UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TENNESSEE
`AT KNOXVILLE
`
`No.:
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`3:06-CV-86
`(VARLAN/SHIRLEY)
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`D.B., a minor, by and through his parent
`and guardian, SHARON BROGDON,
`and SHANA MILLER,
`
`Plaintiffs,
`
`v.
`
`STEVE LAFON, in his individual and
`official capacities; MARK WILLIAMSON,
`in his individual and official capacities, and
`BLOUNT COUNTY SCHOOL BOARD,
`
`Defendants.
`
`MEMORANDUM OPINION
`
`Plaintiffs, two students at William Blount High School in Blount County, Tennessee,
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`allege defendants, Blount County school officials, harassed them in retaliation for D.B.’s
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`initiation of a federal civil action against defendants Lafon and Blount County School Board.
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`This civil action is now before the Court for consideration of plaintiffs’ motion for
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`preliminary injunction and temporary restraining order [Doc. 2]. Plaintiffs seek an order
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`requiring that:
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`Shana Miller be transferred out of defendant Williamson’s class, that
`defendants Williamson and Lafon stay at least fifty feet away from Ms. Miller
`and DB, that defendants Williamson and Lafon make no attempt to
`communicate directly or indirectly with Ms. Miller or DB, and that any
`administrative or disciplinary matters involving Shana or DB be handled by
`school officials other than defendants Williamson or Lafon.
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`Doc. 2 at 1-2. Plaintiffs argue that a preliminary injunction is appropriate because Ms. Miller
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`will suffer irreparable harm without it, a preliminary injunction would have a minimal effect
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`Case 3:06-cv-00086 Document 23 Filed 07/28/06 Page 1 of 9 PageID #: 4
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`EASTERN DISTRICT OF TENNESSEE
`AT KNOXVILLE
`
`No.:
`
`3:06-CV-86
`(VARLAN/SHIRLEY)
`
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`))
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`))
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`D.B., a minor, by and through his parent
`and guardian, SHARON BROGDON,
`and SHANA MILLER,
`
`Plaintiffs,
`
`v.
`
`STEVE LAFON, in his individual and
`official capacities; MARK WILLIAMSON,
`in his individual and official capacities, and
`BLOUNT COUNTY SCHOOL BOARD,
`
`Defendants.
`
`MEMORANDUM OPINION
`
`Plaintiffs, two students at William Blount High School in Blount County, Tennessee,
`
`allege defendants, Blount County school officials, harassed them in retaliation for D.B.’s
`
`initiation of a federal civil action against defendants Lafon and Blount County School Board.
`
`This civil action is now before the Court for consideration of plaintiffs’ motion for
`
`preliminary injunction and temporary restraining order [Doc. 2]. Plaintiffs seek an order
`
`requiring that:
`
`Shana Miller be transferred out of defendant Williamson’s class, that
`defendants Williamson and Lafon stay at least fifty feet away from Ms. Miller
`and DB, that defendants Williamson and Lafon make no attempt to
`communicate directly or indirectly with Ms. Miller or DB, and that any
`administrative or disciplinary matters involving Shana or DB be handled by
`school officials other than defendants Williamson or Lafon.
`
`Doc. 2 at 1-2. Plaintiffs argue that a preliminary injunction is appropriate because Ms. Miller
`
`will suffer irreparable harm without it, a preliminary injunction would have a minimal effect
`
`Case 3:06-cv-00086 Document 23 Filed 07/28/06 Page 1 of 9 PageID #: 4
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`
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`on defendants, plaintiffs are likely to succeed on the merits of their claims, and imposition
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`of a preliminary injunction is not adverse to the public interest. See id. at 4-7. Defendants
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`respond in opposition to the motion, generally rebutting each of plaintiffs’ arguments. See
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`Doc. 7 at 3-9.
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`The issues have been briefed, the Court has reviewed the record and legal authorities,
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`and the motion is now ripe for disposition. For the reasons discussed herein, the Court will
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`deny plaintiffs’ motion.
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`I.
`
`Relevant Facts
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`The Blount County Board of Education has adopted a dress code that applies to all
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`high school students. See Doc. 7-4 at 5. That dress code prohibits students from wearing
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`certain items, including the following:
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`b. torn, cut-off, or damaged clothing.
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`. . . .
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`f. clothing which exhibits written, pictorial, or implied references to illegal
`substances, drugs or alcohol, negative slogans, vulgarities, or causes disruption
`to the educational process; wearing apparel that is sexually suggestive or that
`features crude or vulgar commercial lettering or printing and/or pictures that
`depict drugs, tobacco, alcohol beverages, racial/ethnic slurs or gang affiliation
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`. . . .
`
`Id.
`
`On March 2, 2006, plaintiff D.B. and two other students initiated a federal civil action
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`in this Court alleging violations of their First and Fourteenth Amendment rights because
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`defendants Lafon and Blount County School Board prohibited them from wearing clothing
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`2
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`Case 3:06-cv-00086 Document 23 Filed 07/28/06 Page 2 of 9 PageID #: 5
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`
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`at school that depicts the confederate battle flag. See D.B. ex rel. Brogdon v. Lafon, et al.,
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`3:06-CV-75 (E.D. Tenn.). The defendants in that case banned depictions of the confederate
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`battle flag because it allegedly “causes disruption to the educational process,” which violates
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`section 4f of the dress code. Neither plaintiff Miller or defendant Williamson are parties to
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`that civil action. See id.
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`On March 3, 2006, shortly after defendant Lafon was served with process in that case,
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`defendant Williamson sent plaintiff Miller, who is plaintiff D.B.’s girlfriend, and several
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`other students who are not parties to either civil action to the principal’s office for reported
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`violations of the dress code. See Doc. 1 at 3. There is no allegation that plaintiff D.B. was
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`among the group sent to the principal’s office. See id. While at the principal’s office,
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`defendant Lafon told plaintiff Miller that her ripped jeans violated the dress code,
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`presumably referring to section 4b of the dress code. See id.
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`Plaintiffs allege that defendant Lafon “forced Miller to pose while Lafon took close-
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`up pictures of Miller’s thighs.” Id. at 3. In a declaration in support of the complaint, plaintiff
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`Miller alleges that she began to cry when defendant Lafon took the photographs and that she
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`told defendant Lafon she felt humiliated, but defendant Lafon responded by threatening to
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`escort her from the school grounds if she did not cooperate. Doc. 1-2 at 1. Plaintiff Miller
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`also states that defendant Lafon told her to lift her arms and continued taking pictures despite
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`her objections. Id. Plaintiff Miller also notes that this incident took place where no other
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`students or school officials were present and that none of the other students were
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`photographed in this way. Id. at 2. Finally, as a result of these events, plaintiff Miller
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`3
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`Case 3:06-cv-00086 Document 23 Filed 07/28/06 Page 3 of 9 PageID #: 6
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`
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`complains that she has suffered humiliation, which has required her to seek medical attention
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`and has prevented her from returning to school. Id. According to an affidavit submitted by
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`defendant Williamson in support of an unrelated motion, plaintiff Miller transferred to
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`another high school on March 22, 2006. See Doc. 11-3 at 2.
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`Plaintiffs do not allege that plaintiff D.B. experienced a similar incident, but the
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`complaint alleges, “The events described above represent an escalation of harassment
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`directed toward the plaintiffs and other students involved in litigation [related to the
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`confederate battle flag] in this Court . . . .” Doc. 1 at 4. Thus, based on the events just
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`discussed, plaintiffs allege three violations of plaintiffs’ civil rights, actionable under 42
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`U.S.C. § 1983. Specifically, plaintiffs allege a violation of their First Amendment right to
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`petition for redress of grievances and two violations of Fourteenth Amendment Due Process
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`Clause arising from plaintiffs’ denial of a public education and enforcement of a vague and
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`overbroad dress code policy. See id. at 4-7. Plaintiffs also allege the Tennessee torts of
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`intentional infliction of emotional distress, false imprisonment, and assault. See id. at 7-8.
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`In response to the instant motion, defendant Lafon filed an affidavit in which he
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`generally denies plaintiffs’ characterization of the incident involving plaintiff Miller. See
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`Doc. 7-2 at 1-3. He explains that defendant Williamson sent four students, including plaintiff
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`Miller, to the Student Affairs Office for violating the dress code. See id. at 2. Defendant
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`Lafon asserts that he explained to the students that their options for remedying the dress code
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`violation were to change clothes, participate in in-school suspension, or go home. See id.
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`According to defendant Lafon, three students chose one of the options, but plaintiff Miller
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`4
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`Case 3:06-cv-00086 Document 23 Filed 07/28/06 Page 4 of 9 PageID #: 7
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`
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`protested that she had not violated the dress code. See id. Nevertheless, plaintiff Miller
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`asked whether she could get a change of clothes from her boyfriend, and defendant Lafon
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`said that she could, but she would have to wait until he came to the office. See id.
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`Defendant Lafon states that plaintiff Miller continued to protest and “pressed the issue
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`for approximately twenty or thirty minutes.” Id. at 2. Defendant Lafon asked Ms. Jennifer
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`Moore, the substitute assistant principal, to “give her a second opinion.” Id. According to
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`defendant Lafon, and corroborated by Ms. Moore’s affidavit, Ms. Moore indicated that the
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`pants “were probably the worst she had seen.” Id. See also Doc. 7-3 at 2.
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`With regard to the photographs, defendant Lafon states that he was concerned that
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`plaintiff Miller would change clothes and deny the dress code violation, so he borrowed a
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`camera to document the appearance of plaintiff Miller’s pants. See Doc. 7-2 at 2. According
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`to defendant Lafon, the photographs were taken in the hallway outside the Student Affairs
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`Office and Assistant Principal’s Office, and a teacher was nearby. Id. He states that he took
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`one photograph of the lockers as a practice, then told plaintiff Miller not to cover the ripped
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`pants with her arms, and took two pictures of the rips in plaintiff Miller’s pants. Id.
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`II.
`
`Discussion
`
`A party seeking a temporary restraining or preliminary injunction order bears the
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`burden of establishing four factors: (1) irreparable harm to movant if such an order is not
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`entered; (2) likelihood of harm to others if such an order is entered; (3) movant’s substantial
`
`likelihood of success on the merits; and (4) the impact on the public interest by entry of such
`
`5
`
`Case 3:06-cv-00086 Document 23 Filed 07/28/06 Page 5 of 9 PageID #: 8
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`
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`an order. See Nightclubs, Inc. v. City of Paducha, 202 F.3d 884, 887 (6th Cir. 2000);
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`Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998).
`
`Turning to the irreparable harm factor first, the Court notes that plaintiff Miller
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`transferred to another high school on March 22, 2006. Because she no longer attends the
`
`high school where the alleged incident occurred, there is no irreparable harm to her if the
`
`Court denies the requested relief. Since she has already transferred to another school, the
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`Court does not need to transfer her to a different class or enjoin defendants Williamson and
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`Lafon from approaching and handling administrative or disciplinary matters involving her.
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`Furthermore, plaintiffs do not argue that plaintiff D.B. will suffer irreparable harm in the
`
`absence of the requested injunction. Accordingly, the irreparable harm factor weighs heavily
`
`against the requested relief.
`
`Since plaintiff Miller no longer attends William Blount High School, there is little or
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`no harm to others resulting from entry of the injunction with respect to her. In fact, the effect
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`of the proposed injunction has likely already been accomplished since she is no longer in
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`defendant Williamson’s class, she is probably more than 50 feet from defendants Williamson
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`and Lafon, and neither defendant has any administrative or disciplinary authority over her.
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`With respect to plaintiff D.B., however, there is great harm to others resulting from entry of
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`the requested relief since it would require defendant Lafon, the school principal, to avoid any
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`place where plaintiff D.B. might be at any given time. This burden would prevent defendant
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`Lafon from carrying out his responsibilities at the school by rendering certain places off-
`
`6
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`Case 3:06-cv-00086 Document 23 Filed 07/28/06 Page 6 of 9 PageID #: 9
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`
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`limits at any given time. Accordingly, the harm to others factor weighs against the requested
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`relief.
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`Turning to plaintiffs’ likelihood of success on the merits plaintiffs argue that
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`defendants retaliated against plaintiffs because plaintiff D.B. initiated a federal civil action
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`challenging defendants’ ban on depictions of the confederate battle flag on clothing.1
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`General claims of retaliation brought under the Due Process Clause of the Fourteenth
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`Amendment require a showing of “an egregious abuse of governmental power.” Thaddeus-X
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`v. Blatter, 175 F.3d 378, 387 (6th Cir. 1999) (en banc), quoted in Herron v. Harrison, 203
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`F.3d 410, 414 (6th Cir. 2000). Claims of retaliation for the exercise of a specific
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`constitutional right, in this case the right to petition for re-dress of grievances under the First
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`Amendment, require a plaintiff to prove that: (1) the plaintiff engaged in protected conduct;
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`(2) an adverse action was taken against the plaintiff that would deter a person of ordinary
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`firmness from continuing the protected conduct; and (3) the adverse action was motivated
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`in part by plaintiff’s protected conduct. See Thaddeus-X, 175 F.3d at 394.
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`With regard to a general retaliation claim, plaintiffs have not established a likelihood
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`of success on the merits since they have not demonstrated that defendants’ conduct is
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`probably an egregious abuse of governmental power. The parties have markedly different
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`interpretations of the events involving defendant Lafon’s photography of plaintiff Miller’s
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`1 As they argue their positions regarding this factor in their respective briefs, both parties
`focus on plaintiffs’ retaliation claim and do not address the substance of plaintiffs’ other claims.
`See Docs. 2 at 5-6; 7 at 3-7. Therefore, the Court similarly limits its consideration of the
`likelihood of success on the merits factor to plaintiffs’ retaliation claim.
`
`7
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`Case 3:06-cv-00086 Document 23 Filed 07/28/06 Page 7 of 9 PageID #: 10
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`
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`ripped pants, but they all seem to agree that this incident arose out of plaintiff Miller’s
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`alleged dress code violation. See Docs. 1 at 3; 7-2 at 1-2. Whether or not plaintiff Miller
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`was targeted based on her relationship to plaintiff D.B., defendants’ attempts to enforce the
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`dress code and to document violations thereof are probably not an egregious abuses of
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`governmental power. See Thaddeus-X, 175 F.3d at 387.
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`Similarly, plaintiffs have not established a likelihood of success on the merits of a
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`claim of retaliation for the exercise of the right to re-dress of grievances under the First
`
`Amendment. First, with respect to plaintiff Miller, she is not a party to the civil action that
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`allegedly prompted the retaliation. Because plaintiff Miller did not participate in the
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`protected activity, that is, the initiation of a federal civil action against defendants, she is not
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`likely to recover for retaliation based on that activity. See Thaddeus-X, 175 F.3d at 394.
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`Second, with respect to plaintiff D.B., who did participate in the protected activity, plaintiffs
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`have not alleged what adverse action has been taken against him, except to say that the action
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`taken against plaintiff Miller represented “an escalation of harassment.” Doc. 1 at 4. Since
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`they have not alleged any adverse action against plaintiff D.B., plaintiffs are not likely to
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`recover for retaliation in response to his initiation of the federal civil action. See Thaddeus-
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`X, 175 F.3d at 394. Accordingly, the likelihood of success on the merits factor weighs
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`against the requested relief.
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`Consideration of the public interest factor is necessarily intertwined with the
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`consideration of the likelihood of success on the merits because this case involves the alleged
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`abrogation of constitutional rights. See G & V Lounge, Inc. v. Michigan Liquor Control
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`8
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`Case 3:06-cv-00086 Document 23 Filed 07/28/06 Page 8 of 9 PageID #: 11
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`
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`Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994) (stating “It is always in the public interest to
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`prevent the violation of a party’s constitutional rights.”); Connection Distrib., 154 F.3d at
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`288 (public interest factor cannot be properly assessed without determining whether there is
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`constitutional violation). Thus, just as the likelihood of success on the merits factor weighed
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`against plaintiffs, so does the public interest factor.
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`III. Conclusion
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`For the reasons already discussed, plaintiffs’ motion for preliminary injunction and/or
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`temporary restraining order [Doc. 2] will be denied.
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`ORDER ACCORDINGLY.
`
`s/ Thomas A. Varlan
`UNITED STATES DISTRICT JUDGE
`
`9
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`Case 3:06-cv-00086 Document 23 Filed 07/28/06 Page 9 of 9 PageID #: 12
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