RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Neinast v. Bd. of Trs. of the No. 02-3482
ELECTRONIC CITATION: 2003 FED App. 0363P (6th Cir.) Columbus Metro. Library et al.
File Name: 03a0363p.06
_________________
UNITED STATES COURT OF APPEALS COUNSEL
FOR THE SIXTH CIRCUIT ON BRIEF: Philomena M. Dane, Johnathan E. Sullivan,
_________________ SQUIRE, SANDERS & DEMPSEY, Columbus, Ohio, for
Appellees. Robert A. Neinast, Pickerington, Ohio, pro se.
ROBERT A. NEINAST , X
Plaintiff-Appellant, - _________________
-
- No. 02-3482 OPINION
v. - _________________
>
, JULIA SMITH GIBBONS, Circuit Judge. Robert A.
BOARD OF TRUSTEES OF THE -
COLUMBUS METROPOLITAN Neinast, a patron of the Columbus Metropolitan Library
- (Library) was evicted from the Library as a result of going
LIBRARY; LARRY D. BLACK; - barefoot. Neinast brought suit against the Board of Trustees
VONZELL L. JOHNSON, - of the Columbus Metropolitan Library (Board) and others
Defendants-Appellees. - under 42 U.S.C. § 1983, claiming violations of his rights
- under the First, Ninth, and Fourteenth Amendments of the
N United States Constitution, Article I of the Ohio Constitution,
Appeal from the United States District Court and Ohio Revised Code § 3375.40. All parties moved for
for the Southern District of Ohio at Columbus. summary judgment. The district court granted summary
No. 01-00443—Algenon L. Marbley, District Judge. judgment in favor of defendants-appellees. For the reasons
set forth below, we affirm the judgment of the district court.
Submitted: August 1, 2003
I.
Decided and Filed: October 10, 2003
Plaintiff-appellant Neinast, a resident of Pickerington,
Before: KENNEDY, GILMAN, and GIBBONS, Circuit Ohio, regularly goes barefoot and often uses the Library.
Judges. Defendant-appellee Board serves as the regulating authority
of the Library and is authorized by Ohio Revised Code
§ 3375.40 to “[m]ake and publish rules for the proper
operation and management of the free public library and
facilities under its jurisdiction, including rules pertaining to
the provision of library services to individuals, corporations,
or institutions that are not inhabitants of the county.”
Defendant-appellee Larry D. Black is the Executive Director
1
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of the Library, and defendant-appellee Vonzell Johnson is the On January 19, 2001, Neinast wrote another letter
Assistant Manager of Security for the Library. Although the expressing his concerns about the prohibition on using the
Patron Regulations of the Library (approved by the Board) do Library without shoes, and on January 30, 2001, Black asked
not contain a prohibition on using the Library without shoes, the Franklin County Prosecutor’s Office “for the legal reasons
the Library’s Eviction Procedure (approved by the Executive that [the Board] can give for requiring its customers to dress
Director) does provide that patrons not wearing shoes be appropriately for a public place.” In a letter dated February
given a warning and be “asked to leave [the] premises to 7, 2001, the prosecutor’s office responded that in accordance
correct the problem.” with Kreimer v. Bureau of Police of Morristown, 958 F.2d
1242 (3d Cir. 1992), “the Library may implement reasonable
On several different occasions between 1997 and 2001, rules for the operation of the Library or the conduct of Library
Neinast was asked to leave the Library for failure to comply business, including a requirement that patrons wear shoes
with the Library’s requirement that patrons wear shoes while while in the library.”
on its premises. Neinast first was asked to leave the Library
for not wearing shoes on September 12, 1997. On November On March 5, 2001, following his one-day eviction from the
10, 2000, Neinast again was informed that he would have to Library on March 2, 2001, Neinast sent another letter to
wear shoes in order to use the Library’s facilities and was Black, the Board, and the prosecutor’s office. On March 12,
asked to leave. On January 23, 2001, Neinast was asked to 2001, Black informed Neinast that he had “been made aware
leave for the same reason. On March 2, 2001, Neinast again that we require our customers to wear shoes while using the
entered the Library barefoot, and subsequently was Columbus Metropolitan Library facilities” and that he had
approached by two security officers and taken to the security been “provided a legal opinion . . . stating that the Library has
desk, where one of the officers, acting under the supervision the legal authority to make and enforce such a rule,” and
of Johnson, presented Neinast with a one-day eviction from concluding that the Library “will not respond to further
the Library. correspondence on this matter.”
After being asked to leave on November 10, 2000, Neinast On April 3, 2001, Neinast, acting pro se, filed a complaint
wrote a letter to Black dated November 16, 2000, and a letter in the Franklin County Court of Common Pleas alleging
to the Board dated December 11, 2000, complaining of the violations of 42 U.S.C. § 1983 based on deprivations of his
enforcement of the Eviction Procedure and the procedure’s First, Ninth, and Fourteenth Amendment rights under the
alleged inconsistency with the Patron Regulations. In a United States Constitution and his rights under Article I of the
response dated December 14, 2000, the Board informed Ohio Constitution. Defendants-appellees removed this case
Neinast that Black had “the authority to make such decisions” to the United States District Court for the Southern District of
and that the Board believed that Black “had made the correct Ohio on May 11, 2001 and filed an answer on May 24, 2001.
one.” According to the Library Organization Policy, Black Neinast filed an amended complaint on June 27, 2001. On
(as the Executive Director) is responsible for “determining July 9, 2001, defendants-appellees filed an answer to the
internal policies and procedures, . . . public relations, relations amended complaint. Both parties then filed motions for
with the community and governmental agencies, and the summary judgment. On March 27, 2002, the district court
handling of all other matters involved with the operation of granted summary judgment in favor of defendants-appellees.
the library system.” Neinast timely filed his notice of appeal on April 25, 2002.
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II. Neinast had a First Amendment right of access to the Library,
but rejected his claim, finding the Board’s requirement that
A district court’s grant of a motion for summary judgment patrons of the Library wear shoes to be “a valid, content-
is reviewed de novo. See Braithwaite v. The Timken Co., 258 neutral regulation that promotes communication of the written
F.3d 488 (6th Cir. 2001). Where the parties have filed cross- word in a safe and sanitary condition.” Neinast v. Bd. of Trs.
motions for summary judgment, this court “evaluate[s] each of Columbus Metro. Library, 190 F.Supp.2d 1040, 1044
motion on its own merits and view[s] all facts and inferences (S.D.Ohio 2002). The district court concluded that “to the
in the light most favorable to the nonmoving party.” Wiley v. extent that it limits Plaintiff’s right of access to speech, the
United States, 20 F.3d 222, 224 (6th Cir. 1994). However, an Library’s shoe regulation satisfies this intermediate scrutiny.”
opponent of a motion for summary judgment “may not rest Id. Neinast now argues that the presence of feces, semen,
upon mere allegations or denials of his pleading, but . . . must blood, and broken glass in or around the library system, as
set forth specific facts showing that there is a genuine issue established by incident reports, fails to represent any danger
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 to barefooted patrons. Neinast asserts that “the shoe policy is
(1986). The party opposing the motion must “do more than substantially broader than necessary, even if one assumes that
simply show that there is some metaphysical doubt as to the the Library’s incidents constitute hazards to barefooted
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio persons.” Neinast also claims that the Board’s claim of a
Corp., 475 U.S. 574, 586 (1986). “If after reviewing the substantial governmental interest in public safety represents
record as a whole a rational factfinder could not find for the “an expansion of the police power beyond its traditional
nonmoving party, summary judgment is appropriate.” boundaries.”
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,
349 (6th Cir. 1998) (citing Matsushita, 475 U.S. at 587). The First Amendment protects the right to receive
information. Stanley v. Georgia, 394 U.S. 557, 564 (1969)
A. (“It is now well established that the Constitution protects the
right to receive information and ideas.”). This right to receive
Neinast claims that the Board’s enforcement of the information “includes the right to some level of access to a
requirement that patrons of the Library wear shoes deprived public library, the quintessential locus of the receipt of
him of his right to receive information under the First and information.” Kreimer v. Bureau of Police for the Town of
Fourteenth Amendments.1 The district court assumed that Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992); see also
Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577, 582
(6th Cir. 1976) (“A library is a mighty resource in the free
1
At the district court level, Neinast also asserted that walking
marketplace of ideas.”); Armstrong v. Dist. of Columbia Pub.
barefoot constituted speech protected by the First Amendment, that the Library, 154 F.Supp.2d 67, 75 (D.D.C. 2001) (noting the
shoe regulation violates his equal protection rights, and that the individual existence of “long-standing precedent supporting plaintiff’s
defendants were not entitled to qualified immunity. The district court First Amendment right to receive information and ideas, and
found that Neinast’s practice of going barefoot in public buildings did not this right’s nexus with access to public libraries”).
qualify as symbolic speech, that his equal protection rights had not been
violated, and that the individual defendants were shielded from liability.
See Nein ast v. B d. of Trs. of Columbus M etro. Library, 190 F.Supp.2d
1044-46, 1048-49 (S.D.Ohio 2002). On appeal, Neinast does not challenge these conc lusions.
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For the purposes of First Amendment analysis, the Library summarized their purpose as “insur[ing] appropriate sound
is a limited public forum. Kreimer, 958 F.2d at 1259; Sund quality balanced with respect for nearby residential neighbors
v. City of Wichita Falls, Texas, 121 F.Supp.2d 530, 548 and the mayorally decreed quiet zone of Sheep Meadow.” Id.
(N.D.Tex. 2000); Mainstream Loudon v. Bd. of Trs. of The Ward guidelines regulation, albeit content-neutral,
Loudon County Library, 24 F.Supp.2d 552, 563 (E.D.Va. restricted the volume of speech, and in so doing, had a direct
1998). As such, the Library “is obligated only to permit the impact on speech. While the Library regulation at issue in
public to exercise rights that are consistent with the nature of this case is also content-neutral, it does not directly impact the
the Library and consistent with the government’s intent in right to receive information. Therefore, applying the
designating the Library as a public forum.” Kreimer, 958 heightened scrutiny standard of Ward to the Library
F.2d at 1262. Traditionally, libraries provide a place for regulation is not appropriate.
“reading, writing, and quiet contemplation.” Id. at 1261. Not
all aspects of a library involve the right to receive Instead we review the Library regulation under a rational
information, however. For example, a library that consisted basis standard. See Thompson v. Ashe, 250 F.3d 399, 407
of a card catalog, a circulation desk, and closed stacks would (6th Cir. 2001) (holding that where there has been no
be perfectly capable of allowing patrons to exercise their right infringement of a fundamental right, review under a rational
to receive information, but would not be a place where basis standard is appropriate); Memphis Am. Fed’n of
patrons could read, write, and quietly contemplate. Teachers, Local 2032 v. Bd. of Ed. of Memphis City Sch., 534
F.2d 699, 703 (6th Cir. 1976) (same). “The rational basis test
As previously noted, the requirement for our consideration requires the court to ensure that the government has employed
provides for the denial of access to the Library based upon a rational means to further its legitimate interest.” Peoples
patron’s failure to wear shoes. In Ward v. Rock Against Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 532 (6th
Racism, the United States Supreme Court reviewed a Cir. 1998). Moreover, “[u]nder the rational basis review, a
regulation in which the government “regulate[d] expression” court usually will uphold regulations because ‘the state’s
according to a heightened standard of scrutiny. 491 U.S. 781, important regulatory interests are generally sufficient to
791 (1989). Moreover, the Court held that “the government justify them.’” Citizens for Legislative Choice v. Miller, 144
may impose reasonable restrictions on the time, place, or F.3d 916, 921 (6th Cir. 1998) (quoting Anderson v.
manner of protected speech, provided the restrictions ‘are Celebrezze, 460 U.S. 780, 788 (1983)). The Library
justified without reference to the content of the regulated regulation survives rational basis review because the
speech, that they are narrowly tailored to serve a significant regulation provides a rational means to further the legitimate
governmental interest, and that they leave open ample government interests of protecting public health and safety
alternative channels for communication of the information.’” and protecting the Library’s economic well-being by seeking
Id. (quoting Clark v. Community for Creative Non-Violence, to prevent tort claims brought by library patrons who were
468 U.S. 288, 293 (1984)). injured because they were barefoot.
In Ward, the Court reviewed use guidelines promulgated by B.
the City of New York that only the City could provide sound
equipment and sound technicians for performances given at Even if we were to conclude that heightened scrutiny is
the Central Park Bandshell. Id. at 788. The guidelines appropriate in the instant case, we believe that the Library
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regulation would meet this standard. The requirement that actually disrupt the Library. . . . Indeed, the district court
patrons of the Library wear shoes is “narrowly tailored to itself implicitly acknowledged this point when it
serve a significant governmental interest” and “leave[s] open modified its order so that it did not invalidate the rule
ample alternative channels for communication of requiring the wearing of shoes, since it can hardly be
information.” Ward, 491 U.S. at 791. imagined that a person simply by being barefoot would
disrupt the Library.
In Kreimer, a homeless man challenged several public
library rules regulating patron behavior, one of which Id. at 1263 n.25.
provided that:
In this case, Neinast argues that he was “using the Library
Patrons shall not be permitted to enter the building for its intended purpose when he was asked to leave, and that
without a shirt or other covering of their upper bodies or his bare feet did not disrupt the library.” As the Third Circuit
without shoes or other footwear. Patrons whose bodily observed in Kreimer, however, “the Library is not confined to
hygiene is offensive so as to constitute a nuisance to prohibiting behavior that is actually disruptive.” 958 F.2d at
other persons shall be required to leave the building. 1264 n.28. Here, according to the Board, the requirement that
patrons of the Library wear shoes was promulgated “in order
958 F.2d at 1248. The district court found the rule to be “null to protect the safety of Library patrons from documented
and void on [its] face” and enjoined the Library from hazards within the Library – including blood, feces, semen
enforcing the rule, but later modified its order, explaining and broken glass that have, on occasion, been found there.”
“that it was not invalidating the rule[] to the extent that [it] Specifically, in an affidavit dated August 2, 2001, Black
required the wearing of shoes or shirts.” Id. at 1250. The stated that he approved the requirement that patrons of the
Library appealed, and the Third Circuit reversed the district Library wear shoes in order to protect “the health and safety
court. The court noted that the Library “has a significant of Library patrons, who may be harmed in the Library if
interest in ensuring that ‘all patrons of the [Library] [can] use allowed to enter barefoot” and “the economic well-being of
its facilities to the maximum extent possible during its the Library, by averting tort claims and litigation expenses
regularly scheduled hours.’” Id. at 1264 (emphasis in stemming from potential claims made by barefoot patrons
original). The court explained that the invalidated portion of who could have suffered injuries that shoes could have
the rule “prohibits one patron from unreasonably interfering
with other patrons’ use and enjoyment of the Library” and
“further promotes the Library’s interest in maintaining its
facilities in a sanitary and attractive condition.” Id. In dicta,
the court added that the Library’s rules need not “condition
exclusion upon actual or imminent disruption.” Id. The court
also suggested that the portion of the rule requiring patrons to
wear shoes would pass constitutional muster:
[I]t seems obvious that the Library may regulate conduct
protected under the First Amendment which does not
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prevented.”2 These concerns qualify as significant on the floor of the reading area (JA 161, 165, 168, 176, 266,
governmental interests. 276, 291), and broken glass in the lobby (JA 185). The Board
also has submitted reports describing incidents where a patron
“Throughout our history the several States have exercised scraped his arm on a staple in the carpet in the meeting room,
their police powers to protect the health and safety of their causing bleeding (JA 260), where a patron’s foot went into a
citizens. Because these are primarily, and historically, . . . gap between the bottom of a door and the ground, causing a
matter[s] of local concern, the States traditionally have had cut (JA 297), and where a barefoot patron’s toe was caught in
great latitude under their police powers to legislate as to the a door, causing bleeding and requiring the assistance of
protection of the lives, limbs, health, comfort, and quiet of all paramedics (JA 301). The Board thus has demonstrated the
persons.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) existence of a significant health and safety risk to individual
(quotations and citations omitted). Here, the Board has barefoot patrons.
provided incident reports documenting various hazards to
barefoot patrons, including the presence of feces on the floor Having established the existence of a significant risk of
of the restroom and in the reading area (JA 133, 153, 163, harm to individual barefoot patrons, this court next must
176, 197, 212, 250, 252, 254, 256, 257), vomit on the floor of determine whether a significant cost to the general public also
the restroom and in the children’s area (JA 170, 224), broken has been shown. “To justify the state in . . . interposing its
ceiling tiles on the floor of the restroom (JA 134), splintered authority in behalf of the public, it must appear – First, that
chair pieces in the children’s area (JA 140), drops of blood on the interests of the public . . . require such interference; and,
the floor of the restroom (JA 184), urine in the elevator, on second, that the means are reasonably necessary for the
the floor of the bathroom, on a chair in the reading area, and accomplishment of the purpose, and not unduly oppressive
upon individuals.’” Fair Hous. Advocates Ass’n, Inc. v. City
of Richmond Heights, Ohio, 209 F.3d 626, 643 (6th Cir.
2
Neinast argues that the Board’s stated interests are not genuine and 2000) (quoting Lawton v. Steele, 152 U.S. 133, 137 (1894)).
notes that the Eviction Guidelines refer only to “[i]nappropriate dress,” Courts consistently have upheld statutes primarily directed at
while making no m ention of health and safety or economic well-being. preventing injury to an individual on the basis of the impact
There is some evidence in the record suggesting that the Board had an
interest in requiring pro per attire. As previously mentio ned, in a letter to
upon the general public. See, e.g., Picou v. Gillum, 874 F.2d
the Franklin County Prosecutor’s Office dated January 30, 2001, Black 1519, 1522 (11th Cir. 1989) (noting that although the
requested “the legal reasons that [the Library] can give for requiring its “primary aim” of a state statute requiring motorcycle riders to
customers to dress appropriately for a public place.” As the Supreme wear protective headgear “is prevention of unnecessary injury
Court has noted, in the intermediate scrutiny context the state is expected to the cyclist himself,” the “costs of this injury may be borne
“to give its real reasons for passing an ordinance.” Watchtower Bible and by the public”).
Tract Soc’y of New York, Inc. v. Vill. of Stratton, 536 U.S. 150, 170
(2002) (Breyer, J., concurring). However, the Court also explained that
the state may “rely on the rationale in the courts below,” as long as the Here, the Board’s stated rationale for its requirement that
reviewing court itself “does not supply reasons.” Id. at 169-70. In this patrons of the Library wear shoes is not only to protect
case, the interests advanced by the Bo ard in the district court and on individual barefoot patrons from harm to themselves, but also
appeal are reflected in Black’s affidavit. Neither the d istrict court nor this to protect the general public “by averting tort claims and
court manu factured these reasons. Consequently, consideration of the
Bo ard’s stated interests in health and safety and econ omic well-being is
litigation expenses stemming from potential claims by
appropriate. barefoot patrons who could have suffered injuries that shoes
No. 02-3482 Neinast v. Bd. of Trs. of the 13 14 Neinast v. Bd. of Trs. of the No. 02-3482
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could have prevented.” Avoiding the expense of litigation is occasion feces was found among the books (JA 212), that on
a legitimate governmental interest. See Listle v. Milwaukee one occasion vomit was found in the children’s area (JA 224),
County, 138 F.3d 1155, 1160 (7th Cir. 1998). Injuries that on one occasion splintered pieces of a chair were found
suffered by individual barefoot patrons of the Library also in the children’s area (JA 140), that on three occasions urine
impose broader societal costs. In this case, the Board has was found in the elevator and in the reading area (JA 161,
presented evidence that on at least one occasion paramedics 266, 291), that on one occasion broken glass was found in the
were summoned to assist a barefoot patron who suffered an lobby (JA 185), and that on one occasion a staple was found
injury to her feet while in the Library. Describing the costs in the carpet of the reading room (JA 260). In light of the fact
borne by the general public as a result of the failure of that the Board has documented the presence of hazards
motorcyclists to wear helmets, the Eleventh Circuit explained throughout the Library buildings, we find the requirement that
that “[s]tate and local governments provide police and patrons wear shoes to be narrowly tailored.
ambulance services, and the injured cyclist may be
hospitalized at public expense.” Picou, 874 F.2d at 1522. Finally, the requirement that patrons wear shoes leaves
Similarly, in this case barefoot patrons of the Library who are open alternative channels for communication. “[S]o long as
injured as a result of the hazards previously described impose a patron complies with the rules, he or she may use the
costs on the general public. For these reasons, we conclude Library’s facilities.” Kreimer, 958 F.2d at 1264. In this case,
that the Board has demonstrated a significant governmental as long as Neinast wears shoes, he may receive information
interest in requiring that patrons of the Library wear shoes. in the Library. Consequently, Neinast may be prohibited
from going barefoot while in the limited public forum of the
In addition, the Board’s requirement that patrons of the Library.
Library wear shoes is sufficiently narrow. In order to satisfy
the “narrowly tailored” requirement, a regulation “need not be C.
the least restrictive or least intrusive means” of serving the
government’s legitimate, content-neutral interests. Ward, 491 Neinast asserts that the Board’s enforcement of the
U.S. at 798. All that is required is “a fit that is not necessarily requirement that patrons of the Library wear shoes deprived
perfect, but reasonable; that represents not necessarily the him of his right of personal appearance under the First, Ninth,
single best disposition but one whose scope is in proportion and Fourteenth Amendments. Specifically, Neinast argues
to the interest served.” Bd. of Trs. of State Univ. of New York that the district court erred by failing “to recognize, as a
v. Fox, 492 U.S. 469, 480 (1989) (quotation omitted). matter of law, the existence of the right of personal
Neinast argues that the requirement that patrons of the Library appearance, either as a fundamental right or as a protected
wear shoes is not narrowly tailored because although the liberty interest.” Neinast claims that while rational basis
documented hazards occurred “almost exclusively in the review may be appropriate in situations involving government
restrooms or outside the Library building,” the challenged employees, the instant case requires strict scrutiny, since it
provision requires that patrons wear shoes “everywhere in the involves “a member of the general public.”
Library buildings, even amongst the books.” Close scrutiny
of the record, however, reveals that hazards to barefoot In Kelley v. Johnson, 425 U.S. 238 (1976), the Supreme
patrons can be found throughout the Library buildings. Court observed that “whether the citizenry at large has some
Specifically, the Board has provided evidence that on one sort of ‘liberty’ interest within the Fourteenth Amendment in
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matters of personal appearance is a question on which this Peotone, 903 F.2d 510, 514 (7th Cir. 1990) (reviewing village
Court’s cases offer little, if any, guidance.” Kelley, 425 U.S. regulation prohibiting off duty police officers from wearing
at 244. Although the Court went on to assume, for the ear studs under rational basis test).
purposes of the case, that a liberty interest existed, it did not
affirmatively acknowledge such an interest. Id. However, a “Even foolish and misdirected provisions are generally
considerable body of precedent suggests the existence of a valid if subject only to rational basis review.” Craigmiles v.
liberty interest in one’s personal appearance. Giles, 312 F.3d 220, 223-24 (6th Cir. 2002). Consequently,
this court will not overturn the Board’s requirement that
In general, “[l]iberty under law extends to the full range of patrons of the Library wear shoes unless the varying treatment
conduct which the individual is free to pursue.” Bolling v. of barefoot persons “is so unrelated to the achievement of any
Sharpe, 347 U.S. 497, 499 (1954); see also Poe v. Ullman, combination of legitimate purposes that we can only conclude
367 U.S. 497, 543 (1961) (Harlan, J., dissenting) (describing that the [Board’s] actions were irrational.” Kimel v. Florida
liberty as “a rational continuum which, broadly speaking, Bd. of Regents, 528 U.S. 62, 84 (2000) (quotation omitted).
includes a freedom from all substantial arbitrary impositions In order to prevail, Neinast must negate “every conceivable
and purposeless restraints”). Other circuits specifically have basis that might support” the requirement that patrons wear
found the existence of a liberty interest in personal shoes. Craigmiles, 312 F.3d at 224 (quoting Lehnhausen v.
appearance. See DeWeese v. Town of Palm Beach, 812 F.2d Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). Here,
1365, 1367 (11th Cir. 1987) (prohibiting shirtless male jogger as previously discussed, the Board has made the reasonable
unreasonable); Domico v. Rapides Parish Sch. Bd., 675 F.2d determination that the requirement that patrons of the Library
100, 101 (5th Cir.1982) (noting that “there is a constitutional wear shoes is necessary to protect both “the health and safety
liberty interest in choosing how to wear one’s hair”). “[S]ince of Library patrons, who may be harmed in the Library if
Kelley, the nation’s courts have assumed or found [a liberty allowed to enter barefoot,” and “the economic well-being of
interest] in a veritable fashion show of different factual the Library, by averting tort claims and litigation expenses
scenarios.” Zalewska v. County of Sullivan, New York, 316 stemming from potential claims made by barefoot patrons
F.3d 314, 321 (2d Cir. 2003). who could have suffered injuries that shoes could have
prevented.” Consequently, the Board’s requirement that
Assuming the existence of a liberty interest in personal patrons of the Library wear shoes satisfies rational basis
appearance, we must next determine whether the Board review.
unconstitutionally infringed upon Neinast’s liberty interest by
mandating that he wear shoes in the Library. The Sixth D.
Circuit previously has held that personal appearance is not a
fundamental right. See Gfell v. Rickelman, 441 F.2d 444, 446 Neinast claims that Black presently is “enforcing a barefoot
(6th Cir. 1971) (“We are unable to agree with some courts policy that is not authorized by State Law” or by the Board,
that the freedom of choosing one’s hair style is a fundamental and that Johnson “enforced that barefoot policy in a manner
right.”). Since the Board’s requirement that patrons of the sanctioned by neither State Law, nor the Eviction Procedure,”
Library wear shoes does not implicate a fundamental right, it thereby depriving Neinast of procedural due process. These
is subject to rational basis scrutiny. See DeWeese, 812 F.2d claims lack merit.
at 1367; see also Domico, 675 F.2d at 102; Rathert v. Vill. of
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First, Neinast cannot base his procedural due process claim of state law – namely, the amount of rulemaking authority the
on the Board’s allegedly “improper adoption of a rule of Board properly can delegate to its Executive Director under
general applicability.” Reichelt v. Gates, 967 F.2d 590, 1992 Ohio Revised Code § 3375.40 – and thus falls outside the
WL 127057, at *2 (9th Cir. June 11, 1992) (citing United scope of § 1983.
States v. Florida East Coast Ry. Co., 410 U.S. 224, 244-46
(1973)). “Governmental determinations of a general nature With regard to his second claim, Neinast argues that the
that affect all equally do not give rise to a due process right to procedures employed by Johnson when serving Neinast with
be heard.” Nasierowski Bros. Inv. Co. v. City of Sterling a one-day eviction from the Library departed from the
Heights, 949 F.2d 890, 896 (6th Cir. 1991). Since the Eviction Procedure, thereby depriving him of procedural due
requirement that all patrons of the Library wear shoes is of process. The Eviction Procedure states that patrons wearing
general applicability, Neinast’s procedural due process rights “inappropriate dress, to include but not be limited to: no shirts
have not been violated with respect to the provision’s and no shoes” are to be “asked to leave [the] premises to
adoption. correct the problem.” After violating this provision on
March 2, 2001, however, Neinast was served with a one-day
Neinast admits that the Board “properly promulgated their eviction for a violation described as “improper dress/staff
Patron Regulations,” but observes that the Patron Regulations harassment.”
themselves contain no express requirement that patrons of the
Library wear shoes. However, the issue of whether the While “[t]he touchstone of due process is protection of the
Board’s delegation of authority to the Executive Director to individual against arbitrary action of government,” Wolff v.
establish the Eviction Procedures was proper is a matter of McDonnell, 418 U.S. 539, 558 (1974), the fact that Johnson
state law. Section 1983, upon which Neinast bases his claim, did not follow the Eviction Procedure, standing alone, does
authorizes courts to redress violations of “rights, privileges, not establish a denial of due process. “Due process of law
or immunities secured by the Constitution and [federal] laws” guarantees ‘no particular form of procedure; it protects
that occur under color of state law. “The statute is thus substantial rights.’” Mitchell v. W. T. Grant Co., 416 U.S.
limited to deprivations of federal statutory and constitutional 600, 610 (1974) (quoting NLRB v. Mackay Co., 304 U.S. 333,
rights. It does not cover official conduct that allegedly 351 (1938)). It is unclear what level of process Neinast
violates state law.” Huron Valley Hosp., Inc. v. City of claims he was entitled to receive. The Supreme Court has
Pontiac, 887 F.2d 710, 714 (6th Cir. 1989) (citing Baker v. observed that “‘[d]ue process is flexible and calls for such
McCollan, 443 U.S. 137, 146 (1979)). Neinast concedes that procedural protections as the particular situation demands.’”
the Board’s delegation of authority to Black “regarding Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting
internal polices and procedures” was proper, but argues that Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). At a
Black “was not granted the authority to create and enforce an minimum, however, “‘[p]arties whose rights are to be affected
external regulation.”3 Neinast’s claim turns upon a question are entitled to be heard; and in order that they may enjoy that
right they must first be notified.’” Goss v. Lopez, 419 U.S.
3
Neinast mischaracterizes the extent of the authority granted to Black
by the Board . As previously noted , Black was not merely limited to relations, relations with the community, . . . and the handling of all other
“internal policies and procedures,” b ut also was responsible fo r “pub lic matters involved with the operation of the library system.”
No. 02-3482 Neinast v. Bd. of Trs. of the 19
Columbus Metro. Library et al.
565, 579 (1975) (quoting Baldwin v. Hale, 1 Wall. 223, 233,
17 L.Ed. 531 (1864)). Here, immediately prior to Neinast’s
eviction on March 2, 2001, Chris Taylor (another employee
of the Library) and Johnson discussed the eviction procedure
with Neinast. Neinast was notified of the charges against him
by Johnson, who stated that “he was harassing the staff by
continuing to come in without his shoes on.” Neinast
expressed his disagreement and “reminded [Taylor and
Johnson] that [the Library’s] procedure only states that [the
Library] may ask him to leave.” Neinast thus was provided
with notice of the charges against him and “‘an opportunity
to present his side of the story.’” Boals v. Gray, 775 F.2d
686, 690 (6th Cir. 1985) (quoting Goss v. Lopez, 419 U.S.
565, 581 (1975)). Regardless of what procedure is generally
due when a patron of a public library contests charges giving
rise to a proposed short-term eviction, under the particular
facts of this case the procedure by which Neinast was evicted
was constitutional. Consequently, summary judgment for
defendants-appellees was proper.
III.
For all of the foregoing reasons, we affirm the judgment of
the district court.