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Barna v. Board of School Directors of Panther Valley School District

United States Court of Appeals, Third Circuit

December 7, 2017

JOHN BARNA, Appellant

          Argued: September 14, 2016

         Appeal 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

          Gary D. Marchalk, Esq. Law Offices of Gary D. Marchalk, LLC Jonathan P. Phillips, Esq. [ARGUED] Counsel for Appellant

          Thomas A. Specht, Esq. [ARGUED] Marshall Dennehey Warner Coleman & Goggin Counsel for Appellees

          Before: CHAGARES, GREENAWAY, JR., and RESTREPO, Circuit Judges



         Plaintiff 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.


         The 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. 129.

         The 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.

         Barna 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.

         On 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 incident.

         Barna 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.

         The 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.

         On 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.

         Barna 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.

         Barna 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).

         The 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 ...

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