2:14-cv-01762 #12

Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 1 of 15
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Honorable Thomas S. Zilly
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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE
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MICHAEL LEAL,
Plaintiff,
No. 2:14-CV-01762-TSZ
v.
EVERETT PUBLIC SCHOOLS, GARY
COHN, in his individual and official
capacities as Superintendent of Everett
Public Schools, CATHY WOODS, in her
individual and official capacities as Principal
of Cascade High School, LAURA
PHILLIPS, in her individual and official
capacities as Assistant Principal of Cascade
High School, ROBERT AGUILAR, in his
individual and official capacities as
Assistant Principal of Cascade High School,
and DOES 1 THRU 100,
DEFENDANTS RESPONSE TO
PLAINTIFFS MOTION FOR
TEMPORARY RESTRAINING
ORDER AND PRELIMINARY
INJUNCTION
Defendants.
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I.
INTRODUCTION
Defendants Everett Public Schools, Gary Cohn, Cathy Woods, Laura Phillips and
Robert Aguilar (Defendants) respectfully request that the Court deny Plaintiffs Motion for
Temporary Restraining Order and Preliminary Injunction.
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DEFENDANTS RESPONSE TO PLAINTIFFS
MOTION FOR TEMPORARY RESTRAINING
ORDER- 1
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PATTERS ON BU CHANAN
FOBES & LEI TCH, IN C., P.S.
2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701
The Court should deny Plaintiffs motion because Plaintiff fails to demonstrate that he
would likely succeed on the merits, that he would likely suffer irreparable harm in the absence
of temporary and/or preliminary relief, and that the balance of equities tip in his favor and the
injunction is in the public interest.
II.
ADDITIONAL FACTS
There is no dispute that the materials Plaintiff distributed and seeks to distribute are not
publications or other materials written and/or produced by him and/or other students. Dkt. 1
16, 19, Exhibit A-B; Leal Decl. 13. Procedure 3222P provides in pertinent part, Materials
written and/or produced by students may be distributed before or after the school day at points
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of entry/exit of school building. See Decl. of Sarah E. Heineman in Support of Def. Response
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(Heineman Decl.) Ex. Nos. 3-4; see also Dkt. 1-5, Exhibit E. On or about November 19,
2014, Plaintiff requested that the Defendants stipulate to non-enforcement of Policy 3222P with
respect to Plaintiffs distribution of leaflets on the school campus. Heineman Decl. 3-4.
Because the law does not allow for the special treatment of any one student or any particular
viewpoint, the District did not agree to this request. Id.
During the first few months of the 2014 - 2015 school-year, Defendants received at
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least one complaint regarding Plaintiffs actions. Heineman Decl. Ex. 1. This compliant is
exemplary1 of one student who found Plaintiffs actions and speech offensive, disruptive,
antagonizing, and distracting to the classroom. Id. Further, exemplary documentation received
indicates that Plaintiffs distribution of materials contributed to student tardiness. Id. at Ex. 3.
Defendants also discussed with Plaintiff forming a student club to facilitate his on campus
discussions with other students. See Heineman Decl. Ex. 2. Plaintiff and Defendant Wood also
discussed appropriate options and venues for open-air preaching and distribution of student
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Exemplary documentation provided in compliance with the timeframe for responsive motion practice under
Fed. R. Civ. P. 65.
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materials, both of which Plaintiff is permitted to do within the boundaries of District policies.
Dkt. 1-4 at pp. 3-4; see also Heineman Decl.at Ex. 2.
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III.
ISSUE
Should this court issue a temporary restraining order where, as here, Plaintiff cannot
show a likelihood of success on the merits or the likelihood of irreparable injury?
IV.
LEGAL ANALYSIS
The legal standard for a temporary restraining order is the same the court applies in
considering a preliminary injunction. See Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush &
Co., 240 F.3d 832, 839 (9th Cir. 2001). However, such a remedy should be used sparingly
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and only in a clear and plain case. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22
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(2008); see also Rizzo v. Goode, 423 U.S. 362, 379, 96 S.Ct. 598 (1976)(principles of equity
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support that injunction should only be granted in the most extraordinary circumstances). The
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basic function of a preliminary injunction is to preserve the status quo pending a determination
of the action on the merits and to prevent irreparable loss of rights prior to a judgment. Sierra
On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Los Angeles
Memorial Coliseum Comn v. National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980).
Here, Plaintiff is not seeking to preserve the status quo, he is seeking special treatment.
To obtain preliminary injunctive relief, the moving party must show: (1) a likelihood of
success on the merits; (2) a likelihood of irreparable harm to the moving party in the absence of
preliminary relief; (3) that the balance of equities tips in favor of the moving party; and (4) that
an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20,
129 S. Ct. 365 (2008). The court may apply a sliding scale test, under which the elements of
the preliminary injunction test are balanced, so that a stronger showing of one element may
offset a weaker showing of another. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1131 (9th Cir. 2011). To succeed, [plaintiff] must show likelihood of success on the merits
and irreparable injury if denied the injunction or that he has raised serious questions and the
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balance of hardships tips sharply in his favor. Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp.
2d 1088, 1089 (W.D. Wash. 2000); Jacobsen v. United States Postal Service, 812 F.2d 1151,
1152 (9th Cir. 1987). The moving party has the burden of proof on each element of either test,
and the district courts decision regarding preliminary injunctive relief is subject to limited
and deferential review. See Prescott v. County of El Dorado, 915 F. Supp. 1080, 1084
(E.D.Cal. 1996); see the Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008).
A. Plaintiff fails to show that he is likely to prevail on the merits.
Plaintiff requests that the Court temporarily restrain Everett Public Schools (the
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District) from enforcing District policy, which allows the distribution of materials only at
the schools entrances and exits and requires that literature be written by students. (Dkt. 8
at 5). In order to succeed on the merits of the underlying case, Plaintiff must prove that
Defendants violated Plaintiffs First Amendment right to freedom of speech by enforcing
District Policy 3222P. See e.g. Complaint (Dkt. 1 at 11); Winter, 555 U.S. at 20; Ashcroft v.
American Civil Liberties Union, 542 U.S. 656, 666 (2004)(to establish the existence of a clear
legal or equitable right, the party moving for a preliminary remedy must show that it is likely to
prevail on the merits).
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1.
A reasonable time, place, and manner restriction on student speech
in a nonpublic forum is constitutional.
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The First Amendment does not guarantee the right to communicate ones views at all
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times and places or in any manner that may be desired. Heffron v. Intl Soc. For Krishna
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Consciousness, Inc., 452 U.S. 640, 647 (1981). A school need not tolerate student speech that
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is inconsistent with its basic educational mission, even though the government could not censor
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similar speech outside the school. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 266,
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108 S. Ct. 562 (1988). The determination of what manner of speech in the classroom or in
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school assembly is inappropriate properly rests with the school board, and not with the federal
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courts. Lavine v. Blaine School Dist., 257 F.3d 981, 988 (9th Cir. 2001) (quoting Hazelwood,
484 U.S. at 267).
In a nonpublic forum2, the challenged regulation need only be reasonable, as long as
the regulation is not an effort to suppress the speakers activity due to disagreement with the
speakers view. Krishna Consciousness, Inc., v. Lee, 505 U.S. 672, 679 (1992). School areas
such as hallways, which are not opened up to the indiscriminate use by the public are nonpublic
forums. Hazelwood, 484 U.S. 260, 267; see also Muller v. Jefferson Lighthouse, 98 F. 3d 1530,
1539-40 (7th Cir. 1996); Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295,
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1300 (7th Cir. 1993); Peck v. Upshur County Bd. Of Educ. 155 F.3d 274, 277-78 (4th Cir.
1998).
School districts are therefore entitled to put time, place, and manner restrictions on
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speech in facilities such as cafeterias and hallways so long as the restrictions are viewpoint
neutral and reasonable in light of the schools interest in effectiveness of the forums intended
purpose. See M.A.L. v. Kinsland, 543 F.3d 841, 847 (6th Cir. 2008)(citing United States v.
Kokinda, 497 U.S. 720, 730 (1990))(reversing district courts permanent injunction and award
of damages). In M.A.L., the school offered to allow plaintiff post his leaflets on bulletin boards,
in hallways, and to distribute only in certain areas of the school in compliance with the schools
distribution policy. 543 F. 3d at 847. The court found this minor regulation was eminently
reasonable, and stated that preventing handbilling in the hallway between classes
isreasonably to avoid congestion, confusion, and tardiness, to say nothing of the inevitable
clutter caused when recipient indiscriminately discards the handout. Id. (citing Muller, 98 F.
3d at 1543). As the court writes in Muller: Not everyone can stand on the soapbox at once.
Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1543 (7th Cir. 1996). The establishment of
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Even in public forums, content-neutral restrictions that regulate the time, place and manner of speech are
permissible so long as they are narrowly tailored to serve significant government interest, and they leave open
ample alternative channels of communication. Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d
891,908 (9th Cir. 2007)(quoting Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37, 45
(1983)(emphasis added).
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an appropriate time, place, and manner for a student to distribute fliers, even where the
quantities are small, is therefore appropriate. See e.g. id.
Content and viewpoint neutral restrictions, just like the instant case, are constitutionally
upheld in light of the reasonableness of the Defendants purpose. See Glover, 480 F.3d 908. In
Walker-Serrano v. Leonard, 325 F.3d 412 (3d Cir. 2003) a third grade student circulated a
petition protesting against a school trip in violation of a school procedure for student petitions.
The court found that plaintiff had not suffered an injury of constitutional dimension since the
school authorities encouraged and permitted [plaintiff] to express her views in what they
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properly regarded as a pedagogically appropriate manner. Id. at 419. Moreover, there was no
suggestion that school officials attempted to regulate the plaintiffs speech because they
disagreed with the views she sought to express, nor were the school officials attempting in any
way to ban written materials they considered inappropriate for students. Id. supra. Similarly,
here Policy 3222P is neutral to the content of the materials sought to be distributed, applying
equally to political speech, religious speech, and speech related to any other topic including
innocuous announcements about fundraisers, socials, etc. There is simply no evidence that
Policy 3222P was adopted to disfavor certain religious speech and without as much the
limitation on distribution does not treat religious speech any differently from other subjects. See
Hedges, 9 F.3d at 1302(adopted out of a sincere belief that it promotes the schools
educational mission).
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2.
Plaintiff misapplies the Tinker analysis, and fails to cite any
controlling legal authority supporting this rationale.
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Plaintiff attempts to limit this Courts analysis to the general rule under the higher
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constitutional Tinker standards applicable to viewpoint specific regulations. Plaintiff claims
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that Defendants enforcement of Policy 3222 and 3222P, is based solely on mere supposition
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by administrators that tractsmight offend other students. Dkt. 8 at 9. Essentially, Plaintiff
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argues that unless the District can establish that there is a substantial disruption and/or the
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speech bears the imprimatur of the school, the restriction in question must fail constitutional
muster.
There is undoubtedly a general rule that students may engage in activities at school that
convey their ideological viewpoints unless such activities materially and substantially disrupt
the work and discipline of the school or interfere with the rights of others. Requa v. Kent Sch.
Dist. No. 415, 492 F. Supp. 2d 1272, 1280 (W.D. Wash. 2007)(citing Tinker, 393 U.S. 503,
513, 89 S. Ct. 733). However, this higher standard does not apply to restrictions in time, place,
and manner of speech which are viewpoint neutral. See Glover v. Cole, 762 F.2d 1197, 1202-03
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(4th Cir 1985); Canady v. Bossier Parish School Board, 240 F.3d 437, 442-43 (5th Cir. 2001);
Nelson v. Moline Sch. Dist., 725 F. Supp. 965, 973 (C.D. Ill. 1989).
Plaintiff ignores
significant legal authority from this Circuit interpreting Tinker and its progeny in the context of
student speech and, particularly, viewpoint neutral policies regulating distribution of materials
on school campuses. Defendants are not limited to the substantial disruption standard to
justify an otherwise viewpoint neutral and reasonable restriction which otherwise would pass
constitutional scrutiny. See e.g. Kokinda, 497 U.S. at 730; Kinsland, 543 F.3d at 847.
In any case, contrary to Plaintiffs assertion that his actions are innocuous, the
Defendants are in receipt of student complaints concerning Plaintiffs actions, including that
actions of Plaintiff are offensive, antagonizing, disrespectful, disruptive and distracting. See
Heineman Decl. 6, Ex. 1. Finally, Plaintiff simply overstates the disruption standard. A
school district is not required to establish that an actual educational discourse was disrupted by
the student's activity, rather the legitimate school interest in the work and discipline of the
school simply includes the maintenance of a civil and respectful atmosphere toward teachers
and students alike. Requa, 492 F. Supp. 2d at 1280.
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3.
Plaintiff fails to show how Defendants viewpoint neutral restriction
on Plaintiffs speech violates his constitutional rights.
There is no dispute that Policy 3222P is viewpoint neutral; Plaintiff submits no
evidence indicating that Policy 3222P is arbitrarily applied by Defendants and/or viewpoint
specific. Further, contrary to Plaintiffs contention, examination of the legal authority cited in
Plaintiffs motion does not support the claim that a majority of federal courts issue
injunctions in similar contexts. Indeed, a number of the federal cases cited by Plaintiff support
the opposite inference.
Plaintiffs citation to Morgan v. Swanson is in error. The Morgan v. Swanson decision
cited only addresses whether or not a school is entitled to qualified immunity to preclude an
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elementary school student from asserting his First Amendment rights. See Morgan v. Swanson,
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610 F.3d 877, 889 (5th Cir. 2010). In fact, examination of the procedural steps and underlying
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decisions that lead up to Swanson, it is evident that the Fifth Circuit court actually held schools
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2005 revised policy entitling students to distribute written material before and after school
provided sufficient opportunity to distribute materials throughout the day, even that the
alternatives for communication are fulsome. Morgan v. Plano Indep. Sch. Dist., 589 F.3d
740, 748 (5th Cir. 2009). The court held that a time, place, and manner regulation limiting
distribution during lunchtime in the cafeteria was neutral and applied neutrally to all students.
Id. Such neutral policy serves the powerful interests of the school in maintaining order and
discipline, essential to both to its duty to teach and the protected freedom of its students to
speak. Id.3
A number of the cases cited by Plaintiff do not involve matters in which content and/or
viewpoint neutral restrictions were in place. As such, they are easily distinguished from the
instant case. For example, in K.A. v. Pocono Mt. Sch. Dist., 710 F. 3d 99(3d Cir. 2013), the
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The regulation of speech during and immediately before the classroom instructional period is intended to
facilitate the beginning of class without a wait for the distribution of materials. Similarly, restrictions on
distribution of materials by elementary students in hallways and the cafeteria are intended to facilitate the
movements of students between classes and at lunch and to reduce littering. Morgan v. Plano Indep. Sch. Dist.,
589 F.3d 740, 747 (5th Cir. 2009).
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school allowed students to pass out invitations to birthday parties, Halloween parties,
Valentine's dances, and the like during non-instructional time, however required pre-approval
for a Christmas party invite at a church offered by plaintiff. K.A. v. Pocono Mt. Sch. Dist., 710
F.3d at 102-03 (3d Cir. 2013). Similarly, in Wright v. Pulaski Cty. Special Sch. Dist., 803 F.
Supp.2d 980 (E.D. Ark. 2011), a student was completely prevented from including a church
flyer in a classroom literature rack while almost any other organization was allowed to place
take-home materials for the students in the same location. Wright, 803 F. Supp. 2d at 983
(finding that the dissemination of flyers regarding church-sponsored activities was not
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disruptive given the vast array of materials presently circulated; prohibition of the churchsponsored materials was not viewpoint neutral).
Here, there is no such content-based
distinction.
B. Plaintiff cannot prove an actual and substantial injury, and/or irreparable
injury.
A plaintiff seeking a temporary relief and/or a preliminary injunction must also
demonstrate that irreparable harm is likely in the absence of an injunction. Winter, 555 U.S. 7,
20. Assuming arguendo that plaintiff can demonstrate a likelihood of success on the merits,
preliminary injunctive relief may not be granted on a possibility of irreparable harm, because
injunctive relief is an extraordinary remedy that may only be awarded upon a clear showing
that the plaintiff is entitled to such relief. Id. at 375-76. The plaintiff must demonstrate
immediate threatened harm. Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668,
674 (9th Cir. 1988).
A preliminary injunction is not proper where legal remedies might be adequate. See
Sampson v. Murray, 415 U.S. 61, 90, (1974) (compensatory damages will ultimately be
available in the ordinary course of litigation weighs heavily against a claim of irreparable
harm); see also Los Angeles Memorial Coliseum Comn, 634 F.2d at 1202 (the basis of
injunctive relief in the federal courts is irreparable harm and inadequacy of legal remedies).
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Weighed against the findings concerning the unlikelihood that Plaintiff will prevail on the
merits of his claim, the Court concludes that the injuries to Plaintiff, however irreparable, are
insufficient to compel the extraordinary remedy which he seeks. Requa, 492 F. Supp. 2d at
1281.
Plaintiff claims that it is a matter of urgency that the official restrictions be lifted or his
educational and evangelistic opportunities may be lost. Dkt. 8 at 14. Plaintiff conclusively
asserts that he is being forced under threat of expulsion and/or suspension to surrender his First
Amendment rights. Dkt. 8 at 4. These assertions, however, are simply untrue. Plaintiff is
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provided ample opportunities to exercise his freedom of speech. As may any other student,
regarding any topic, he may exercise his freedom of speech through the distribution of student
written and published materials, before and after school, at school entrances and exits. 4 As
noted above, the basic function of a preliminary injunction is to preserve the status quo
however Plaintiffs motion asks that this Court apply affirmatively alter the status quo,
essentially granting Plaintiff special treatment with respect to his religious speech. See Sierra
On-Line, 739 F.2d at 1422. Defendants are enforcing Policy 3222P neutrally across the board
with respect to all students, and Plaintiff admits that Defendants still allow him to distribute
student written materials. Dkt. 8 at 7; see also Compl. Exh. D, Dkt. 1-4. Rather than losing
his First Amendment freedoms, Defendants provide Plaintiff with ample opportunities to
exercise his first amendment rights; given that Plaintiff has numerous alternative outlets for his
proffered speech, no irreparable injury is done to Plaintiff during the pendency of this claim
sufficient to justify a preliminary remedy.
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Plaintiff threatens to affirmatively violate a reasonable school policy, in the face of

alternative speech avenues offered, to support his argument that there is an imperative need for
a preliminary remedy. Plaintiffs claim is unprecedented and unsupported by the strong legal
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Although it is not the subject of the instant motion, Plaintiff also engages in open-air preaching on campus and
has been provided with times and a location to do so.
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authority in favor of Defendants reasonable and viewpoint neutral policy. See e.g. Morgan v.
Plano Indep. Sch. Dist., 589 F.3d at 748; Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9
F.3d 1295, 1302. Even at a baseline, such a deduction defies the logical purpose of temporary
restraint. Finally, as a general matter it is noteworthy that under Washington law student
discipline, including suspension does not mean that Plaintiff will automatically suffer
academically. See Wash. Admin. Code 180-40-235(1) (No form of discipline shall be
enforced in such a manner as to prevent a student from accomplishing specific academic grade,
subject, or graduation requirements).

For these reasons, Plaintiff fails to meet his burden of showing that he would suffer
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irreparable harm if the temporary restraining order and preliminary injunction is not granted.
C. Balancing of interests favors Defendants in this matter.
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The moving party must show either (1) a combination of probable success on the merits
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and the possibility of irreparable injury, or (2) that serious questions are raised and the balance
of hardships tips sharply in favor of the moving party. Stuhlbarg, 240 F.3d 832, 839-40 (9th
Cir. 2001).
These standards are not separate tests but the outer reaches of a single
continuum. Id. To obtain a preliminary injunction, the plaintiff must show that the balance of
equities tips in his favor and that an injunction is in the public interest. Winter, 129 S.Ct. at
374. When considering whether to grant an injunction, a trial court is to give particular regard
to the interests of the public. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107
S.Ct. 1396 (1987) (cited by High Sierra Hikers Association v. Blackwell, 390 F.3d 630, 643
(9th Cir. 2004). The court must also weigh whether the public interest favors issuance of the
injunction. Southwest Voter Registration Ed. Project v. Shelley, 344 F.3d 914, 917 (9th Cir.
2003).
Plaintiff claims that the District has no interest in restricting private student speech and
that the District will not suffer any harm by granting the temporary restraining order. (Dkt. 8 at
15). Plaintiff fails to cite any controlling Ninth Circuit authority in support of this argument,
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and the out-of-district cases cited in Plaintiffs motion generally address where there is a total
prohibition of student action and/or speech. These are distinguishable from the instant case,
and, in the case of Hedges v. Wauconda, even support the opposite inference. For instance, in
Westfield High Sch. L.I.F.E. Club v. City of Westfield, 249 F.Supp.2d 98 (D. Mass 2003), the
school in question did not allow students to distribute non-school curriculum or activity related
literature of any kind directly to other students on school grounds. Westfield, 249 F. Supp. 2d
at 104. This is not akin to the instant case where the Defendants policy permits students to
distribute student generated materials at the entrances and exits before and after school, and
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where Defendants allow Plaintiff to proselytize in particular locations on school grounds. The
District has at no time attempted to wholly restrict Plaintiffs private speech he is free to hand
out whatever materials he chooses off school grounds and on his own time, and he is free to
distribute materials at school in compliance with Procedure 3222P. See Dkt. 8 at 15.
In Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295 (7th Cir. 1993), the
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seventh circuit actually upheld the provisions of a school policy which limited distributed
materials to those generated by students. Hedges, 9 F.3d 1295, 1302 (7th Cir. 1993) [1] (When
they want to make a general circulation, they must use their own words or the words of a
classmateThe proprietors of a nonpublic forum are entitled to make such choices, provided
they are not arbitrary or whimsical, and Wauconda's is neither.)(emphasis added).
publics interest would be harmed by granting Plaintiffs motion. There is a real and tangible
education interest in students expressing thoughts in their own words and requiring materials
placed in general circulation to be student generated serves such purpose. Id. at 1302.
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Given the substantial unlikelihood that Plaintiff would prevail on the merits, the balance
is therefore tipped in favor of Defendants interest in the maintenance of a civil and orderly
[1]
A junior high school is a nonpublic forum, which may forbid or regulate many kinds of speech. E.g., Perry
Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948 (1983) (school may give a union
preferential access to its internal mail system); cf. Cornelius v. NAACP Legal Defense and Education Fund, Inc.,
473 U.S. 788, 105 S. Ct. 3439 (1985). Schools routinely deny students the ability to express themselves by
adopting the words of others. Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1302 (7th Cir.
1993).
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environment. The public's interest in the school district's ability to maintain a working and
learning environment where violations of those legitimate expectations are sanctionable favors
Defendants' position and the denial of the requested restraining order. Requa at 1283.
Viewpoint neutral restrictions placed on student distribution of leaflets in light of the
schools provision for ample alternatives for Plaintiff are the type of minor speech regulations
that are reasonable and tip the balance in the Defendants favor. See M.A.L. v. Kinsland, 543
F.3d at 847(prohibition of distribution in hallways is reasonable to avoid congestion, confusion
and tardiness). Plaintiff is simply required to adhere to the same rules as all students. This is a
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minimal imposition on Plaintiff, which if the Court circumvented through a temporary

restraining order, absolutely places the District at risk of widespread issues with the efficient
and orderly operation of its educational environment if not able to enforce its reasonable and
neutral time, place, and manner policy.
V.
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CONCLUSION
Plaintiff cannot satisfy the legal requirements for a temporary restraining order.
Plaintiff fails to demonstrate that he would likely succeed on the merits, fails to show that he
would suffer irreparable harm in the absence of temporary and preliminary relief, fails to
establish that the balance of equities tips in his favor and fails to show the injunction would be
in the publics interest. Therefore, and for all the foregoing reasons, Defendants respectfully
request that the Court deny Plaintiffs Motion for Temporary Restraining Order and
Preliminary Injunction.
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ORDER- 13
2:14-CV-01762-TSZ
372625.doc
Tel. 206.462.6700 Fax 206.462.6701
DATED this 24th day of November, 2014.
PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.
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By: /s/ Sarah E. Heineman

Michael A. Patterson, WSBA 7976
Sarah E. Heineman, WSBA 33107
Of Attorneys for Defendants
2112 Third Avenue, Suite 500
Seattle, WA 98121
map@pattersonbuchanan.com
seh@pattersonbuchanan.com
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ORDER- 14
2:14-CV-01762-TSZ
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CERTIFICATE OF SERVICE
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I, Theresa Nixon, hereby declare that on this 24th day of November, 2014, I
electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which
will send notification of such filing to the following:
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ATTORNEY NAME & ADDRESS

Conrad Reynoldson
Pacific Justice Institute
4421 51ST AVENUE NE
SEATTLE, WA 98105
Conrad3445@gmail.com
METHOD OF DELIVERY
Electronic Mail
ABC Legal Messenger Service
Regular U.S. Mail
Other: ________________________
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Kevin T. Snider
Matthew B. McReynolds
Pacific Justice Institute
9751 HORN ROAD, SUITE 115
SACRAMENTO, CA 95827
ksnider@pji.org
mattmcreynolds@pji.org
I certify under penalty of perjury, under the laws of the State of Washington, that the
foregoing is true and correct.
DATED this 24th day of November, 2014 at Seattle, Washington.
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/s/ Theresa Nixon
Theresa Nixon
Legal Assistant
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ORDER- 15
2:14-CV-01762-TSZ
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Case 2:14-cv-01762-TSZ Document 12-1 Filed 11/24/14 Page 1 of 3
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Honorable Thomas S. Zilly
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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE
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MICHAEL LEAL,
Plaintiff,
v.
EVERETT PUBLIC SCHOOLS, GARY
COHN, in his individual and official
capacities as Superintendent of Everett
Public Schools, CATHY WOODS, in her
individual and official capacities as Principal
of Cascade High School, LAURA
PHILLIPS, in her individual and official
capacities as Assistant Principal of Cascade
High School, ROBERT AGUILAR, in his
individual and official capacities as
Assistant Principal of Cascade High School,
and DOES 1 THRU 100,
No. 2:14-CV-01762-TSZ
ORDER DENYING PLAINTIFFS
MOTION FOR TEMPORARY
RESTRAINING ORDER AND
PRELIMINARY INJUNCTION
[PROPOSED]
Defendants.
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THIS MATTER came on for hearing by Plaintiff Michael Leals Motion for Temporary
Restraining Order and Preliminary Injunction. Plaintiff Michael Leal appeared by and through
his counsel, Kevin T. Snider. Defendants Everett Public Schools, Gary Cohn, Cathy Woods,
Laura Phillips and Robert Aguilar (Defendants) appeared by and through their counsel,
Michael A. Patterson and Sarah E. Heineman.
The Court having reviewed the records and files herein, and having reviewed the
[PROPOSED] ORDER DENYING PLAINTIFFS
MOTION FOR TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION- 1
2:14-CV-01762-TSZ
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following materials submitted by the parties in support of and in opposition to Plaintiffs
motion:
1. Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction

(Dkt. 8);
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2. Plaintiffs proposed order granting Plaintiffs Motion for Temporary Restraining

Order (Dkt. 7)
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3. Declaration of Kevin T. Snider (Dkt. 9);
4. Declaration of Michael Leal in Support of Temporary Restraining Order and

Preliminary Injunction (Dkt. 10);
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5. Complaint (Dkt. 1), inclusive of Exhibits (Dkt. 1-1 to 1-10);

6. Defendants Response to Plaintiffs Motion for Temporary Restraining Order
and Preliminary Injunction; and,
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7. Declaration of Michael A. Patterson in Support of Defendants Response to

Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction,
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with attached exhibits.

The Court being fully advised, NOW, THEREFORE, IT IS HEREBY
ORDERED, ADJUDGED AND DECREED, that Plaintiffs Motion for Temporary
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Restraining Order and Preliminary Injunction is DENIED.

Alternatively, it is ORDERED that Plaintiffs Motion for Temporary Restraining Order
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is denied, and:
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1. A preliminary injunction hearing is set for _____ day of __________, 2015 at
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_____ AM/PM;
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2. The parties shall appear for the hearing in person;

3. The parties may file a motion, response and reply papers regarding a
preliminary injunction and if no such filings are made, the Court shall deem the
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2:14-CV-01762-TSZ
372626.doc
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existing filings as preliminary injunction pleadings.
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It is FURTHER ORDERED that:
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DONE IN OPEN COURT this _____ day of November, 2014.
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By:
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THE HONORABLE THOMAS S. ZILLY
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Presented by:
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PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.
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By: /s/ Sarah E. Heineman

Michael A. Patterson, WSBA 7976
Sarah E. Heineman, WSBA 33107
Of Attorneys for Defendants
Approved as to form; Notice of presentation
waived:
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By:_______________________________
Conrad Reynoldson, WSBA 48187
Kevin T. Snider, CA SBN 170988*
Matthew B. McReynolds, CA SBN 234797*
Of Attorneys for Plaintiff
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*pro hac vice
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2:14-CV-01762-TSZ
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Tel. 206.462.6700 Fax 206.462.6701

2:14-cv-01762 #12

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Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 1 of 15

UNITED STATES DISTRICT COURT

Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 2 of 15

injunction is in the public interest.

Tel. 206.462.6700 Fax 206.462.6701

Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 3 of 15

Dkt. 1-4 at pp. 3-4; see also Heineman Decl.at Ex. 2.

Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 4 of 15

A. Plaintiff fails to show that he is likely to prevail on the merits.

Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 5 of 15

484 U.S. at 267).

In a nonpublic forum2, the challenged regulation need only be reasonable, as long as

Tel. 206.462.6700 Fax 206.462.6701

Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 6 of 15

quantities are small, is therefore appropriate. See e.g. id.

constitutional Tinker standards applicable to viewpoint specific regulations. Plaintiff claims

by administrators that tractsmight offend other students. Dkt. 8 at 9. Essentially, Plaintiff

Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 7 of 15

Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 8 of 15

There is no dispute that Policy 3222P is viewpoint neutral; Plaintiff submits no

the opposite inference.

Plaintiffs citation to Morgan v. Swanson is in error. The Morgan v. Swanson decision

Tel. 206.462.6700 Fax 206.462.6701

Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 9 of 15

Here, there is no such content-based

Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 10 of 15

Plaintiff threatens to affirmatively violate a reasonable school policy, in the face of

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Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 11 of 15

subject, or graduation requirements).

Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 12 of 15

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Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 13 of 15

Viewpoint neutral restrictions placed on student distribution of leaflets in light of the

F.3d at 847(prohibition of distribution in hallways is reasonable to avoid congestion, confusion

minimal imposition on Plaintiff, which if the Court circumvented through a temporary

Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 14 of 15

DATED this 24th day of November, 2014.

By: /s/ Sarah E. Heineman

Case 2:14-cv-01762-TSZ Document 12 Filed 11/24/14 Page 15 of 15

will send notification of such filing to the following:

ATTORNEY NAME & ADDRESS

Case 2:14-cv-01762-TSZ Document 12-1 Filed 11/24/14 Page 1 of 3

UNITED STATES DISTRICT COURT

Case 2:14-cv-01762-TSZ Document 12-1 Filed 11/24/14 Page 2 of 3

following materials submitted by the parties in support of and in opposition to Plaintiffs

1. Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction

2. Plaintiffs proposed order granting Plaintiffs Motion for Temporary Restraining

3. Declaration of Kevin T. Snider (Dkt. 9);

4. Declaration of Michael Leal in Support of Temporary Restraining Order and

5. Complaint (Dkt. 1), inclusive of Exhibits (Dkt. 1-1 to 1-10);

7. Declaration of Michael A. Patterson in Support of Defendants Response to

with attached exhibits.

Restraining Order and Preliminary Injunction is DENIED.

1. A preliminary injunction hearing is set for _____ day of __________, 2015 at

2. The parties shall appear for the hearing in person;

[PROPOSED] ORDER DENYING PLAINTIFFS

Case 2:14-cv-01762-TSZ Document 12-1 Filed 11/24/14 Page 3 of 3

existing filings as preliminary injunction pleadings.

It is FURTHER ORDERED that:

DONE IN OPEN COURT this _____ day of November, 2014.

THE HONORABLE THOMAS S. ZILLY

By: /s/ Sarah E. Heineman

*pro hac vice

1. A preliminary injunction hearing is set for _ day of ______, 2015 at