MEMORANDUM OPINION AND ORDER

SAM LINDSAY, District Judge

Before the court is Defendants City of Grand Prairie and Mayor Charles England's Motion to Dismiss, filed December 15, 1999. After careful consideration of the motion, response, and applicable law, the court grants in part and denies in part Defendants' motion to dismiss.

I. Procedural and Factual Background

Plaintiff Tommy H. Luckett ("Plaintiff" or "Luckett") filed this action pursuant to 42 U.S.C. § 1983 on August 4, 1999, against the City of Grand Prairie (the "City") and Mayor Charles England ("Mayor England"), collectively referred to as "Defendants." He contends that Defendants violated his rights under the First and Fourteenth Amendments to the United States Constitution. Specifically, Plaintiff contends that Defendants prohibited him from speaking during the "Citizens' Comments" period at two Grand Prairie City Council meetings and thereby violated his right (1) of free speech, (2) to peaceably assemble; (3) to petition the government for redress of grievances; and (4) to equal protection of the laws; and (5) to substantive due process. Luckett also asserts a state claim of intentional infliction of emotional distress against Mayor England only. He contends that Mayor England's actions in not allowing him to speak during the "Citizens' Comments" portion of two meetings were intentional and malicious and caused him emotional distress.

Defendants contend that they did not violate Plaintiff's civil rights and that he has failed to state a claim upon which relief can be granted. Mayor England also contends that he did not violate clearly established law of which a reasonable person would have known and is therefore entitled to qualified immunity under federal and state law. The City also asserts the defense of sovereign or governmental immunity. Defendants file this motion to dismiss, seeking dismissal of all claims asserted by Plaintiff.

The court now sets forth the facts upon which it relies to rule on this motion. As required, the well-pleaded allegations of Plaintiff's First Amended Complaint ("Complaint") are taken as true for purposes of a motion to dismiss. The following relevant facts are found in Plaintiff's Complaint ¶¶ 7-18.

7. Mr. Luckett has been a tax-paying resident of Grand Prairie, Texas since he purchased a home there over 26 years ago. During his residency in Grand Prairie, Mr. Luckett has bought and sold homes in the city for others as a licensed real estate broker and for himself for investment. Mr. Luckett has done his best to contribute to Grand Prairie's quality of life.

8. Mr. Luckett learned about the Johnson Creek Flood Control Project (hereinafter the `Project') in late 1991. The Project would expand the banks of Johnson Creek, which bordered the rear of Mr. Luckett's residential property. Mr. Luckett attended public meetings about the Project from September 1992 to August 6, 1993. He also voiced his opinions about the Project and related issues at approximately 10 out of the approximately 91 Grand Prairie City Council (hereinafter the `City Council') meetings from September 1993 through September 1997. The City Council typically meets on the first and third Tuesday of each month. Mr. Luckett addressed the City Council for the prescribed maximum of five minutes each time he spoke. Mayor England did not share or like Mr. Luckett's views on the Project, and he did not want Mr. Luckett to voice his views at City Council meetings.

9. In early to mid-1999, Mr. Luckett learned that Grand Prairie planned to hire a new city manager, bringing the total number of city managers to four. He believed that Grand Prairie, with an approximate population of 100,000 people, did not need four city managers. Mr. Luckett drafted a five-minute speech and planned to address the City Council during the citizen comments segment at its May 18, 1999 public meeting.

10. Mr. Luckett attended the May 18, 1999 City Council meeting. He completed and timely submitted a card prescribed by the City Council for registration of speakers. . . . Mr. Luckett marked the box labeled `Citizen Comments (for items not on the agenda).'

11. During a break in the City Council meeting, Mayor England, standing in the lobby leading into the City Council chambers, told Mr. Luckett in substance, `I don't know why you are hanging around, because I'm not going to let you speak.' Mr. Luckett was stunned. He turned to nearby reporters and told them what Mayor England had said. Mr. Luckett then told Grand Prairie's city attorney that Mayor England was not going to let him speak. When Mr. Luckett asked the city attorney for a ruling on Mayor England's decision, the attorney just shrugged his shoulders.

12. Mayor England, who presides over all City Council meetings, conducted the meeting as scheduled. Near the end of the meeting, Harry Englert, a member of the City Council, said, `Mayor, we've skipped Citizens' Comments. I understand Mr. Luckett has in a card.'

13. The Mayor responded, speaking about Mr. Luckett, `There was one person who asked to speak under Citizens' Comments, and I have rejected his request to address this council under Citizens' Comments. I told Mr. Luckett the last time he was here at council meeting, as far [sic] I was concerned, it would be the last time he'd ever address this City Council under Citizen Comments. He has bashed this staff. He has bashed the City Council. He has threatened litigation. We've heard him no less than ten to twelve times about his complaint. I think enough is enough, and as a result of that, as the chairman of this illustrious board I'm not going to allow Mr. Luckett to address this council under Citizens' Comments.' Mayor England continued, with a pause of less [sic] three seconds, `I'll entertain a motion to adjourn.'

14. Mr. Luckett was shocked that Mayor England would not allow Mr. Luckett to speak, when every other resident of Grand Prairie was able to do so. As a result, Mr. Luckett lost sleep, experienced mental anguish, and had a general feeling of hopelessness. Nevertheless, Mr. Luckett decided to give Mayor England and Grand Prairie another opportunity to allow him to speak at the public forum.

15. Mr. Luckett attended the June 1, 1999 City Council meeting. As he had done at the May 18, 1999 City Council meeting, Mr. Luckett complied with City Council procedure by timely completing a request to speak during the time for Citizens' Comments. . . . Mr. Luckett marked the box labeled `Citizen Comments (for items not on the agenda).'

16. During the time for citizens' comments, Mayor England allowed Don Pyle, a resident of Grand Prairie, to speak. Mr. Pyle, who resided in a portion of Grand Prairie which was in Tarrant County, complained about tax notices being issued to him in the name of or purportedly from Dallas County. Mayor England volunteered to personally speak to the city secretary to remedy the tax invoice problems. Mayor England allowed Mr. Pyle to speak because Mayor England did not take issue with Mr. Pyle's views. After Mr. Pyle spoke, Ruthe Jackson, a member of the City Council, stated that Ms. Waddell, a member of the Historical Commission, had passed away. Ms. Jackson asked the City Council to engage in silent prayer, which it did.

17. Mayor England then noted a `motion to adjourn by Ruthe Jackson.' Realizing that Mayor England was again going to prohibit Mr. Luckett from speaking, Mr. Luckett stated, `point of order.'

18. Mayor England responded, `You've stated your point, Mr. Luckett, and your point is overruled. I've told you, Mr. Luckett, that you will not be allowed to address this council; you will not be allowed to address this council under Citizens' Comments as long as I am mayor of this city.' Mayor England then adjourned the meeting.

A motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) "is viewed with disfavor and is rarely granted." Lowrey v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997). A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 120 S.Ct. 2659 (2000). The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247. A plaintiff, however, must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).

III. Analysis

A. Qualified Immunity

Government officials who perform discretionary functions are entitled to the defense of qualified immunity, which shields them from suit as well as liability for civil damages, if 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). A defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Mayor England has pleaded this defense.

In deciding a motion for summary judgment that raises the defense of qualified immunity, the court must first decide "whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290 (1999), citing Siegert v. Gilley, 500 U.S. 226, 232-33 (1991); see also Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999). The second prong of the test requires the court to make two separate inquiries: whether the right allegedly violated was clearly established at the time of the event giving rise to the plaintiff's claim, and if so, whether the conduct of the defendant was objectively unreasonable. Evans v. Ball, 168 F.3d 856, 860 (5th Cir. 1999). Although many cases continue to state that the determination of the qualified immunity issue requires the application of a bifurcated test, the analytical framework for resolving issues of qualified immunity necessarily requires, or may require, a three-step analysis. See Kerr v. Lyford, 171 F.3d at 339; Evans v. Ball, 168 F.3d at 860; Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995), cert. denied, 517 U.S. 1191 (1996).

Whether a defendant acted within the scope of his authority performing a discretionary function and whether a reasonable official in his position would have deemed his conduct unconstitutional are not to be considered by the court unless each part of the three-step inquiry has been answered affirmatively on behalf of the plaintiff. Kerr v. Lyford, 171 F.3d at 339. In other words, only after a plaintiff demonstrates the existence and violation of a clearly established constitutional or statutory right is the defendant required to show that he was performing a discretionary function and that a reasonable official would not have considered his actions to be unconstitutional at the time of the incident in question. Id. at 338.

A right is "clearly established" only when its contours are sufficiently clear that a reasonable public official would have realized or understood that his conduct violated the right in issue, not merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S. 635, 640 (1987); Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right must not only be clearly established in an abstract sense but in a more particularized sense so that it is apparent to the official that his actions [what he is doing] are unlawful in light of pre-existing law. Anderson v. Creighton, 483 U.S. at 640; Stefanoff v. Hays County, 154 F.3d 523, 525 (5th Cir. 1998); and Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997).

In Anderson v. Creighton, 483 U.S. at 641, the Supreme Court refined the qualified immunity standard and held that the relevant question is whether a reasonable officer or public official could have believed that his conduct was lawful in light of clearly established law and the information possessed by him. If public officials or officers of "reasonable competence could disagree [on whether an action is legal], immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986); Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) ( citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)). Conversely, an official's conduct is not protected by qualified immunity if, in light of clearly established pre-existing law, it was apparent the conduct, when undertaken, would be a violation of the right at issue. Foster v. City of Lake Jackson, 28 F.3d at 429. To preclude qualified immunity, it is not necessary for a plaintiff to establish that "the [specific] action in question has previously been held unlawful." Anderson v. Creighton, 483 U.S. at 640. For an official, however, to surrender qualified immunity, "pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances." Pierce v. Smith, 117 F.3d at 882; Stefanoff v. Hays County, 154 F.3d at 525. For the reasons stated herein, Mayor England is not entitled to the defense of qualified immunity.

B. Plaintiff's First Amendment Claims

1. Free Speech

Mayor England contends that Plaintiff does not have a clearly established right to speak at the "Citizens' Comments" portion of a Grand Prairie City Council meeting. Based on the well-pleaded allegations in Plaintiff's Complaint, the court disagrees.

A governmental entity may place limitations on the time, place and manner of speech as long as the restrictions are content neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternatives for communication. Burson v. Freeman, 504 U.S. 191, 197 (1992); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). When a governmental entity allows a public question and answer period or a period of public participation, it creates a public forum where persons have First Amendment rights. See City of Madison, Joint Sch. Dist. No. 8 v. Wisconsin Employment Relations Comm'n., 429 U.S. 167, 174-75 (1976). With respect to the content or message being conveyed, the Supreme Court has stated:

[U]nder the . . . First Amendment . . . government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. . . . Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.

Based on the facts in this case, it appears that Plaintiff was not allowed to speak because Mayor England assumed that he (Plaintiff) was going to criticize or "bash" the council and staff, or threaten litigation, which he had done in the past. The mayor assumed that Plaintiff's statements were going to be critical, controversial, and perhaps disruptive; however, since he was not allowed to speak, the court does not know what Plaintiff would have said and neither did Mayor England. Under the facts as pleaded, Mayor England did not know whether Plaintiff was going to be disruptive. Mayor England cites Smith v. Cleburne County Hosp., 870 F.2d 1375, 1383 (8th Cir.), cert. denied, 493 U.S. 847 (1989), and Kindt v. Santa Monica Pest Control Bd., 67 F.3d 266, 270-71 (9th Cir. 1995), for the proposition that a speaker cannot use the First Amendment to disrupt a council meeting. The court has no quarrel with this general principle. Had Plaintiff become disruptive, the Mayor could have taken appropriate steps to maintain an orderly and efficient meeting. In this case, however, we do not know whether Plaintiff would have been disruptive. All we know for certain is that he was not disruptive at the two meetings in question. Accordingly, Smith and Kindt are not applicable to this case.

The court is fully aware that the city council has a significant, if not compelling, governmental interest in ensuring order at its council meetings; however, there is no evidence that Plaintiff was disruptive or disorderly at either meeting, or that he was about to become disorderly or disruptive. It appears that Plaintiff was not allowed to speak because of what he was going to say or may have said. Nothing in the Complaint indicates otherwise. The allegations of the Complaint indicate that Mayor England lacked sufficient justification (a compelling need) to impose a prior restraint on speech.

Based upon the applicable law, the court concludes that Plaintiff has stated a constitutional claim upon which relief can be granted; that the right was clearly established in 1999; and that in light of the facts as set forth in the Complaint, a reasonable person would not have considered the actions of Mayor England objectively reasonable. In other words, the court believes that a reasonable person could not have believed that Mayor England's conduct was lawful in light of clearly established law and the information possessed by him (Mayor England) at the times he acted regarding Plaintiff. Accordingly, Defendant's motion to dismiss Plaintiff's free speech claim is denied.

2. Peaceable Assembly

The claim is not addressed by Defendants per se. The court is not certain of the parties' positions on this claim. Since it is not addressed by Defendants, the court denies the motion to dismiss without prejudice as to this particular claim. If this is really a claim subsumed in Plaintiff's claim of his right to petition for redress of grievances, the parties need to so inform the court with specificity and clarity.

3. Petition for Redress of Grievances

The parties agree that the right of free speech and the right to petition are closely related. See Plaintiff Tommy H. Luckett's Brief in Support of His Response to Defendants City of Grand Prairie and Mayor Charles England's Motion to Dismiss at 7, and Brief of Defendants City of Grand Prairie and Mayor Charles England's Motion to Dismiss at 7. The parties are correct as "[t]he right to petition is cut from the same cloth as the other guarantees of that [ First] Amendment, and is an assurance of a particular freedom of expression." McDonald v. Smith, 472 U.S. 479, 482 (1985). Though separate guarantees, the right to free speech and right to petition "are related and generally subject to the same constitutional analysis." Wayte v. United States, 470 U.S. 598, 610 n. 11 (1985). Given that the analysis is essentially the same under both rights, the court, for the reasons expressed earlier regarding Plaintiff's free speech claim, denies Defendants' motion to dismiss the Plaintiff's petition for redress of grievance claim at this time.

B. Equal Protection of the Laws

Plaintiff contends that he was denied equal protection of the laws because other persons were allowed to speak during the "Citizens' Comments" portion of the council meetings and he was not allowed to speak. Defendants deny that Plaintiff has been denied equal protection of the laws and contend that Plaintiff has failed to state a claim upon which relief can be granted as to his equal protection claim.

The equal protection clause of the Fourteenth Amendment to the Constitution requires that persons who similarly situated be treated the same. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). Defendants contend that Plaintiff's Fourteenth Amendment claim is really a First Amendment claim, and as such cannot stand. See Thompson v. City of Starksville, Miss., 901 F.2d 456, 468 (5th Cir. 1990) (holding that the plaintiff's equal protection claim was actually a restatement of his First Amendment claim and thus could not be brought under the Fourteenth Amendment). This holding, however, appears to conflict with the Supreme Court, which has held that content-based restrictions on speech can violate the "equal protection" guarantees when such restrictions "differentiate between types of speech." Burson v. Freeman, 504 U.S. at 197 n. 3, citing Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972). This issue needs further, specific briefing by the parties before the court can rule. Accordingly, the court does not believe dismissal is proper and denies dismissal of this claim without prejudice.

C. Substantive Due Process

The court does not believe that this claim has been adequately addressed by either side. While both sides selectively refer to key phrases and terminology in general terms from cases discussing substantive due process, none of the authority cited really is germane to the case before the court. Perhaps, Plaintiff's alleged substantive due process violation is really a restatement of his First Amendment claim. In any event, no authority is cited that is even remotely analogous to the facts of this case. Insofar as Defendants rely on the Mayor's right to maintain order at council meetings and is therefore entitled to qualified immunity, that argument is foreclosed by the earlier holding of the court regarding Plaintiff's free speech claim. As this claim needs additional briefing or clarification, the court does not believe dismissal is proper. Accordingly, the motion to dismiss, insofar as this claim, is denied.

D. Intentional Infliction of Emotional Distress

Plaintiff contends that he was subjected to intentional infliction of emotional distress when he was not allowed to speak at the two council meetings. Mayor England contends that Plaintiff fails to state a claim of intentional infliction of emotional distress. The court agrees.

To establish a claim for intentional infliction of emotional distress, Plaintiff must show: (1) that Mayor England acted intentionally or recklessly, (2) that Mayor England's conduct was extreme and outrageous, (3) that Mayor England's conduct caused him emotional distress, and (4) that the emotional distress he (Plaintiff) suffered was severe. See Atkinson v. Denton Publishing Co., 84 F.3d 144, 151 (5th Cir. 1996). The Fifth Circuit has held that "[o]nly conduct that is so `outrageous in character and so extreme in degree as to go beyond all possible bounds of human decency, and to be regarded as atrocious and utterly intolerable in a civilized community' will satisfy the second element. . . ." Id. (quoting Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989)). The court makes the determination of whether a defendant's conduct "may reasonably be regarded as extreme and outrageous enough to permit recovery." Id. "Severe distress is that which no reasonable person could be expected to endure . . . and must be more than mere worry, anxiety, vexation, embarrassment, or anger." Huckaby v. Moore, 142 F.3d 233, 242 (5th Cir. 1998). According to Plaintiff, the conduct of Mayor England in refusing to allow him to speak at the two Grand Prairie City Council meetings caused him to experience sleep loss, mental anguish, a general feeling of helplessness, irritability, and road rage. See Plaintiff's Complaint ¶¶ 14, 19. The matters which Plaintiff sets forth in his Complaint are inadequate as a matter of law under Huckaby to show that his emotional distress was sufficiently severe as required. Accordingly, Plaintiff has not set forth any facts on which he could recover for intentional infliction of emotional distress, and his claim therefore must be dismissed.

IV. Conclusion

For the reasons stated herein, Defendants City of Grand Prairie and Mayor Charles England's Motion to Dismiss is denied in part and granted in part. With respect to all federal claims asserted by Plaintiff, the motion is denied because the court cannot conclude beyond doubt that Plaintiff could prove no set of facts in support of these claims. This, of course, does not necessarily preclude summary judgment, but a dismissal under Fed.R.Civ.P. 12(b)(6) is improper. Likewise, Mayor England is not entitled to qualified immunity because the facts do not demonstrate that his conduct was objectively reasonable. With respect to Plaintiff's state claim of intentional infliction of emotional distress, the motion to dismiss is granted, and that claim is dismissed with prejudice.