Spiehs v. Lewis et al

1
In the United States District Court
for the District of Kansas
_____________
Case No. 23-cv-04121-TC-GEB
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JUSTIN SPIEHS,
Plaintiff
v.
ANTHONY LEWIS, ET AL.,
Defendants
_____________
ORDER
Justin Spiehs sued a series of defendants associated with the Law-
rence, Kansas School Board, alleging violations of the First and Four-
teenth Amendments. Doc. 1; Doc. 50. Most of his claims were dis-
missed. Doc. 58. Spiehs then moved to amend his complaint a second
time. Doc. 67. Magistrate Judge Birzer recommended that the motion
be denied as futile. Doc. 77. Spiehs objected. Doc. 78. For the follow-
ing reasons, his objections are overruled and the R&R is adopted.
I
A
When a magistrate judge issues a report and recommendation on
a dispositive pretrial matter, a party objecting to the recommendation
must “serve and file specific written objections to the proposed find-
ings and recommendations.” Fed. R. Civ. P. 72(b)(2). The district judge
must then
determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The dis-
trict judge may accept, reject, or modify the recom-
mended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.
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Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). This means that
objections to a magistrate judge’s recommended disposition must be
“both timely and specific to preserve an issue for de novo review by
the district court . . . .” United States v. One Parcel of Real Prop., 73 F.3d
1057, 1060 (10th Cir. 1996). To be timely, the objection must be made
within 14 days after service of a copy of the recommended disposition.
Fed. R. Civ. P. 72(b)(2). Objections are sufficiently specific if they “fo-
cus the district court’s attention on the factual and legal issues that are
truly in dispute.” One Parcel of Real Prop., 73 F.3d at 1060. Where a party
fails to make a proper objection, a district court may review the rec-
ommendation under any standard it deems appropriate, even for clear
error. Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations
omitted); Gilbert v. United States Olympic Comm., 423 F. Supp. 3d 1112,
1125 (D. Colo. 2019).
B
This case concerns Justin Spiehs, a self-described community ac-
tivist who was banned from all property belonging to Unified School
District No. 497 in Lawrence, Kansas.1 Doc. 1. In October 2021 and
during the period of time where precautions against the spread of
COVID-19 were the norm, Superintendent Anthony Lewis issued a
no-trespass order against Spiehs after Spiehs attended a public presen-
tation at Lawrence High School without wearing a mask, in violation
of the District’s masking policy at the time. Doc. 50 at ¶¶ 43–45. The
order barred Spiehs from all District property but permitted him to
attend school board meetings remotely through WebEx, a videocon-
ferencing service. Id. at ¶¶ 52, 61, 86.
Spiehs used WebEx to attend several board meetings in 2022. At
three of those meetings—in February and April 2022—his connection
was terminated after he made comments that the Board determined
violated its public commentary policies, which directed that complaints
about specific staff or students be addressed through other channels
rather than during public comment. Doc. 50 at ¶¶ 92–114.
Spiehs sued in December 2023. His suit alleged that the no-tres-
pass order and the Board’s enforcement of its public commentary
1 All document citations are to the document and page number assigned in
the CM/ECF system.
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policies violated his rights under the First and Fourteenth Amend-
ments. Doc. 1; Doc. 50.
A Memorandum and Order, issued on December 13, 2024, re-
jected most of the claims in his case. Doc. 58. It dismissed Spiehs’s
claims arising from the no-trespass order as time-barred, because the
two-year statute of limitations began running when the order issued in
October 2021 and Spiehs did not sue until December 2023. Id. at 8–
10. It dismissed claims against the individual defendants—Superinten-
dent Lewis, Board President Erica Hill, and Board Clerk Alyse Don-
nell—on qualified immunity and personal participation grounds. Id. at
19–24. It found Spiehs’s facial vagueness challenge to the Board’s pol-
icies implausible, id. at 10–12, and his equitable challenges to the
Board’s old policies moot, since those policies were amended in June
2022 and November 2023, id. at 12–13. The Memorandum and Order
also noted, in a footnote, that Spiehs likely lacked standing for his claim
that the no-trespass order prevented him from attending church ser-
vices on District property, because he never alleged any intention of
actually attending such services. Id. at 10 n.3. The sole surviving claims
were viewpoint discrimination and retaliation theories based on
Spiehs’s WebEx activity, proceeding only against the Board. Id. at 14–
19.
Spiehs subsequently sought leave to amend his complaint in three
specific ways. Doc. 67. First, he proposed to substitute Jeanice Swift—
the District’s interim superintendent who replaced Lewis—as an indi-
vidual-capacity defendant, on the theory that Swift’s 2025 decision not
to rescind the no-trespass order constitutes a new “discrete act” that
restarts the statute of limitations. Id. at 1; Doc. 69 at 1. Second, he
sought to add facts showing that he had contacted Free City Church—
a church that leases District property to hold services—and been told
he was welcome, and that he emailed Swift requesting permission to
attend services on District property without receiving a response. Doc.
67 at 2; Doc. 67-1 at ¶¶ 78–82. Third, he sought to add Kelly Jones,
the presiding Board President, as a defendant and allege additional We-
bEx incidents in which Jones interrupted and removed Spiehs for us-
ing language she characterized as obscene. Doc. 67 at 1–2; Doc. 67-1
at ¶¶ 105–123.
Defendants opposed the motion as futile. Doc. 68. Magistrate
Judge Birzer agreed and recommended that the motion be denied.
Doc. 77. She concluded that the claims based on the no-trespass order
remain barred by the statute of limitations regardless of which
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superintendent enforces the order, that the Free City Church allega-
tions still fail to state a claim because the church is operated separately
from the District, and that Swift and Jones are entitled to qualified
immunity for the same reasons that shielded their predecessors. Id. at
7–11. Spiehs filed timely objections. Doc. 78.
II
Spiehs raises several objections to the R&R. None identifies an er-
ror in Judge Birzer’s recommendation that warrants reversal. As a re-
sult, his objection is overruled
A
As noted, Spiehs’s claims arising from the no-trespass order were
dismissed as time-barred. Doc. 58 at 8–10. Spiehs attempts to plead
around that ruling by substituting the current interim superintendent,
Jeanice Swift, and arguing that her 2025 decision not to rescind the
order is a new “discrete act” that restarts the statute of limitations.
Doc. 67 at 1; Doc. 69 at 1. Judge Birzer disagreed, reasoning that
Spiehs alleges only the continued imposition of the same order by a
new individual. Doc. 77 at 7. Spiehs objects. Doc. 78 at 1–3.
Spiehs’ objection to Judge Birzer’s conclusion fails. As was the case
with Spiehs’s prior claims, the continuing violation and repeated viola-
tion doctrines do not apply to his claims against Swift because the is-
suance of the original order (that continues to be enforced by Swift)
was a discrete act. Doc. 58 at 9 (citing Vasquez v. Davis, 882 F.3d 1270,
1277 (10th Cir. 2018); Mata v. Anderson, 635 F.3d 1250, 1253 (10th Cir.
2011)). Spiehs’s new theory does not change the analysis. Swift’s re-
fusal to rescind the order is not a new deprivation, rather it is a decision
not to undo an old one. Doc. 58 at 9 (citingVasquez,, 882 F.3d at 1277).
“True, the order may be enforced multiple times. But each time, De-
fendants must rely on the original order.” Id. The continuing violation
doctrine “is triggered by continual unlawful acts, not by continual ill
effects from [an] original violation.” Mata, 635 F.3d at 1253.
B
Spiehs next argues that he has cured the standing deficiency iden-
tified in a Memorandom and Order, Doc. 58, with respect to his po-
tential attendance of Free City Church services. Doc. 78 at 10–12. In
particular, he now alleges that he subsequently contacted Free City
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Church, was told he was welcome, emailed Swift requesting permission
to attend services on District property, and received no response. Doc.
67-1 at ¶¶ 78–82.
Once again, Judge Birzer’s rejection of his claim was not errone-
ous. Even if this evidence gave him standing, it remains tethered to the
no-trespass order, which remains time-barred. Doc. 58 at 8–10. Spiehs
cannot avoid the statute of limitations by identifying a new context in
which the same deprivation causes him harm. The underlying injury is
exclusion from District property, and the time to challenge that exclu-
sion has passed. See supra Part II.A.1; Doc. 58 at 8–10.2
C
Finally, Spiehs objects to the R&R’s conclusion that Swift and
Jones are entitled to qualified immunity as to his viewpoint discrimi-
nation and retaliation claims based on his WebEx activity. Doc. 78 at
6–9. He catalogs a series of WebEx meetings at which Jones allegedly
interrupted and removed him for using what she characterized as “ob-
scene language” while reading from books available in District librar-
ies. Id. at 5–6. He argues that Jones and Swift were “going rogue” ra-
ther than following Board policy, and that viewpoint discrimination is
clearly established regardless. Id. at 4. He also invokes Baca v. Cosper,
128 F.4th 1319 (10th Cir. 2025), for the proposition that courts must
survey the full landscape of the law, including persuasive authority
from other circuits. Id. at 8–9.
Spiehs’ arguments do not undermine Judge Birzer’s conclusion
that qualified immunity applies. The Memorandum and Order ana-
lyzed whether the Board’s speech restrictions violated clearly estab-
lished law and concluded that they did not. Doc. 58 at 21–24. Courts
continue to disagree about whether policies directing complaints about
staff and students to other channels constitute viewpoint discrimina-
tion. Compare Griffin v. Bryant, 30 F. Supp. 3d 1139, 1188 (D.N.M. 2014),
with Scroggins v. City of Topeka, 2 F. Supp. 2d 1362, 1372 (D. Kan. 1998);
see also Pollak v. Wilson, No. 22-8017, 2022 WL 17958787, at *7 (10th
2 Moreoever, even assuming neither the time bar nor standing deficiency ex-
isted, Spiehs claims’ would fail on qualified immunity grounds as the next
subsection notes. See Part II.C., infra.
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Cir. Dec. 27, 2022). But the persistence of that dispute confirms law is
not clearly established. Reichle v. Howards, 566 U.S. 658, 669–70 (2012).3
Spiehs invokes cases recognizing that restrictions on speech in a
limited public forum must be viewpoint neutral. Doc. 78 at 7 (citing
Shero v. City of Grove, 510 F.3d 1196, 1202 (10th Cir. 2007)). He also
cites Mesa v. White, 197 F.3d 1041, 1048 (10th Cir. 1999). But the ques-
tion here is whether removing a speaker for using language character-
ized as obscene during public comment—even language read from
books available in school libraries to make a point about school cur-
ricula—constitutes viewpoint discrimination rather than a reasonable,
content-neutral enforcement of meeting decorum. Neither Shero nor
Mesa provides an answer, much less one that clearly established the
law. Shero addressed a city’s refusal to allow signs on public utility poles,
510 F.3d at 1199, and Mesa involved a commissioner who silenced a
speaker based on the speaker’s criticism of county governance, 197
F.3d at 1044–45, which is a far more straightforward case of viewpoint-
based exclusion. Neither case addresses the line between viewpoint
discrimination and the enforcement of decorum rules restricting the
use of profanity, which is the key issue Jones’s conduct presents. The
persistence of that uncertainty confirms that the law was not clearly
established as to Jones’s specific conduct. See Reichle, 566 U.S. at 669–
70; see also Doc. 58 at 21–24 (analyzing qualified immunity and con-
cluding that no Supreme Court or Tenth Circuit decision clearly estab-
lishes that enforcement of the Board’s public commentary policies
constitutes viewpoint discrimination).
Baca does not change this conclusion. For one thing, Baca instructs
courts to consider the weight of authority beyond the Tenth Circuit,
128 F.4th at 1325, a concept that is hardly novel. See, e.g., Elder v. Hol-
loway, 510 U.S. 510, 516 (1994) (holding that courts evaluating qualified
3 Spiehs’s allegations about Jones interrupting him while he read from books
in District libraries are not without some force. But the question is not
whether a factfinder might eventually conclude that Jones’s conduct was
viewpoint-based. The question is whether clearly established law gave Jones
fair notice that her conduct was unlawful. The general prohibition on view-
point discrimination, see Shero, 510 F.3d at 1202, does not resolve the more
granular question of whether a presiding officer may stop a speaker from
reading profane passages aloud during a public meeting. See District of Columbia
v. Wesby, 583 U.S. 48, 63 (2018) (requiring that clearly established law be de-
fined with a “high degree of specificity”).
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immunity should use their “full knowledge of [their] own [and other
relevant] precedents” rather than limiting the inquiry to authorities
cited by the parties). For another, Baca does not hold that a “robust
consensus” exists on the question at issue here. Contra Doc. 78 at 10.
Rather, the cases Spiehs cites demonstrate the ongoing uncertainty;
they involve different policies and different facts, and neither addresses
the specific question presented here, namely, whether removing a
speaker from a virtual meeting for using language characterized as ob-
scene, even when read from books available in school libraries, consti-
tutes viewpoint discrimination. See Vollmecke v. Independence Sch. Dist.,
753 F. Supp. 3d 792, 808 (W.D. Mo. 2024) (denying qualified immunity
where a superintendent banned a speaker from all school property for
a year based on political criticism, without any evidence of actual threat
or disruption); Mejia v. Lafayette Consol. Gov’t, No. 23-0307, 2025 WL
890525, at *10 (W.D. La. Mar. 20, 2025) (denying qualified immunity
based on Fifth Circuit precedent holding that pretextual invocation of
decorum rules to silence opposing viewpoints violates the First
Amendment). But even if they were factually similar, it takes more than
two district court decisions to create clearly established law. See District
of Columbia v. Wesby, 583 U.S. 48, 63 n.8 (2018) (“We have not yet de-
cided what precedents—other than our own—qualify as controlling
authority for purposes of qualified immunity.”). No consensus of per-
suasive authority—much less controlling authority–establishes that
these defendants’ conduct is unconstitutional; the state of the law at
the time the conduct was undertaken was certainly not beyond debate
as qualified immunity requires. See generally Zorn v. Linton, 146 S. Ct. 926,
930 (2026) (per curiam) (summarily reversing denial of qualified im-
munity where the lower court failed to identify sufficiently specific
precedent placing the constitutional question “beyond debate”).
Spiehs separately contends that even if the proposed amendments
are futile as to the individual defendants, the R&R failed to account for
the fact that some of the new allegations—particularly those regarding
Jones’s WebEx removals—are relevant to his surviving viewpoint dis-
crimination and retaliation claims against the Board. Doc. 78 at 3–4.
But the Board’s public commentary policies were amended in June
2022 and November 2023, which was after Spiehs’s last alleged re-
moval. Doc. 58 at 12–13. Equitable challenges to the old policies are
moot, and Spiehs does not allege that the new policies have been ap-
plied to him. Id. at 13. To the extent the new allegations describe con-
duct that bears on the surviving claims, those claims are already pro-
ceeding against the Board and do not require amendment to do so.
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Adding new factual allegations about post-amendment meetings does
not remedy the mootness of the old policies or establish a new basis
for relief that is not already encompassed by the surviving claims.
III
For the foregoing reasons, Spiehs’s Objections to the Report and
Recommendation, Doc. 78, are OVERRULED. The Report and Rec-
ommendation, Doc. 77, is ADOPTED in its entirety. Spiehs’s Second
Motion for Leave to Amend Complaint, Doc. 67, is DENIED.
It is so ordered.
Date: April 16, 2026 s/ Toby Crouse
Toby Crouse
United States District Judge
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