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Schultz v. Wilson

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


December 4, 2007

LANCE SCHULTZ, JESSICA STOUFFER, AND ROBERT STOUFFER PLAINTIFFS
v.
KEVIN WILSON, ROBERT GEPHART, SHARON GELWICKS, CHARLES MCGEEHAN, AND FRATERNAL OF EAGLES 1562 DEFENDANTS

The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM ORDER

This civil rights case arises from police activity at the wedding reception of plaintiffs Jessica Stouffer ("Jessica") and Robert Stouffer ("Robert"). Jessica and Robert allege violations of 42 U.S.C. § 1981 and of their First and Fourteenth Amendment rights. Presently before the court are the motion for summary judgment (Doc. 45) of defendant Pennsylvania State Trooper Robert Gebhart*fn1 ("Gebhart") and the motion for summary judgment (Doc. 50) of defendants Charles McGeehan ("McGeehan") and Fraternal Order of Eagles 1562 ("the Eagles").*fn2 For the reasons that follow, the motions will be granted.

I. Statement of Facts*fn3

This case presents a true matrimonial horror for plaintiff-bride Jessica Stouffer. Plaintiffs' claims arise from an altercation that erupted on August 17, 2002, at the wedding reception of Jessica and her newly wedded husband, Robert. (Doc. 57 ¶ 3; Doc. 67 ¶ 1; Doc. 72 ¶ 3; Doc. 76 ¶ 1.) Jessica and her mother had reserved the Eagles Lodge in Gettysburg, Pennsylvania for the reception, which approximately one hundred people attended. (Doc. 57 ¶ 3; Doc. 67 ¶ 1; Doc. 72 ¶ 3; Doc. 74, Ex. 2 at 9; Doc. 76 ¶ 1.) The guest list included immediate family members, extended relatives, parents' friends, and the couple's friends accompanied by significant others. (Doc. 74, Ex. 2 at 13-14, 16; Doc. 47, Ex. 6 at 3, 5; Doc. 74, Ex. 7 at 1-2; Doc. 74, Ex. 8 at 3.)

The Eagles are a local chapter of the Fraternal Order of Eagles, an international charitable and community organization. (Doc. 74, Ex. 5 at 10.) The Lodge holds a license to serve liquor from the Commonwealth of Pennsylvania. (Id. at 11.) The license listed Charles McGeehan, who was secretary of the Eagles and a trustee, as the manager of the Lodge bar at the time of the events of this case. (Id.) The Eagles do not hold the Lodge open to the general public, and only Eagles members may gain access to the bar or use Lodge facilities. (Doc. 74, Ex. 3 at 13.) The Lodge bar was open to both wedding guests and Eagles members on the night of the reception. (Doc. 74, Ex. 2 at 11.)

The reception commenced at approximately 4:00 p.m. (Id. at 9.) McGeehan was present at the bar, as were a number of other individuals unassociated with the reception. (Doc. 74, Ex. 3 at 8; Doc. 74, Ex. 5 at 11, 28.) No manager was on duty. (Doc. 74, Ex. 5 at 12.) McGeehan had not intended to supervise the bar area that evening, but in the absence of a manager, he asserted supervisory authority in his role as trustee.*fn4 (Id. at 12-13.) McGeehan believed that the reception would end by 8:00 p.m. (Id. at 16.) Apparently, the manager who had accepted Jessica's reservation did not specify an ending time, and the reception continued until well after 8:00 p.m.*fn5 (Doc. 74, Ex. 2 at 18-19; Doc. 74, Ex. 5 at 16.)

As the evening progressed, loud music with heavy bass began to play in the reception hall, and McGeehan purportedly referred to it as "nigger music."*fn6 (Doc. 74, Ex. 3 at 21-22.) He also received several complaints from others in the bar about the volume and asked the disc jockey to turn it down several times. (Doc. 74, Ex. 2 at 15; Doc. 74, Ex. 5 at 26-27.) Each time the disc jockey complied, and, ultimately, the bass component of the music was completely turned off. (Doc. 74, Ex. 2 at 15-16.) Between 9:30 and 10:00, Robert approached McGeehan to ask if the wedding guests could continue to use the reception hall past 10:00 p.m. (Doc. 74, Ex. 1 at 17; Doc. 74, Ex. 5 at 17; Doc. 67 ¶ 2; Doc. 76 ¶ 2.) McGeehan refused, and the situation escalated. (Doc. 74, Ex. 1 at 17; Doc. 74, Ex. 5 at 17; Doc. 67 ¶ 3; Doc. 76 ¶ 3.) Robert and McGeehan, both of whom had been consuming alcohol,*fn7 engaged in a heated exchange about the length of the reception during which McGeehan purportedly insulted Robert, referring to him as "little boy."*fn8 (Doc. 74, Ex. 1 at 17.) Robert then turned away and moved toward the door. (Id. at 19.) As he did so, he was punched in the back of the head. (Id. at 19; Doc. 74, Ex. 3 at 7.) He could not identify who hit him, but he nevertheless "spun around with an open hand and hit somebody." (Doc. 74, Ex. 1 at 20; accord Doc. 57 ¶ 8; Doc. 67 ¶ 4; Doc. 72 ¶ 8; Doc. 74, Ex. 3 at 7; Doc. 76 ¶ 4.) The individual was later identified as John Nichols ("Nichols"), a Eagles member and friend of McGeehan who was also Robert's unseen assailant. (Doc. 74, Ex. 3 at 7.) Robert looked to see whom he had struck and was confronted by McGeehan, Nichols, and a third individual. (Doc. 74, Ex. 1 at 21.) During the ensuing confrontation an unidentified male voice cried, "Someone call the cops," and McGeehan did so amidst the ordeal. (Doc. 74, Ex. 3 at 6; Doc. 74, Ex. 5 at 18.) Other patrons in the bar were eventually able to pacify the men, but not before Robert inflicted a noticeable facial injury on Nichols. (Doc. 57 ¶ 8; Doc. 67 ¶¶ 4, 15; Doc. 72 ¶ 8; Doc. 74, Ex. 3 at 8-9; Doc. 76 ¶¶ 4, 15.)

Local police quickly responded to McGeehan's call, and tumult ensued. According to plaintiffs, officers entered the reception with firearms drawn, and at least one wore a gas mask. (Doc. 74, Ex. 2 at 27-28.) "[P]eople [were] yelling and screaming," (Doc. 74, Ex. 3 at 13), and the scene was "just a bunch of mayhem" with "[e]verybody . . . trying to figure out what was going on," (Doc. 74, Ex. 10 at 8-9; see also Doc 74, Ex. 2 at 111-12). One witness recounted that "a groomsman[] fl[ew] across the gift table," but the witness could not identify the source of the groomsman's momentum. (Doc. 74, Ex. 8 at 8-9.) Another recalled "there [being] a lot of confusion," (Doc. 74, Ex. 9 at 6), with "people coming in . . . from everywhere," (id.).

Trooper Gebhart, who was in plain clothes, entered the scene after local police had arrived. (Cf. Doc. 67 ¶ 11; Doc. 76 ¶ 11.) Gebhart was directed into the reception hall by a bartender and another responding officer. (Doc. 67 ¶¶ 11-14; Doc. 76 ¶¶ 11-14.) En route to the hall, he encountered McGeehan and the injured Nichols. (Doc. 67 ¶ 15; Doc. 76 ¶ 15.) The pair informed him of the evening's events and stated that the wedding guests had stayed beyond the period for which the reception hall was reserved. (Doc. 67 ¶ 17-19; Doc. 76 ¶ 17-19.) Gebhart walked into the reception hall, turned on the lights to secure everyone's attention and allegedly barked: "[Y]ou need to get the fuck out." (Doc. 67 ¶ 20; Doc. 74, Ex. 1 at 32; Doc. 74, Ex. 2 at 25; Doc. 74, Ex. 11 at 95, 109; Doc. 76 ¶ 20.) Subsequently, Robert overheard Gebhart mutter: "Where's the groom[?] I want a piece of him."*fn9

(Doc. 74, Ex. 1 at 32.) Gebhart approached Robert, who responded: "[W]ho the hell are you?" (Id. at 32-33.) Something then distracted Gebhart because he then moved away from Robert without further confrontation. (Id. at 33-34.)

The police restored order, and the wedding celebrants disbanded. By the end of the evening, Robert was handcuffed and arrested, but not by Gebhart. (Id. at 34.) Police released Robert later that evening without transporting him to the police station. (Id.) He was convicted of disorderly conduct and simple assault before a district justice, and his summary appeal to the Pennsylvania Court of Common Pleas failed. (Doc. 57 ¶ 14; Doc. 72 ¶ 14; Doc. 74, Ex. 1 at 35-37.) The police handcuffed at least three other people during the ordeal at the Eagles Lodge. (Doc. 74, Ex. 6 at 15-16, 24; Doc. 74, Ex. 11 at 53, 57) Two of them were placed under arrest, including plaintiff Lance Schultz ("Lance").*fn10 (Doc. 74, Ex. 11 at 57).

Jessica and Robert filed a complaint in the instant case on August 17, 2004. Plaintiffs aver that defendants' conduct throughout the evening was motivated by racial animus for their wedding guests, some of whom are African American. (Id. at 80.) None of the plaintiffs or individual defendants are members of a racial minority. (Doc. 57 ¶¶ 1-2, 4; Doc. 72 ¶¶ 1-2, 4.) Jessica never discussed the racial composition of the guest list with the Eagles when reserving the Lodge, and both McGeehan and Gebhart testified that they did not specifically notice that any of the wedding guests were African American. (Doc. 57 ¶ 3; Doc. 58, Ex. E at 32; Doc. 72 ¶ 3; Doc. 74, Ex. 5 at 34.) Plaintiffs nevertheless contend that defendants McGeehan and the Eagles violated 42 U.S.C. § 1981 by requesting police assistance at the Lodge. They claim that McGeehan, Gebhart, and the Eagles violated their First Amendment right of association when defendants dispersed the wedding celebration due to racial motivation.*fn11 Lance and Jessica also brought claims for excessive force and malicious prosecution under the Fourth and Fourteenth Amendments. These claims have been settled or voluntarily dismissed and are not subject to the pending motions. (See Docs. 61, 85.) The parties have thoroughly briefed the remaining issues, which are now ripe for decision.

II. Standard of Review

Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact," and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). It places the burden on the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.

III. Discussion

Plaintiffs Robert and Jessica allege race discrimination by McGeehan and the Eagles in violation of 42 U.S.C. § 1981. They also allege that Gebhart, McGeehan, and the Eagles violated their First Amendment right to association by entering the wedding reception and dispersing the guests.

A. Race Discrimination Claim Pursuant to 42 U.S.C. § 1981

Jessica and Robert, who are Caucasian, claim that McGeehan, who is also Caucasian, and the Eagles committed racial discrimination against them in violation of 42 U.S.C. § 1981. They argue that defendants knew that several of their wedding guests were African American. McGeehan, as secretary and trustee for the Eagles, allegedly called the police because of animus toward those guests.

Section 1981 was enacted to "abolish all the remaining badges and vestiges of the slavery system." Mahone v. Waddle, 564 F.2d 1018, 1030 (3d Cir. 1977). It states, in pertinent part:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1981(a). The statute creates a cause of action against private entities that engage in discriminatory acts. No state action is required. See 42 U.S.C. § 1981(c); Brown v. Philip Morris, Inc., 250 F.3d 789, 797 (3d Cir. 2001). Absent direct evidence of discrimination, "[c]laims brought pursuant to Section[] 1981 . . . follow the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Shipley v. B&F Towing Co., No. Civ.A 04-1530, 2006 WL 1652787, at *2 (D. Del. June 13, 2006); accord Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 385 (3d Cir. 1999) (holding that § 1981 cases are analyzed under burden-shifting McDonnell Douglas framework); Ford v. Veterinary Ctrs. of Am., Inc., No. 00-4604, 2001 WL 1152948, at *3 (E.D. Pa. Sept. 14, 2001). To establish a prima facie case under § 1981, a plaintiff must demonstrate "(1) that he belongs to a [protected racial group]; (2) 'an intent to discriminate on the basis of race by the defendant; and (3) discrimination concerning one or more of the activities enumerated in' § 1981, including the right to make and enforce contracts." Pryor v. Nat'l Coll. Athletic Ass'n, 288 F.3d 548, 569 (3d Cir. 2002) (quoting Brown, 250 F.3d at 797); see also, Shipley, 2006 WL 1652787, at *2.

A plaintiff need not be a member of a racial minority to establish a prima facie case. Caucasian plaintiffs subjected to reverse discrimination may invoke § 1981 against defendants who engage in differential treatment of the plaintiffs on the basis of race. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 286-87 (1976); Hicks v. ABT Assocs., 572 F.2d 960, 967 (3d Cir. 1978) ("[S]section [1981] applies on the same terms to discrimination against . . . whites as it does to discrimination against . . . racial and ethnic minorities."); Wood v. Rendell, No. Civ.A. 94-1489, 1995 WL 676418, at *3 n.7 (E.D. Pa. Nov. 3, 1995). Similarly, "a 'white person who is injured as a result of his or her efforts to defend the rights of non-whites' can bring a claim under § 1981" for retaliation. Altieri v. Pa. State Police, No. Civ.A. 97-CV-5495, 2000 WL 427272, at *14 (E.D. Pa. Apr. 19, 2000) (quoting Alder v. Columbia Historical Soc'y, 690 F. Supp. 9, 15 (D.D.C. 1988)); accord Liotta v. Nat'l Forge Co., 629 F.2d 903, 906-07 (3d Cir. 1980) (holding that defendant's retaliation against plaintiff for supporting the rights of defendant's African American employees could support liability under § 1981). If a § 1981 plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the defendant's conduct. See Shipley, 2006 WL 1652787, at *2; Nichols v. Bennett Detective & Protective Agency, No. Civ.A. 05-55, 2006 WL 1530223, at *4 (D. Del. May 31, 2006). The burden then shifts once again to the plaintiff to demonstrate that the defendant's articulated nondiscriminatory reason was a pretext for discriminatory conduct. See Shipley, 2006 WL 1652787, at *2; Nichols, 2006 WL 1530223, at *4.

In the instant case, Robert and Jessica allege that they fall within the protection of § 1981 because defendants discriminated against them for associating with African Americans. They aver that McGeehan, acting on behalf of the Eagles, called the police to disperse their guests out of racial animus, thereby interfering with their contract for rental of the Lodge reception hall. They suggest that McGeehan's derogatory description of the music played at the reception demonstrates that he acted with discriminatory intent, giving rise to liability under § 1981.

The court finds these allegations insufficient to support an inference of intentional race discrimination by McGeehan and the Eagles. McGeehan's alleged reference to "nigger music" is the only evidence plaintiffs proffer to support their claim that McGeehan acted with racial malice. The court does not overlook the contemptible nature of this alleged reference. Indeed, the racial slur attributed to McGeehan is "highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination." McGinest v. GTE Svc. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004); cf. Moore v. City of Phila., 461 F.3d 331, 344-45 (3d Cir. 2006) (describing language of the type used by McGeehan as a "racially charged epithet[]"); Boyer v. Johnson Matthey, Inc., No. Civ.A. 02-CV-8382, 2005 WL 35893, at *15 (E.D. Pa. Jan. 6, 2005). However, in the factual context of the instant case, it was an isolated derogation uttered to companions. (See supra note 6.) McGeehan never directed it at either plaintiffs or their African American wedding guests. (See id.) None of the plaintiffs personally heard the offensive language. (See id.) During the argument between McGeehan and Robert, McGeehan allegedly delivered several insults against Robert, including calling him "little boy;"*fn12 yet even amidst this hostile exchange, McGeehan never invoked a racial epithet against Robert or his wedding guests. These facts suggest that McGeehan was quite agitated about the circumstances of plaintiffs' wedding reception, but they do not demonstrate that he acted with racial animus.

To the contrary, the evidence indicates that McGeehan's conduct which forms the gravamen of plaintiff's § 1981 claims-calling the police-was undertaken to prevent a potentially dangerous bar brawl. He believed the reception would end by approximately 8:00 p.m., but it was still going strong at 9:30 p.m. Robert, having had several drinks, quarreled with McGeehan about the length of the reception. He turned to walked away and was struck from behind. Rather than identifying the assailant, Robert immediately turned around and struck Nichols without determining whom he was about to hit. Several bar patrons were needed to quell the altercation, and McGeehan called the police amidst this fray. The court holds that, in light of Robert's admitted conduct, no reasonable jury could find that McGeehan called the police for discriminatory reasons. To the contrary, McGeehan did so to control a situation that threatened harm to himself, to the bar patrons, and to the wedding guests. He acted simply to prevent an altercation from escalating into a dangerous and violent melee. Therefore, plaintiffs' claim under § 1981 against McGeehan and the Eagles must fail.

B. First Amendment Claims Pursuant to 42 U.S.C. § 1983

Section 1983 offers private citizens a means to redress violations of federal law committed by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

Id. Section 1983 is not a source of substantive rights and instead provides a method for vindicating rights secured elsewhere in federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). A § 1983 plaintiff must demonstrate that the defendant, while acting under the color of state law, deprived the plaintiff of a federal constitutional or statutory right. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006).

Plaintiffs allege that McGeehan, the Eagles, and Gebhart are liable under § 1983 for violation of their First Amendment right of association. McGeehan and the Eagles argue that their actions were not performed under the color of state law and therefore cannot give rise to § 1983 liability. Gebhart, as a police officer responding to a dispatch call, was clearly acting under the color of state law; however, he contends that his action did not violate plaintiff's First Amendment rights.

1. Defendants McGeehan and Eagles

The purpose of the requirement that a § 1983 defendant act under the "color of state law" is to ensure that civil rights protections are applied only against government actors, who can be held liable for infringing them. This requirement prevents a private entity from becoming subject to § 1983 liability unless it engages in conduct that may be fairly attributed to the state. Mauro v. Beil, 213 F. App'x 131, 132 (3d Cir. 2007). The "color of state law" requirement under § 1983 is coextensive with the state action doctrine of the Fourteenth Amendment. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982); Crissman v. Dover Downs Entm't, Inc., 289 F.3d 231, 233 n.2 (3d Cir. 2002); Cmty Med. Ctr. v. Emergency Med. Svcs., 717 F.2d 878, 879 n.3 (3d Cir. 1983). Therefore, if a party engages in state action for Fourteenth Amendment purposes, it also acts under color of state law as defined by § 1983.

Several approaches exist to the state action analysis, including the symbiotic relationship test and the close nexus test. Under the symbiotic relationship test, a private entity's conduct will constitute state action if "the state [is] implicated in the conduct complained of." Crissman, 289 F.3d at 240; see also Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961) (holding that private party becomes a state actor when the state "has so far insinuated itself into a position of interdependence" with the entity that the entity's conduct is no longer "purely private"). The private entity's conduct must bear the imprimatur of the state to such a degree that the relationship between the two is one of thorough interdependence. See Crissman, 289 F.3d at 240-41 ("[I]f a "symbiotic" relationship . . . exist[s], then, by virtue of the close involvement of the state and interdependence of the actors in the association formed and the challenged activity, the conduct complained of is in fact "fairly attributable" to the state."); see also Burton, 365 U.S. at 862. In contrast, the close nexus test analyzes the impetus behind the private entity's conduct. A private entity will be deemed a state actor if the state is responsible for the party's conduct. See Jackson v. Metro. Edison Co., 419 U.S. 345, 453 (1974) (holding that liability under the close nexus test requires that the private entity's action be "fairly treated as that of the State itself"); cf. Crissman, 289 F.3d at 246 (determining that private entity could not be liable under the close nexus test because the plaintiffs failed to demonstrate that the state was the source of their alleged injury).*fn13

Application of the symbiotic relationship and close nexus tests "frequently admits of no easy answer"; however, a number of bright lines have emerged from these two analyses. Jackson, 419 U.S. at 350. State licensing presents such an area of clarity. Merely holding a state license to engage in a regulated activity does not render a private entity a state actor absent further state activity. See Moose Lodge No. 107 v. Irvis, 407 U.S. 171-72 (1972) (holding that private club does not become a state actor simply because it holds a state-issued licensed to serve alcohol); Crissman, 289 F.3d at 243 ("[S]tate licensing [is] not enough to make a private entity a state actor."); Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d 589, (3d Cir. 1979). Hence, a private club that does not hold itself open to the general public does not act under color of state law solely because it holds a state-issued liquor license. See Moose Lodge, 407 U.S. at 171-72, 74.

In the instant case, defendants Eagles and McGeehan fall squarely within the protection of Moose Lodge. The Eagles are a local chapter of an international fraternal organization and require membership to use Lodge facilities. The general public cannot enter the Lodge or access the bar without first becoming a member of the Eagles. Further, the record contains no evidence that the Commonwealth of Pennsylvania participates in the affairs of McGeehan or the Eagles in any way other than authorizing them to sell alcohol to their members. Without a greater showing of state action, the plaintiffs cannot demonstrating that McGeehan or the Eagles are state actors under either the symbiotic relationship test or the close nexus test. Accordingly, McGeehan and the Eagles cannot be subject to § 1983 liability for the alleged First Amendment violations.

2. Defendant Gebhart

Defendant Gebhart, an on-duty police officer called to an emergency, was clearly acting under the color of state law when he dispersed the wedding reception. Nevertheless, he claims that his actions did not violate Robert and Jessica's First Amendment right of association. The First Amendment protects two types of association: expressive association and intimate association. Plaintiffs have not specified which association right Gebhart allegedly violated; therefore, the court will analyze plaintiffs' claim under both doctrines.

Expressive association protects the ability of individuals to gather for the purpose of pursuing "political, social, economic, educational, religious, and cultural ends." Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984); see also Pi Lambda Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 443 (3d Cir. 2000). To invoke the right, a group "must engage in some form of expression, whether it be public or private" beyond that which is "merely incidental" to the plaintiff's everyday activity. Boy Scouts of Am. v. Dale, 530 U.S. 640, 648, 655 (2000); Pi Lambda, 229 F.3d at 443-44. Mere social relationships receive no protection, and plaintiffs asserting the right of expressive association must be involved in "expressive activity that could be impaired in order to be entitled to protection." Dale, 530 U.S. at 655. Activity that commonly implicates the right includes that which fosters moral development, religious expression, political discourse, community engagement, cultural commentary, and similar civic purposes. Compare City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989) (declaring that social association with strangers at a dance club implicates no right of association), and Pi Lambda, 229 F.3d at 444-45 (holding that college fraternity lacked protection of freedom of association because it engaged in merely social activities), with Dale, 530 U.S. at 649-650 (finding that organization dedicated to instilling values in young people engages in protected expressive activity). The plaintiff's activity need not be primarily expressive, but it must contain an expressive component above the de minimis expression inherent in any human activity. See Pi Lambda, 229 F.3d at 443-45.

In the instant case, Jessica and Robert argue that they engaged in expressive association at their wedding reception by entertaining several African American wedding guests. They assert that this conduct constitutes expression beyond the de minimis level. Gebhart allegedly acted with racial animus against this expression. McGeehan's derogatory reference to the music at the reception allegedly acts as the source of this animus, which he transferred to Gebhart upon the latter's arrival at the Lodge. (See Doc 75 at 5-6.) Gebhart then allegedly disbursed the celebration on the basis of the race of some of the wedding guests. (See id. at 5-6.) Plaintiffs' assert that these acts violated their right of expressive association to celebrate their nuptials with their African American guests.

The record cannot support this claim. Plaintiffs' planning and celebration of their wedding are examples of precisely the type of de minimis activities excluded from the protection of expressive association. Plaintiffs acted wholly for the benefit of themselves and their guests. They lacked any heightened element of political, cultural, or civic expression beyond that contained in ordinary, everyday human activity. The planning of a wedding celebration simply does not implicate the type of cultural, educational, social, or economic expression that is necessary to support an association claim.

Further, the evidence fails to indicate that Gebhart acted out of racial animus. In fact, Robert testified that he never heard Gebhart use racial language of any sort. (Doc. 74, Ex. 1 at 46.) Plaintiffs' allegation that McGeehan's alleged racial animus transferred to Gebhart is wholly unsubstantiated by the record. Gebhart never uttered a racial comment, nor is he alleged to have treated African American wedding guests differently from Caucasian individuals. The mere temporal proximity between McGeehan's derogatory remark and his conversation with Gebhart outside the reception hall fails to demonstrate either that Gebhart knew of McGeehan's comment or that he was motivated by any purpose other than the restoration of order to the reception hall. The record lacks a scintillaof evidence from which racial animus can be inferred on the part of Gebhart. As such, plaintiffs' allegations of racial motivation for Gebhart's conduct are little more than whispers of racial discrimination in what is otherwise a tempest of contrary evidence. The plaintiffs have failed to demonstrate either the existence or violation of a right to expressive association.

Failure to establish an expressive association claim does not prevent plaintiffs from seeking recovery under an intimate association theory. The right of intimate association protects the closest and most interdependent of human relationships against state interference. See Pi Lambda, 229 F.3d at 441-42. It protects relationships that "'by their nature involve deep attachments and commitments to the necessarily few other individuals with whom one shares . . . distinctively personal aspects of one's life.'" Id. (quoting Roberts, 468 U.S. at 619-20); see also Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987). Family bonds represent the quintessential form of intimate association, but the right may also extend to other relationships based on the "'size, purpose, policies, selectivity, [and] congeniality'" of the group among which the relationships occur. Id. at 442 (quoting Roberts, 468 U.S. at 620). There is no specified size beyond which a group ceases to be intimate. Nevertheless, intimacy requires a small, tightly knit group, and gatherings of as few as twenty individuals have been denied intimate association status when they feature only social acquaintanceships. See Duarte, 481 U.S. at 546-47 (holding that local rotary clubs, which varied in size from twenty to nine hundred members, were not protected intimate associations); Pi Lambda, 229 F.3d at 442 (holding that fraternity of twenty-two individuals was too large to qualify as an intimate association, in part because it had sometimes had as many as eighty active members). Plaintiffs allege that Gebhart violated this right out of racial animus.

In the case sub judice, the court finds that Gebhart's actions did not violate Robert and Jessica's right to intimate association. Approximately one hundred people attended the reception. The size of this group alone suggests that the plaintiffs lack the type of close, devoted relationships with all their guests required for an intimate association claim. A review of the guest list confirms this. Although the plaintiffs' close friends and family members attended the reception, also present were many individuals with whom they had only an attenuated relationship. Jessica testified that two of her "mom's friends" were present at the reception, and one of the wedding guests stated that he knew Jessica and Robert only "through [his] girlfriend." (Doc. 74, Ex. 2 at 16; Doc. 74, Ex. 7 at 1-2). Another guest stated that she attended the reception "with . . . Jess's cousin" rather than because of a direct connection to the marital couple. (Doc. 74, Ex. 10 at 3-4.) These types of gossamer connections between individuals do not "involve [the] deep attachments and commitments [between] individuals" necessary to an intimate association claim. Roberts, 468 U.S. at 619-20. Additionally, as discussed above, the record fails to demonstrate that Gebhart acted in furtherance of racially motivated purposes.

Plaintiffs' First Amendment freedom of association claim must fail under either an expressive association or intimate association theory.*fn14

IV. Conclusion

Defendants' actions at Jessica and Robert's wedding reception violated neither § 1981 nor the First Amendment. The motions for summary judgment (Docs. 45, 50) must therefore be granted.

An appropriate order shall issue.

ORDER

AND NOW, this 4th day of December, 2007, upon consideration of the motions for summary judgment (Docs. 45, 50) and the letter filed by plaintiffs' counsel (Doc. 85), and for the reasons discussed in the accompanying memorandum, it is hereby ORDERED that:

1. The motion for summary judgment of defendant Robert Gebhart (Doc. 45) is GRANTED.

2. The motion for summary judgment of defendants Charles McGeehan and Fraternal Order of Eagles 1562 (Doc. 50) is GRANTED.

3. The letter filed by plaintiffs' counsel is CONSTRUED as a motion to dismiss the claims against defendant Kevin Wilson with prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. The motion is GRANTED as so construed.

4. The Clerk of Court is directed to enter JUDGMENT in favor of defendants and against plaintiffs on all claims.

5. The Clerk of Court is directed to CLOSE this case.


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