Argued: October 17, 2016
from an interlocutory order of the United States District
Court for the District of Connecticut, Warren W. Eginton,
Judge, which principally denied defendant school
principal's qualified-immunity-based motion for summary
judgment dismissing a claim that defendant violated
plaintiff's First Amendment right of freedom of assembly
in banning plaintiff from attending virtually all school
events, on or off school property, because of his opposition
to defendant's bullying and harassing efforts to compel
plaintiff's daughter to remain a member of the
school's varsity girls basketball team. The district
court denied defendant's summary judgment motion on the
ground that his entitlement to qualified immunity could not
be determined without the resolution of genuinely disputed
questions of fact; the court also sua sponte revived
a previously dismissed claim that defendant's actions
violated plaintiff's right to due process, and sua
sponte ruled that there existed genuine issues of
material fact to be tried with respect to that claim as well.
On appeal, defendant contends that as to both constitutional
claims he was entitled to qualified immunity as a matter of
law, even on the basis of the facts as plaintiff views them.
As to the due process claim, we conclude that the district
court's rulings are not within the scope of
defendant's notice of appeal. As to the First Amendment
claim, we conclude that defendant's motion for summary
judgment was properly denied insofar as plaintiff complains
of being banned from events beyond school property and from
sports contests on school property to which the public is
invited, but that defendant is entitled to qualified immunity
as a matter of law to the extent that plaintiff complains of
being otherwise banned from school property.
in part and reversed in part; appeal dismissed in part.
R. WILLIAMS, New Haven, Connecticut, for Plaintiff-Appellee.
A. MIZERAK, Office of Corporation Counsel for the City of
Hartford, Hartford, Connecticut, for Defendant-Appellant.
Before: KEARSE, JACOBS, and LOHIER, Circuit Judges.
KEARSE, Circuit Judge:
Stephen D. Perry, the principal of Capital Preparatory Magnet
School ("Capital Prep") in Hartford, Connecticut,
appeals from an interlocutory order of the United States
District Court for the District of Connecticut, Warren W.
Eginton, Judge, denying Perry's
qualified-immunity-based motion to dismiss, by summary
judgment, plaintiff Norman Johnson's claims that his
First Amendment right of freedom of assembly and his
state-law right to be free from the intentional infliction of
emotional distress were violated by Perry in banning Johnson
from attending virtually all Capital Prep events, on or off
school property, because of his opposition to Perry's
bullying and harassing efforts to compel Johnson's
daughter to remain a member of the girls varsity basketball
team. The district court denied Perry's summary judgment
motion on the ground that his entitlement to qualified
immunity cannot be determined without the resolution of
genuinely disputed questions of material fact as to
motivation and reasonableness; the court also sua
sponte revived a previously dismissed claim that
Perry's actions violated Johnson's right to due
process, and it noted that there exist genuine issues of
material fact to be tried with respect to that claim as well.
On appeal, Perry challenges the court's decisions on the
First Amendment and due process claims, contending that he is
entitled to qualified immunity as a matter of law, even on
the basis of the facts as Johnson views them.
reasons that follow we dismiss the appeal insofar as it
pertains to the claimed due process violation (see
Part II.A.1. below). Insofar as the appeal pertains to the
First Amendment claim, we conclude that Perry's motion
for summary judgment was properly denied insofar as Johnson
complains of being banned from events beyond school property
and from sports contests on school property to which the
public is invited, but that Perry is entitled to qualified
immunity as a matter of law to the extent that he banned
Johnson from school property otherwise.
is an appeal from the denial of summary judgment, we view the
record in the light most favorable to Johnson as the party
against whom summary judgment was sought. And we describe the
events giving rise to this action as Johnson contends they
occurred, given Perry's assertion of the right to take
this interlocutory appeal on the basis of "the
plaintiff's version of the facts" (Perry brief on
appeal at 4, 9).
Johnson's Daughter Withdraws From the Varsity
2011-2013, Johnson's daughter (to whom we refer as
"JD") was a student at Capital Prep. Capital Prep
required its students to participate in two sports. One of
the sports in which JD participated was basketball. In her
junior and senior years, she was a member of both the junior
varsity ("JV") and varsity teams; but on the
varsity team she received very little playing time. Both
Johnson and his wife Bonnie Johnson ("Bonnie")
urged varsity basketball coach Tammy Millsaps to allow JD to
play more. Johnson approached Millsaps at numerous practices
and games; he said he could work with JD and asked what he
needed to do to improve her play. Millsaps responded simply
that she would not guarantee anyone any amount of playing
time. (See, e.g., Deposition of Norman
Johnson ("Johnson Dep."), at 23-25.)
dissatisfied with her lack of playing time and with
Millsaps's coaching, told her parents she felt she was
being treated unfairly. In January 2013, in her senior year,
she no longer wanted to be a member of the varsity team and
wanted to be only on the JV team, where she actually got an
opportunity to play the game. Her parents said they would
support her decision whatever it was.
varsity basketball game on Saturday January 26, Johnson
attempted once again to speak with Millsaps about more
playing time for his daughter. When Millsaps responded that
she didn't have time and would talk to him some other
time, Johnson told Millsaps that from that moment on, JD
would not be a member of the varsity team and would be
playing only on the JV team. (See Johnson Dep. 38;
id. at 71 ("I said, That's okay. You
don't have to worry about it. She's not playing for
you no more. . . . She'll just play JV.").)
to the end of that game, Johnson and Bonnie had been
discussing their intention to speak to Millsaps about more
playing time for JD. They were overheard by another Capital
Prep player's mother, who chastised them for expecting JD
to play in as "fast paced [a] game as this"
(January 31, 2013 email from Bonnie to Perry) or in "a
high profile game like this" (Johnson Dep. 70). Johnson
told the other mother that he did not appreciate her comment,
but he did not get into an argument with her. (See
id.) The parties dispersed without incident; but during
the evening Bonnie received from the other mother
"threa[ten]ing Instagram messages" (January 31,
2013 email from Bonnie to Perry) and texts to the effect that
JD's playing "sucked" (Johnson Dep. 70).
Johnsons, concerned that JD and the other player, when they
next met, might get into a fight (see,
e.g., id. at 38), asked to meet with
Millsaps, Perry, and the school's Director of Athletics,
Chris Fulton. Bonnie and JD thereafter met with Millsaps and
Fulton, but Perry did not attend. The discussion centered on
JD's desire to withdraw from the varsity team. According
to Bonnie's January 31 email to Perry, Millsaps did not
contribute to the discussion at that meeting; but after
Bonnie departed, Millsaps met with JD alone, said she could
not guarantee JD any playing time, and said she viewed the
entire incident as petty. Bonnie requested another meeting.
Bonnie, and JD then met with Fulton. Perry was again invited,
but did not attend. The Johnsons and Fulton amicably
discussed JD's desire to be only on the JV team, where
she could play, and not to be a member of the varsity team.
At that meeting, "[e]verything was settled, "
meaning that JD "was going to play JV, and that was
it." (Johnson Dep. 27.)
Perry, who had declined the previous requests to attend
meetings with JD and her parents, thereafter proceeded
repeatedly to summon JD from her classes to meet with him in
his office in the absence of her parents. In a span of five
school days, Perry called JD to his office four times. With
Fulton in attendance, Perry attempted to bully JD into
remaining a member of the varsity team. JD--who recorded
Perry's statements--reported to her parents that Perry
"told [JD] that she better suit up and he didn't
want to hear nothing about it no more, that she was going to
play" varsity basketball. (Johnson Dep. 30-31.)
actual opinion, later acknowledged at a meeting attended by
Perry, Johnson, Bonnie, JD, and the president of
Hartford's Parent Teacher Organization ("PTO"),
was that JD's basketball skills, while good, were
"not good enough [for] play at a varsity championship
level" (Johnson's Answer to Perry Interrogatory No.
2). But Perry needed JD to remain on the varsity roster so
that the team would be eligible to compete for the state
championship (see Johnson Dep. 19-20); hence, JD was
being harassed to stay on the team while being told "you
will be playing varsity, and I'm not going to guarantee
you any playing time" (id. at 72).
night of February 6, the Johnsons sent Perry an email
protesting his conduct, requesting a meeting, and demanding
that he end the "bullying and harassment" of JD:
Our names are Norman G. and Bonnie G. Johnson parents of [JD]
Johnson. It is imperative that you acknowledge this
correspondence so that this bullying and harassment
discontinue. On these dates you have pulled [JD] out of class
1/31/13, 2/1/13, 2/5/13, and 2/6/13 to discuss varsity
basketball. After we told you that she is no longer a varsity
basketball team player, due to her being targeted and
harassed by Coach Tammy Millsaps. All of which knew
[sic] or should have known about. Instead you refuse
to acknowledge the phone conversations, the personal visits
and written correspondence made. Instead you have taken [JD]
out of class and demand that she play varsity basketball
ignoring the fact that we told you she was not to play. [JD]
is on the junior varsity team and earning the second sports
credit that is required of her. We are fully aware that [JD]
is being pursued to sit on the bench on the varsity team in
order to complete the roster. That is something she nor we
desire for her to do.
Please consider this as a formal request to meet with all of
the above immediately. We do not expect any retaliation
(mistaken grades) being glared at and having to defend
herself against 3 adults knowing full well she is unevenly
(February 6, 2013 Email from Johnson and Bonnie to Perry.)
The February 7, 2013 Meeting
Thursday February 7, Bonnie called Perry to request a
meeting. Perry then called Johnson to say that Perry was
"sick and tired of hearing of [Bonnie] requesting . . .
meetings." (Johnson Dep. 32.) However, Perry yielded
when Johnson said they were on their way to the school to see
Perry. At the school, Johnson, Bonnie, and JD met with Perry
and PTO president Millie Arcinegas.
began by complaining of Perry's bullying of JD with his
insistence that she remain on the varsity team and suit up
despite her decision to leave the team because she never got
to play. Perry responded by "sa[ying] that [tha]t was
not bullying. Millie told him that yes, it was, " to
which Perry "shrugged his shoulders, like, Really?"
(Johnson Dep. 35.) For most of the rest of the meeting, Perry
repeatedly "talk[ed] over" the other participants,
"divert[ed]" the conversation when asked questions,
and "interrupt[ed]" Johnson repeatedly.
(Id. at 39.) Finally, Johnson asked Perry to answer
just one question:
I asked him if it was true, if he made the following
statement to my daughter: You better suit up; I don't
want to hear no more about it. You will play.
He looked me dead in my face and said, She's a liar and a
And he looked at Millie and he said, You know who to believe.
. . . .
I, in turn, slammed my hand and said, No, you are a liar and
a manipulator, and you are full of crap.
(Id.; see also id. at 73 (Johnson told
Perry "that he was full of shit").) Johnson
testified that as he sat there after making that statement,
Perry "jumped up" and went "crazy":
I'm sitting down just like this. It was at a round table.
He jumped up and started hollering at me and going crazy and
whatnot, and he said that the meeting was over.
Q. Were you sitting the whole time during the meeting?
A. Yes, I was. He told me not to talk to him like that. I
said, It was okay for you to talk to my daughter like that? .
. . . It was all right for you to manipulate my daughter
right in front of us?
Q. So how were you feeling at that meeting? Were you mad,
happy? What was going through your mind at that meeting?
A. I was like, I can't believe this. He made a statement,
and that's probably why he blew . . . .
(Johnson Dep. 40.)
Perry Bans Johnson from Capital Prep Events--On or Off
following Sunday, Johnson received an email from Perry
stating that Johnson was "tres[pa]ssed from"
This letter is to inform you that as of February 10, 2013,
you are tres[pa]ssed from the Capital Preparatory Magnet
School and its events, (including but not limited to
sports both on and off campus), with the exception of
commencement exercises on May 31, 2013; after which the
trespass will be reinstated. Disregarding this correspondence
by coming to school grounds or to an event in which
Capital Prep is a participant, will result in your
Your verbal altercations, physical intimidation and direct
threats to staff have created an unsafe environment for
staff, students and other parents ...