forum under the First Policy and that it remains a designated public forum under 

the Second Policy. However, the plaintiff has not met its burden of showing it is 

clearly established that any other area of campus was a traditional public forum or

a designated public forum under the First or Second Policy.

Unfortunately for the plaintiff, its entire argument depends on the premise

of a traditional or designated public forum, and the plaintiff invokes only the test 

for permissible regulation applicable to such fora. (Doc. 41 at 27-28). This 

renders the plaintiff’s argument incapable of carrying its burden of showing that 

the First and Second Policies violate its clearly established First Amendment 

rights.13

The plaintiff might nevertheless defeat qualified immunity to the extent it 

challenges the First or Second Policy’s regulation of the Speech Zone, since that 

area is a designated public forum as to which the plaintiff’ proposed test applies.

The plaintiff, however, mounts no such challenge. As to the First Policy, the 

plaintiff objects to: the discretion vested in administrators in deciding whether to 

allow expressive activity outside the Speech Zone; the advance notice required to 

obtain permission to speak outside the Speech Zone; the loss of anonymity 

associated with requests for permission to speak outside the Speech Zone; the 

requirement of a permit to speak outside the Speech Zone even when only an 

individual or small group is involved; the absence of additional designated public 

fora; and the University’s denials of the plaintiff’s requests to hold a cemetery of 

 13 As the plaintiff acknowledges, (Doc. 41 at 24-25, 28), “a time, place, and 

manner restriction can be placed on a designated [or traditional] public forum only if it is 

content neutral, narrowly tailored to achieve a significant government interest, and leaves 

open ample alternative channels of communication.” Bloedorn, 631 F.3d at 1231. As the 

plaintiff also acknowledges, (Doc. 41 at 26 n.9), “[a]ny restrictions made on expressive 

activity in a limited public forum only must be reasonable and viewpoint neutral.” 

Bloedorn, 631 F.3d at 1231. 

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innocents outside the Speech Zone. (Doc. 41 at 27-28, 30-31, 33, 35-36).

14 As to 

the Second Policy, the plaintiff objects to the banning of expressive activity in the 

Perimeter and the discretion vested in administrators to determine its interior 

boundary. (Id. at 28, 31-32, 36-37, 38).

The only issue raised by the plaintiff that might arguably implicate 

regulation of the Speech Zone is the objection that the Speech Zone is too small. 

(Doc. 41 at 36). Because the plaintiff cites only trial court opinions in support of 

this objection, (id.), it plainly has not carried its burden of demonstrating it is 

clearly established that the size of the Speech Zone violates the First Amendment.

As the plaintiff notes, (Doc. 41 at 24-25, 26 n.9), one rule applies both to 

traditional/designated public fora and to limited public fora. “[E]ven in a nonpublic forum, the law is clearly established that the state cannot engage in 

viewpoint discrimination – that is, the government cannot discriminate in access to 

the forum on the basis of the government’s opposition to the speaker’s viewpoint.” 

Cook v. Gwinnett County School District, 414 F.3d 1313, 1321 (11th Cir. 2005).

The plaintiff argues that Mitchell and Steadman engaged in content discrimination 

and viewpoint discrimination when, while the First Policy was in force, they 

denied the plaintiff permission to place a cemetery of innocents in the Perimeter. 

 14 At times in its briefing, the plaintiff seems to suggest that loss of spontaneity 

and anonymity apply to speech in the Speech Zone, (Doc. 41 at 35, 38), but the express 

terms of the First Policy render any such unstated suggestion untenable:

Demonstrations, speeches, and debates will be held around the Student 

Center unless the Vice President for Student Affairs is able to coordinate 

another appropriate campus location no less than three working days prior 

to the event. Authorization for any speech or demonstration beyond the 

Student Center will require identification of the individual or organization 

involved .... 

(Doc. 29-5 at 6 (emphasis added)). 

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(Doc. 41 at 33).15 The plaintiff has evidence that permission was denied because 

the plaintiff “advocates for a position that involves political and social 

controversy.” (Doc. 29-6). The Court agrees with the plaintiff that this e-mail 

constitutes evidence that Mitchell and Steadman denied permission due to the 

plaintiff’s viewpoint (“position”) on abortion (pro-life). Because it was clearly 

established in February 2014 that such viewpoint discrimination violates the First 

Amendment, Mitchell and Steadman cannot receive qualified immunity with 

regard to these denials.

16

b. Due process - overbreadth.

The plaintiff argues that the First and Second Policies violate its due 

process rights under the Fourteenth Amendment because the policies are 

overbroad. (Doc. 41 at 39). In the first place, the amended complaint limits the 

plaintiff’s due process claim to one of vagueness, to the exclusion of overbreadth. 

(Doc. 29 at 32-34). In the second place, the only two cases cited by the plaintiff

involve free speech challenges, not due process challenges. In the third place, 

those cases address overbreadth only in the context of a traditional public forum, 

which renders them irrelevant to the present context. For all these reasons, the 

plaintiff has failed to meet its burden of demonstrating it is clearly established that 

the First and Second Policies violate the plaintiff’ due process rights.

 15 In contrast to viewpoint neutrality, content neutrality is not always required in a 

limited public forum. “[I]n determining whether the State is acting to preserve the limits 

of the forum it has created so that the exclusion of a class of speech is legitimate, we have 

observed a distinction between, on the one hand, content discrimination, which may be 

permissible if it preserves the purposes of that limited forum, and, on the other hand, 

viewpoint discrimination, which is presumed impermissible when directed against speech 

otherwise within the forum’s limitations.” Rosenberger v. Rector and Visitors of the 

University of Virginia, 515 U.S. 819, 829-30 (1995). 

16 Mitchell and Steadman argue they could not have had fair notice of any 

constitutional infirmity because the First Policy “has never been declared unconstitutional 

or even challenged as such until this lawsuit was filed.” (Doc. 31 at 8). As discussed in 

text, this is not the test of whether their conduct violates a clearly established 

constitutional right. 

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c. Due process – vagueness.

The plaintiff also argues that the First and Second Policies violate its due 

process rights under the Fourteenth Amendment because the policies are vague. 

(Doc. 41 at 40). The only three cases cited by the plaintiff address vagueness in 

the context of a criminal statute, not a policy creating designated and/or limited 

public fora, which renders them irrelevant to the present context. The plaintiff has 

thus failed to carry its burden of showing it is clearly established that the First and 

Second Policies violate the plaintiff’ due process rights. 

d. Equal protection.

The plaintiff argues that the First and Second Policies, as written and as 

applied, violate its equal protection rights under the Fourteenth Amendment. 

(Doc. 41 at 41). The single case cited by the plaintiff – which did not involve 

expressive activity – is offered only for the bland proposition that similarly 

situated persons should be treated similarly. (Id.). What the plaintiff fails to 

provide is any authority from which it could be clearly established that those 

treated more favorably than the plaintiff – an engineering club that hosted a 

jousting event in the Perimeter, the students who talk/eat/study/play/hang out in 

the Perimeter, and student groups that hang sheet signs advertising campus events 

and elections in a traffic circle – are similarly situated to an organization that 

desires to use these areas, not to play or to publicize campus activities, but to 

“promote and defend the culture of life.” (Doc. 29, ¶¶ 70, 96, 103-06, 127-28, 

137-38, 165-67). The plaintiff has thus failed to demonstrate it is clearly 

established that the First and Second Policies violate the plaintiff’ equal protection 

rights. 

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III. Second Policy. 

The plaintiff challenges the Second Policy “on its face and as applied.” 

(Doc. 29, ¶ 8). The defendants argue that the as-applied claim is inadequately 

pleaded because the amended complaint does not allege facts “to show that any 

Defendant has applied the Second Policy to [The plaintiff] at all.” (Doc. 31 at 12). 

The defendants misapprehend the nature of an as-applied challenge. While 

“[a] facial challenge asserts that a law always operates unconstitutionally,” an asapplied challenge “asserts that a statute cannot be constitutionally applied in 

particular circumstances.” Harris v. Mexican Specialty Foods, Inc., 564 F.3d 

1301, 1308 (11th Cir. 2009) (emphasis in original) (internal quotes omitted). 

While such claims often address an historical application of the rule to the 

plaintiff, they can be brought without such an application, as occurred in Harrell. 

Because the defendants have not attempted to demonstrate that the plaintiff is 

required to plead an affirmative application to it of the Second Policy, they cannot 

obtain dismissal on the ground that the plaintiff failed to do so.17 

In similar fashion, the defendants complain that the amended complaint 

fails to allege that any other student organization has engaged in protected speech 

(as opposed to recreation) in the Perimeter. (Doc. 31 at 12-13). Such an omission 

might be relevant to the plaintiff’ equal protection claim, but the defendants have 

not explained how it could impact the plaintiff’ due process and free speech 

claims. Nor have they attempted to demonstrate that, as a matter of law, an equal 

protection claim cannot be based on the preferential treatment of such 

organizations. The defendants have therefore failed to show that the amended 

complaint is legally deficient. 

 17 Given that the Second Policy explicitly closes the Perimeter to expressive 

activities, (Doc. 29-10 at 3-4), and given that even under the First Policy the University 

twice refused The plaintiff permission to use the Perimeter, the defendants would have a 

difficult climb were they to argue that the controversy is not ripe absent another request 

to use the Perimeter. See Harrell, 608 F.3d at 1262 (an as-applied challenge is ripe 

absent an actual application when it addresses a rule “whose application is categorical 

and thus clear”).

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CONCLUSION

For the reasons set forth above, the defendants’ motion to dismiss is 

granted as to all claims for declaratory or injunctive relief with respect to the First 

Policy and is granted as to all claims for nominal damages not based on alleged 

viewpoint discrimination in violation of the First Amendment by Mitchell and 

Steadman in denying permission to use the Perimeter for a cemetery of innocents. 

In all other respects, the motion to dismiss is denied.

DONE and ORDERED this 4th day of February, 2015.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

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