Opinion
Civil Action No. 01-CV-10166-GAO
December 12, 2001
MEMORANDUM AND ORDER
Norman Greenberg, acting pro se, brings this action under 42 U.S.C. § 1983, alleging that the defendants violated his First and Fourth Amendment rights and his rights under Articles 14 and 16 of the Massachusetts Constitution. The defendants have moved for summary judgment. In response, the plaintiff cross-moved for summary judgment against all three defendants. For the reasons set forth below, the defendants' motions for summary judgment are GRANTED, and the plaintiff's motions for summary judgment are DENIED.
The plaintiff's allegations of violations of his rights under the Massachusetts Constitution cannot support a § 1983 claim. See Ahern v. O'Donnell, 109 F.3d 809, 815 (1st Cir. 1997) ("By the terms of the statute itself, a section 1983 claim must be based upon a federal right.") (emphasis in original).
Undisputed Facts
Greenberg was a professor in the Criminal Justice Department at Westfield State College ("the College") from 1981 to 1990. Greenberg Aff. ¶ 2. After 1990, Greenberg brought various lawsuits against the College. Several times during the pendency of those lawsuits, Greenberg sought to meet with the president of the College, Frederick Woodward, to discuss the possibility of returning to teach at the College. Woodward and Scannell Mot. for Summ. J., Ex. 2, Woodward Aff. ¶ 3. Woodward refused to meet with Greenberg because of the pending lawsuits. Id. Ex. 2, Woodward Aff. ¶ 4. On four separate occasions, the College's Department of Public Safety, directed since 1996 by defendant Paul Scannell, issued trespass notices to Greenberg pursuant to its authority under Mass. Gen. Laws ch. 266, § 123 ("Section 123"). Id. Ex. 1, Scannell Aff. ¶ 1, 2, 3, 4, 7, 11.
Section 123 provides, in relevant part, that "[w]hoever willfully trespasses upon land or premises belonging to the commonwealth, or to any authority established by the general court for purposes incidental to higher education, appurtenant to a public institution of higher education . . . or whoever, after notice from an officer of any of said institutions to leave said land, remains thereon, shall be punished by fine of not more than fifty dollars or by imprisonment for not more than three months." Mass. Gen. Laws ch. 266, § 123.
On September 8, 1997, the College's Office of the President requested assistance from the Department of Public Safety in escorting Greenberg from the president's office. Scannell responded to the call and warned Greenberg that if he did not leave he would be arrested for trespassing. Greenberg then moved to an area down the hall from the president's office and was given a statutory trespass notice banning him from the president's office. Id. Ex. 1, Scannell Aff. ¶ 3.
Again on March 10, 1998, the Office of the President contacted the Department of Public Safety for assistance in removing Greenberg from the president's office. Greenberg left the president's office and was presented with another trespass notice banning him from the president's office. Id. Ex. 1, Scannell Aff. ¶ 4.
On October 14, 1998, Scannell again responded to a request for assistance by the Office of the President to remove Greenberg from the president's office. This time, Greenberg refused to leave after Scannell's arrest warning and was arrested for violating the trespass notice. Id. Ex. 1, Scannell Aff. ¶ 5.
Two weeks later, the secretary of the College's Criminal Justice Department reported to the Department of Public Safety that Greenberg had come to the department, "'checked out the layout of the offices,' and indicated that he wanted to wait there." The secretary reported that Greenberg left when she picked up the phone to call for assistance. She added that Greenberg made her "very nervous." Id. Ex. 1, Scannell Aff. ¶ 6.
On October 27, 1998, Woodward received a memorandum from Professor Victor H. Ascolillo, on behalf of himself and four other members of the Criminal Justice Department, stating their concern over Greenberg's recent visit to the department in light of the fact that Greenberg had named several members of the department as defendants in his recent lawsuits. The memo demanded that the College take steps to protect the students, faculty, and staff in the department. Id. Ex. H. On November 9, 1998, the Department of Public Safety issued a third trespass notice to Greenberg, banning him from all property and buildings owned by the College for two years. Id. Ex. 1, Scannell Aff. ¶ 7.
In a letter dated August 21, 2000, Greenberg informed Woodward that he intended to "engage in civil disobedience by appearing at [the president's] office on the morning of September 13, 2000 and [would] refuse to leave until a class [was] assigned to [him]." Id. Ex. M. Upon receipt of the letter, Woodward informed Scannell of Greenberg's plan to violate the trespass notice. Scannell in turn contacted the Massachusetts State Police and requested assistance on September 13, 2000 in preparation for Greenberg's potential violation of the notice. Sergeant Stephen Griffin and Trooper Gary Fitzgerald of the Massachusetts State Police responded to the request. Id. Ex. 1, Scannell Aff. ¶¶ 8-9.
At approximately 12:20 p.m. on September 13, 2000, Scannell learned that Greenberg had entered the building that formerly housed the president's office and had inquired as to the current location of the office. Id. Ex. 1, Scannell Aff. ¶ 10. Shortly thereafter, Scannell arrested Greenberg as Greenberg approached the building that currently housed the president's office. Id. Ex. 1, Scannell Aff. ¶ 10. At the campus police station, campus police officers read Greenberg his rights and issued another trespass notice. Greenberg was photographed and fingerprinted and his knapsack was searched before he was transported to Westfield District Court. Id. Ex. 1, Scannell Aff. ¶¶ 11-12.
Standard of Review
Summary judgment is an appropriate disposition of a case "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if its resolution would "affect the outcome of the suit under the governing law," and dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Defendants Woodward and Scannell
A claim under 42 U.S.C. § 1983 requires the plaintiff to show (1) a violation of the plaintiff's federally secured rights, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). The defendants Woodward and Scannell moved for summary judgment on the grounds that the plaintiff's First and Fourth Amendment rights were not violated and that they are entitled to the defense of qualified immunity.
The plaintiff's First Amendment rights were not violated. Section 123 provides that "[w]hoever willfully trespasses upon land or premises belonging to the commonwealth, or to any authority established by the general court for purposes incidental to higher education [or] appurtenant to a public institution of higher education . . . or whoever, after notice from an officer of any of said institutions to leave said land, remains thereon, shall be punished by a fine of not more than fifty dollars or by imprisonment for not more than three months." Mass. Gen. Laws ch. 266, § 123. The statute clearly authorizes the College to prohibit trespassing on its property.
It may be acknowledged that the College may not prohibit entry to the campus when the entry is "intertwined with First Amendment freedoms of speech and petition, unless the actor or actors disrupt the uses to which the public has dedicated the property. . . ." Hurley v. Hinckley, 304 F. Supp. 704, 712 (D.Mass. 1969), aff'd per curiam sub nom. Doyle v. O'Brien, 396 U.S. 277 (1970). However, Greenberg's conduct at issue in this case is not protected by the First Amendment. The Constitution only protects conduct that is "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments. In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, [one asks] whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it." Texas v. Johnson, 491 U.S. 397, 404 (1989) (citations and internal quotations omitted). Greenberg's conduct, simply and straightforwardly trespassing after notice, did not express any particular opinion, and it is doubtful that any of the people observing his arrest would have drawn an expressive message from his conduct, unless it was, "I will not abide by the trespass statute." Every offender of criminal provisions might be understood to make that sort of statement. Compare, Brown v. Lousiana, 383 U.S. 131, 141-42 (1966) (protecting the rights of blacks to protest segregation by sitting in the "whites only" section of the public library).
Even if Greenberg's conduct were the kind of expression protected by the First Amendment, his conduct could still be constitutionally regulated. The College is not a traditional public forum such as a street or a park, and the Supreme Court has "never denied a university's authority to impose reasonable regulations compatible with [its] mission [of education] upon the use of its campus and facilities. Widmar v. Vincent, 454 U.S. 263, 268 n. 5 (1981) (noting that the Supreme Court has never held "that a university must grant free access to all of its grounds or buildings"). Designated public fora, such as a college, can be subject to reasonable time, place and manner regulations that are content-neutral. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983). The defendants' issuance of the trespass notices and their subsequent arrest of the defendant were content-neutral and were reasonably based on Greenberg's disruption of the school's operations. The extension of the ban to include the entire campus was based rationally on Greenberg's repeated violations of the trespass notices and the anxiety his visit to the Criminal Justice Department caused among the faculty and staff.
Finally, to the extent Greenberg alleges that the Massachusetts trespass statute is facially unconstitutional, the defendants are entitled in any event to a qualified immunity defense. The doctrine of qualified immunity provides a defense from civil damages for state actors if at the time of the violation, the plaintiff's rights were not clearly established under the Constitution or laws of the United States. See Camilo-Robles v. Zapata, 175 F.3d 41, 43 (1st Cir. 1999) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)). The immunity defense hinges on "whether the allegedly violated federal right was established with sufficient clarity that a reasonable government functionary should have conformed his conduct accordingly." Id. The unconstitutionality of Section 123, dubious in any event, certainly had not been clearly established at the time of Greenberg's arrest pursuant to that statute's authority.
Nor were the plaintiff's Fourth Amendment rights violated. Greenberg claims that his arrest on September 13, 2000, for violating the trespass notice issued pursuant to Section 123 and the subsequent search of his knapsack violated his Fourth Amendment right to be free from unreasonable searches and seizures. Both claims fail. The arrest is proper because it was supported by probable cause. See Beck v. Ohio, 379 U.S. 89, 91 (1964) (stating that a constitutionally valid arrest is made when at the moment of arrest, the facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person in believing that an offense has been committed). The search of Greenberg's knapsack was lawful as a search incident to a lawful arrest and as a lawful inventory search. See Colorado v. Bertine, 479 U.S. 367, 374 (1987) (holding that an inventory search that is conducted in good faith and according to reasonable police standards does not violate the Fourth Amendment); United States v. Robinson, 414 U.S. 218, 224 (1973) (recognizing that a search of the arrestee and the area within the control of the arrestee is an exception to the Fourth Amendment warrant requirement).
As the Director of Public Safety at the College, Scannell is vested with all of the powers of a police officer, including the power of arrest, with the exception of service of process. See Mass. Gen. Laws ch. 15A, § 22.
Defendant Sergeant Griffin
The plaintiff alleges the same § 1983 claims against Griffin. The only reference to Griffin in the complaint states, "At the time the arrest occurred, an unidentified state police officer was present who either observed or assisted Mr. Scannell." Compl. ¶ 8. In addition to the reasons applicable to the other defendants, Griffin's motion is meritorious because the complaint fails to allege any factual basis for adjudging him liable on any other theory.
Greenberg confirmed in his deposition that Griffin never touched or spoke to Greenberg during the arrest. Mem. in Support of Griffin's Mot. for Summ. J., Ex. I, Greenberg Dep. at 80.
Conclusion
For the foregoing reasons, the defendants' motions for summary judgment are GRANTED, and the plaintiff's complaint is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.