Argued: September 14, 2016
from the United States District Court for the Middle District
of Pennsylvania (D.C. Civil Action No. 3-12-cv-00638)
District Judge: Honorable Robert D. Mariani
D. Marchalk, Esq. Law Offices of Gary D. Marchalk, LLC
Jonathan P. Phillips, Esq. [ARGUED] Counsel for Appellant
A. Specht, Esq. [ARGUED] Marshall Dennehey Warner Coleman
& Goggin Counsel for Appellees
Before: CHAGARES, GREENAWAY, JR., and RESTREPO, Circuit
CHAGARES, CIRCUIT JUDGE.
John Barna filed a lawsuit under 42 U.S.C. § 1983
alleging that the Panther Valley School Board ("School
Board" or "Board") and several of its
officials violated his First Amendment rights by
categorically banning him from attending Board meetings after
he was threatening and disruptive on several occasions. The
Board and the individual officials moved for summary
judgment. The District Court granted the motion, holding that
although the Board's ban violated Barna's
constitutional rights, qualified immunity shielded both the
Board and the officials from liability for damages. For the
reasons set forth below, we will affirm in part, vacate in
part, and remand for further proceedings.
relevant facts are not in dispute. Barna attended a School
Board meeting on April 8, 2010, at which he expressed concern
about a particular school district contract. Barna mentioned
that he and his friends were confused by the contract, which
they perceived as a waste of public resources. School Board
President Jeffrey Markovich responded by suggesting that
Barna bring his friends to the next meeting. Barna replied:
"You wouldn't like that. Some of my friends have
guns." Joint Appendix ("J.A.") 129. Barna
asserted at his deposition that this remark was a joke. J.A.
Board held another meeting on April 22, 2010. Before the
meeting began, Markovich told Barna: "Since you say that
you have friends with guns, I'm going to have to ask you
to leave." J.A. 130. Markovich reiterated a similar
message once the meeting began. While exiting the meeting,
Barna stated: "Don't laugh. I may have to come after
all of yous." J.A. 130. Some meeting attendees construed
the remark as a threat.
alleges that after leaving the meeting room, David Hiles, a
Board member standing in the hallway, made threatening
gestures toward him. A security guard restrained Barna as he
attempted to follow Hiles. Barna then returned to the Board
room and stated that Hiles "just threatened [his]
life." J.A. 131.
April 27, 2010, Rosemary Porembo, the school district
superintendent, informed Barna by letter that he could attend
Board meetings but would be banned from future attendance if
he engaged in any threatening or disorderly conduct. Barna
subsequently attended several Board meetings without
attended another Board meeting on October 12, 2011. Barna
raised his voice and became confrontational after being
denied the opportunity to ask questions. Markovich stood up
at some point, which Barna apparently interpreted as an
invitation to fight. Barna stated: "Do you want to
fight? Let's go." J.A. 133. Barna admitted that
during the meeting he "blew [his] top" and was
"just mad." J.A. 133.
Board convened again the next day, at which point Barna
apologized for his conduct to some, but not all, of the Board
members. During a brief recess at the meeting, Barna uttered
"[s]on of a bitch" within earshot of meeting
attendees, including some children. J.A. 135.
October 18, 2011, the Board solicitor, Robert Yurchak, sent
Barna a letter barring him from attending all Board meetings
or school extracurricular activities because his conduct had
become "intolerable, threatening and obnoxious" and
because he was "interfering with the function of the
School Board." J.A. 292. Barna was also banned from
"be[ing] physically present" on the Panther Valley
campus. J.A. 292. Barna was, however, permitted to submit
"reasonable and responsible" written questions to
the Board, which would be answered in a timely manner. J.A.
292. A Board member testified that he did not believe that
there was any other way of "correct[ing] the problems
that the Board had with Mr. Barna." J.A. 249.
did not write to the Board with any questions or comments
after receiving the letter, although he did request and
obtain audiotapes of Board meetings. J.A. 136. When asked why
he had made no additional requests, Barna testified that he
"gave up" because he was no longer permitted to
attend Board meetings. J.A. 136.
filed this suit on April 5, 2012, and filed an amended
complaint the following day, naming as defendants the School
Board and individual Board officials Anthony Demarco, David
Hiles, William Hunsicker, Jeffrey Markovich, Koreen Nalesnik,
Anthony Pondish, and Donna Trimmel. Barna alleged violations
of his First Amendment right to free speech (Count 1) and
violations of his First and Fourteenth Amendment rights to be
free from unconstitutional prior restraint (Count 2).
Board and the officials moved for judgment on the pleadings,
and the officials moved for dismissal based on qualified
immunity. The District Court denied these motions on October
15, 2013. The Board and the individual officials later moved
for summary judgment. The District Court referred the matter
to a Magistrate Judge, who recommended granting summary
judgment in favor of the defendants. Barna timely objected.
The District Court ordered supplemental briefing and oral
argument. During oral argument on April 10, 2015, the parties
agreed that there were no disputes of material fact. J.A. 9
n.1. Barna moved for summary judgment on ...