United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE U.S. DISTRICT COURT JUDGE.
matter comes before the Court on Defendants' Motion for
Summary Judgment. Dkt. 32. Plaintiff Michael Zeyen asserts
Defendants Pocatello/Chubbuck School District #25
(“School District” or “District”),
Century High School, and former Superintendent Mary M. Vagner
violated his constitutional rights when they prohibited him
from entering School District property or attending any
school events. The Court held oral argument on the Motion on
April 10, 2018. For the reasons outlined below, the Court
finds good cause to GRANT the Motion in all respects except
as to a specific portion of Zeyen's First Amendment
4, 2015, Zeyen arrived at Washington Elementary School in
Pocatello, Idaho, in order to take his daughter, then
nine-year-old A.Z., to see Zeyen's attorney. Zeyen and
A.Z.'s mother, Jennifer Lepchenske, are divorced.
Lepchenske had primary physical custody of A.Z. and their
other two children, but Zeyen had some visitation rights.
Zeyen was concerned Lepchenske might reignite the custody
battle, so he planned to take A.Z. to his attorney's
office and have her give an affidavit.
went to the front office of Washington Elementary and
informed the school secretary, Maggie Nielson, that he was
there to pick up A.Z. Shortly thereafter, Zeyen proceeded to
A.Z.'s classroom without receiving verbal confirmation
from Nielson that he could go to the classroom. Zeyen
maintains Nielson gestured to him while she was on the phone
in a way that he understood to mean he could proceed to the
classroom. The parties dispute whether A.Z. had expressed a
desire not to go with Zeyen and how A.Z.'s teacher, Ms.
Wolff, acted when Zeyen arrived at the classroom. The parties
agree Wolff called the police, asked to see Zeyen's
Divorce Decree, and then locked the classroom when Zeyen left
to get the Decree from his car.
Zeyen returned with the Divorce Decree, he tried to open the
classroom door, but it was locked. He then went to a nearby
counselor's office, but the door was also locked. Zeyen
returned to the main office and gave the Divorce Decree to
Nielson, who made a copy of the document. The police arrived
shortly thereafter. Zeyen told the officers he was there to
pick up his daughter and showed them his Divorce Decree. The
Decree states, in relevant part: “Father shall have
visitation with the minor children anytime he is in the [sic]
Pocatello, Idaho, and upon providing appropriate notice to
Mother.” Dkt. 32-6, at 25. One of the officers, Officer
Hancock, reviewed the Decree and asked Zeyen if he had
provided appropriate notice to A.Z.'s mother before
picking up his daughter. Defendants assert Zeyen told Officer
Hancock he had not, while Zeyen maintains he stated he had
provided the required notice. Officer Hancock then order
Zeyen out of the school. Defendants assert Zeyen
“yelled all the way out of the school” and then
got into a “verbal altercation with A.Z.'s
stepfather” outside of the building. Zeyen admits that
he exchanged words with A.Z.'s stepfather. Shortly
thereafter, Lepchenske arrived at the school and checked A.Z.
out for the rest of the day.
that day, Vagner (then Superintendent of the School District)
drafted a letter to Zeyen prohibiting him from
“entering upon any property or school building of the
District” and from attending “any school-related
activities” until he received “further written
notice from this office.” Dkt. 32-6, at 56. The letter
also stated that “[a]ny future communication will be
limited to email and/or written mail through this
office.” Id. Finally, the letter informed
Zeyen that “[t]he personnel at the District Office, the
schools and the transportation department have been advised
of this determination and are required to report your
presence on school property to the Pocatello Police
Department School Resource Officers.” Id.
8, 2015, Zeyen's attorney wrote a letter to Vagner
stating that her decision denied Zeyen's his fundamental
right to participate in his child's education without
providing him with due process of law. Id. at 58-59.
The letter “demand[ed] that [she] reconsider” her
decision and “stop interfering with Mr. Zeyen's
rights to participate in his children's education.”
Id. The letter also “request[ed] an
opportunity to sit down with [Vagner] and discuss the issues
that have arisen.” Id.
responded with another letter on May 20, 2015. Id.
at 61-62. She declined to retract the previous letter,
stating that Zeyen did “not have a right to be on
District property under the circumstances.”
October 2015, Zeyen picked up his eldest daughter, O.Z., a
member of the Century High School band, from the high school
football stadium after she had a panic attack. The panic
attack appears related to sexual harassment O.Z. was
experiencing from a male band student. O.Z. reported the
sexual harassment to the band teacher, Mr. Brien, who did
nothing. Brien also penalized O.Z. for missing band practice
because of her panic attack. Brien contacted Zeyen by phone
to tell him why he was punishing O.Z. Kent Hobbs, the
Director of Student Support Services, then called Zeyen and
told him not to communicate with School District employees
and not to travel to an up-coming off-site band concert.
Hobbs followed up this phone call with a letter referencing
Vagner's 2013 letter and reminding him that any
“communication with district staff will need to be
initiated through the school district administration.”
Dkt. 33-3, at 23.
took O.Z. to their family doctor following her panic attack.
The doctor wrote a note excusing O.Z. from band for the rest
of the year and recommended that O.Z. transfer to a different
25, 2016, Zeyen emailed Douglas Howell, the current
Superintendent of the School District, requesting information
about transferring O.Z. to a different high school. Howell
forwarded the email to administrative secretary Robbi
Marchand. Marchand sent Zeyen a transfer request form. Zeyen
responded to Marchand's email by asking, “Are you
related to Scott Marchand?” Dkt. 32-6, at 38. When
Marchand did not respond, Zeyen sent her a YouTube video
featuring the theme song from Jeopardy. Id. at
40-42. Later that evening, Zeyen sent an email to Howell
stating, “Best wishes to u to Doug.” Id.
at 36. Shortly thereafter, Zeyen sent an email to Howell and
Marchand with the subject line “Mac loses his
mind.” Id. at 35. The email contained a link
to a YouTube video entitled “Mac loses his mind.”
Id. at 43-45. The video depicted a man carrying a
machine gun. Id. The School District contacted the
police about the emails. The police issued an
“electronic media warning” to Zeyen. The School
District also reissued Vagner's 2013 letter barring Zeyen
from District property.
September 6, 2016, the District Clerk received a Notice of
Tort Claim from Zeyen. On October 16, 2016, Zeyen filed this
case. On February 2, 2018, Defendants filed the pending
Motion for Summary Judgment. Also pending before the Court is
a Motion to Strike portions of Zeyen's declaration, which
Zeyen submitted in opposition to the Motion for Summary
Judgment. Dkt. 35.
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). This Court's role at summary judgment is not
“to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Zetwick v. Cty. of Yolo, 850 F.3d 436,
441 (9th Cir. 2017) (citation omitted). In considering a
motion for summary judgment, this Court must “view
the facts in the non-moving party's favor.”
Id. To defeat a motion for summary judgment, the
respondent need only present evidence upon which “a
reasonable juror drawing all inferences in favor of the
respondent could return a verdict in [his or her]
favor.” Id. (citation omitted). Accordingly,
this Court must enter summary judgment if a party
“fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The respondent cannot simply rely on an
unsworn affidavit or the pleadings to defeat a motion for
summary judgment; rather the respondent must set forth the
“specific facts, ” supported by evidence, with
“reasonable particularity” that precludes summary
judgment. Far Out Prods., Inc. v. Oskar, 247 F.3d
986, 997 (9th Cir. 2001).
asserts three claims against Defendants: (1) violation of the
Due Process Clause of the Fourteenth Amendment; (2) violation
of the First Amendment; and (3) violation of Idaho Code
§ 32-1013. Defendants assert summary judgment is
appropriate on the merits of all of these claims. They also
argue that Century High School is an improper party and
Vagner is entitled to qualified immunity. Zeyen has not
argued that Century High School is a proper party in this
case. The Court, therefore, finds good cause to
DISMISS all claims Zeyen has asserted against Century High
School. The Court will address the merits of each of
Zeyen's claims in turn.
Due Process Claim
Process Clause of the Fourteenth Amendment provides that
“[n]o State shall . . . deprive any person of life,
liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. “A threshold requirement
to a . . . procedural due process claim is the
plaintiff's showing of a liberty or property interest
protected by the Constitution.” Wedges/Ledges of
Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir.
1994); Mathews v. Eldridge, 424 U.S. 319, 332
(1976). Ultimately, relief on a federal procedural due
process claim is available only to a plaintiff who can
“establish the existence of ‘(1) a liberty or
property interest protected by the Constitution; (2) a
deprivation of the interest by the government; [and] (3) lack
of process.'” Shanks v. Dressel, 540 F.3d
1082, 1090 (9th Cir. 2008) (quoting Portman v. Cty. of
Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). Zeyen
asserts he has a “fundamental liberty interest . . . to
direct the education, upbringing, and care of his
children.” The Court must determine whether (1) the
Constitution protects this interest, if it does, (2) whether
the government deprived Zeyen of this interest, and, if so,
(3) whether the government failed to give Zeyen due process
in depriving him of that interest.
Court notes that Defendants have creatively couched the
interest at issue to their advantage. Defendants insist Zeyen
has “no fundamental right to be on school
property” and no right “to engage in threatening
behavior on school grounds.” As the plaintiff is
“the master of the complaint, ” Holmes Grp.,
Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S.
826, 831 (2002), the Court must look past this red herring
and analyze Zeyen's asserted liberty interest.
Supreme Court has explicitly characterized “the liberty
of parents and guardians to direct the upbringing and
education of children under their control” as a
“right guaranteed by the Constitution.”
Pierce v. Soc'y of the Sisters of the Holy Names of
Jesus & Mary, 268 U.S. 510, 534-35 (1925). The
Supreme Court has also said that “the interest of
parents in the care, custody, and control of their children .
. . is perhaps the oldest of the fundamental liberty
interests recognized by this Court.” Troxel v.
Granville, 530 U.S. 57, 65 (2000). Based on these
precedential cases, and many others, “it cannot now be
doubted that the Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their
children.” Id. ...