MCBREAIRTY v. BREWER SCHOOL DEPARTMENT et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PATRICIA MCBREAIRTY, as 	)
Personal Representative of the Estate 	)
of Shawn McBreairty, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:24-cv-00053-LEW
)
BREWER SCHOOL DEPARTMENT, 	)
GREGG PALMER, BRENT 	)
SLOWIKOWSKI, and MICHELLE 	)
MACDONALD, 	)
)
Defendants. 	)
ORDER ON MOTION FOR
PRELIMINARY INJUNCTION
In this action, Plaintiff Patricia McBreairty, as the Personal Representative of the
Estate of Shawn McBreairty, seeks preliminary injunctive relief based on a threat of
“further action” delivered by Defendant Brewer School Department to her late husband
concerning an article he authored and published on the website [your]NEWS and
subsequently took down. 	Patricia McBreairty contends that the threat violated First
Amendment principles embodied in the Fourteenth Amendment of the United States
Constitution. For reasons that follow, her request for a preliminary injunction is denied.
B ACKGROUND
In the winter of 2024, a controversy related to an epicene high school student (“the
Student”) erupted at the Brewer High School. Though not a member of the local
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community, Shawn McBreairty, a self-published journalist, was outraged by the handling
of the controversy and authored an article and posted it on the website [your]NEWS. 	In
his opinion piece “Girls’ Bathrooms Are Not ‘Safe Spaces’ When Males Are Present,”
McBreairty was critical of the Student as well as the individual defendants identified in the
caption of this Order. 	Compl. Ex. 3 (ECF No. 1-3). 	McBreairty included several image
files in his post, including one that showed the Student having a conversation with female
students in the open space of the girls’ bathroom. 	Its caption read: “Brewer, ME High
School girls’ bathroom photo of male [HD] (green hair and brown dress) provided by an
anonymous source.” Id. at 4. McBreairty reported that the Student posed a physical threat
to the young women who used the bathroom, and backed the assertion based on social
media posts and “unconfirmed reports.”
Elsewhere in the article, McBreairty criticized the Brewer School Department’s
institution of a policy that allowed the Student to access the girls’ bathroom, as well as
actions taken by the Department and the individual defendants to quash a student-led, in-
school petitioning effort opposing the policy. Concerning the individual defendants,
McBreairty rebuked Defendant Michelle MacDonald, an English teacher (as well as her
child, who happens to go to another school and has no connection to the controversy), and
Defendant Gregg Palmer (Department Superintendent) and Brent Slowikowski (High
School Principal) for their roles in supporting the restroom policy. 	McBreairty also
criticized the Drummond Woodsum law firm for its role in counseling school clients to
adopt such policies.
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On February 13, 2024, in response to Mr. McBreairty’s publication, Attorney
Melissa Hewey of Drummond Woodsum, defense counsel in this action, expressly acting
on behalf of the School Department, sent an email to McBreairty in which she demanded
that he take down certain content in the article. 	Attorney Hewey acknowledged that
“much” of the article expressed McBreairty’s opinion on matters of public concern but
stated that certain portions of the article did not deserve First Amendment protection
because they were false, invaded the privacy of the subjects, and/or amounted to bullying
and harassment under school department policies, citing the same. 	In terms of privacy,
Attorney Hewey asserted that the article was unlawful because it “identifies the student
specifically.” She also objected to the inclusion of the group bathroom photograph because
the Department believed it was taken without the consent of those depicted, “presumably
in violation of 17-A M.R.S. § 511.” Compl. Ex. 5 (ECF No. 1-5). She further stated, “we
will be forced to take further action against you,” if McBreairty did not comply with the
demand. 	Id. 	The threat of further action was understood by McBreairty as a threat of
litigation because Attorney Hewey represents another school district that filed suit against
McBreairty for similar speech activity.1
Based on his prior experience with Attorney Hewey and/or Drummond Woodsum,
Mr. McBreairty submitted to the demand and took down his entire article from the
[your]NEWS website, but published Attorney Hewey’s email on his X social media
1 Hermon School Department v. McBreairty, Docket No. CV-2022-00056 (Penobscot Sup. Ct.). See ECF
No. 23-2 (a complaint alleging that “Defendant Shawn McBreairty has engaged in bullying and harassing
behavior toward [a] Hermon School Department employee” and “that such conduct violates Hermon School
Department policy and state law,” and requesting that “McBreairty should be enjoined from further
conduct”).
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account. In response, Attorney Hewey authored another email in which she asserted that
publication of her prior email on X was unlawful because the email included references to
the allegedly objectionable content. 	Specifically, she demanded that McBreairty redact
content related to the Student and MacDonald’s child.
McBreairty again complied with the demand, but on February 22, 2024, McBreairty
filed this civil action, claiming that the threat of a civil action conveyed by Attorney Hewey
worked a deprivation of his speech rights. Although the Department was the only entity at
whose behest Attorney Hewey purported to act, McBreairty included as defendants in this
action Superintendent Palmer, Principal Slowikowski, and MacDonald.
In his Complaint (ECF No. 1), McBreairty demanded a jury trial and requested
declaratory and injunctive relief and an award of damages against all four defendants based
on the chilling effect of Attorney Hewey’s demands. McBreairty alleged that Defendants
“would or should know that this threat was baseless,” Id. ¶ 65, but observed that counsel
had previously filed suit against him under similar circumstances. 	Along with his
Complaint, McBreairty filed a Motion for Temporary Restraining Order or Preliminary
Injunction (ECF No. 4). In the Motion, McBreairty made no effort to distinguish among
the Defendants and demanded that the Court enjoin them all “from taking action against
him on account of publishing the Article and the letter” or “from taking any action to try
to apply school policies” to him through such an action. 	Mot. for TRO/PI at 20. In effect,
McBreairty wanted the Court to enjoin any future litigation against him by any named
defendant so he would be free to publish his article without fear of legal reprisal.
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After considering the parties’ briefs and oral arguments, I denied McBreairty’s
request for a temporary restraining order but indicated I would hold an evidentiary hearing
to consider entry of a preliminary injunction. 	Order on Mot. for TRO/PI (ECF No. 30).
My stated concern was that there was as yet no evidentiary record to evaluate whether the
“government officials” might legitimately “petition a court to redress grievances they
harbor as a result of Plaintiff’s expressive activity,” and that a court order enjoining any
and all litigation by all of the named defendants (three of whom are individuals discussed
in McBreairty’s article) could involve a more severe transgression against the First
Amendment than the alleged affront to freedom that resulted from Attorney Hewey’s
“baseless” threats. Order on Mot. for TRO/PI at 1; Order on Mot. for Injunction Pending
Appeal at 2 (ECF No. 41).
Despite the indication that he would receive a prompt hearing, McBreairty appealed
the denial of the TRO. On May 16, 2024, the First Circuit dismissed McBreairty’s appeal.
On June 3, 2024, McBreairty passed away. However, Plaintiff’s counsel informed
the Court that McBreairty’s Estate wished to maintain both the action and the request for
injunctive relief. Notice Re. Pl.’s Mot. for PI (ECF No. 55). On August 15, 2024, Patricia
McBreairty, Mr. McBreairty’s widow, filed a Motion to Substitute, seeking to be
substituted as the party plaintiff in her capacity as Personal Representative of the Estate of
Shawn McBreairty (ECF No. 57). The Motion to Substitute was granted (ECF No. 58).
On September 30, 2024, Patricia McBreairty filed the pending Updated Motion for
Preliminary Injunction or, in the Alternative, an Injunction Pending Appeal (ECF No. 59).
In her Declaration (ECF No. 59-1) in support of the Motion, Patricia McBreairty states that
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it was Mr. McBreairty’s intent that the media be published without redaction and that it is
likewise her intent to publish the media, but only in the event that preliminary injunctive
relief shields her and the Estate from litigation over the article’s content. 	Despite my
skepticism over the appropriateness of an injunction barring the individual defendants from
petitioning the government for relief, Patricia McBreairty persists in her late husband’s
request that a preliminary injunction be entered against each and every named defendant.
However, she now emphasizes that her request only runs against the individual defendants
in their official capacities.
I held oral argument on December 4, 2024. During the hearing, it became apparent
that the Brewer School Department’s position has changed concerning the article at issue.
Specifically, Attorney Hewey explained that the Student graduated in the spring of 2024
and that the School Department’s remaining concerns over the content of the article are not
sufficiently momentous for the Department to take any action if the article is republished.2
Plaintiff was unmoved by this representation on the record and invited a more formal
arrangement by way of a written waiver or stipulation, although I am uncertain what more
that would add. I encouraged the parties to confer to determine if the plea for a preliminary
injunction could be resolved by being withdrawn as it appeared that it should be, and
observed that the merits would remain for adjudication in any event due to the substitution
of the Estate as Plaintiff. As reflected in a Status Report (ECF No. 73), the parties were
2 From early in this case, the School Department has made arguments indicative of its special concern for
the welfare of the Student, although it has also continued to mention the other students depicted in the
photograph taken inside the bathroom. See ECF No. 16 at 17.
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not able to reach a mutually satisfactory agreement, though it remains the case that the
School Department clearly indicated in open court that it no longer has an interest in
pursuing its threat of further action due to the graduation of the Student. Furthermore, the
paper trail associated with the parties’ discussion of a stipulation that could moot the
preliminary injunction motion contains a consistent representation from counsel for the
School Department. Specifically, Attorney Hewey indicated that her client was prepared
to accept a stipulation along the following lines:
An explicit agreement that Plaintiff and their assigns may freely publish the
Article, letter, and photograph, resolving that portion of the Updated [Motion
for Preliminary Injunction] seeking to ensure future publication.
See ECF No. 73 at 2; ECF No. 73-3 at 1.
P RELIMINARY INJUNCTION STANDARD
A preliminary injunction “is an ‘extraordinary and drastic remedy’” that “is never
awarded as of right.” Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645
F.3d 26, 32 (1st Cir. 2011) (quoting Munaf v. Geren, 553 U.S. 674, 689–90 (2008)). 	A
plaintiff seeking a preliminary injunction “must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an injunction is in the public interest.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). These “four elements are not
of equal prominence.” Akebia Therapeutics, Inc. v. Azar, 976 F.3d 86, 92 (1st Cir. 2020).
Rather, the “most important is whether the movant has demonstrated a likelihood of
success on the merits.” Id.
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D ISCUSSION
Plaintiff Patricia McBreairty comes before the Court as Personal Representative of
the Estate of Shawn McBreairty. 	She attests that she intends to republish the media that
Shawn McBreairty took down because that was his intent before his death and it is likewise
her intent to publish once the threat of litigation is addressed. Patricia McBreairty not only
wants to engage in this expressive activity, but states that the activity would be financially
beneficial to the Estate because a market exists for it.
Defendants maintain that Shawn McBreairty’s death has rendered moot any claim
for injunctive relief that would enjoin future litigation concerning McBreairty’s speech
activity. Related to the Defendants’ assertion of mootness, but having greater primacy, the
Court has an independent obligation to determine whether the current plea for a preliminary
injunction involves a “real and immediate threat of repeated injury.” 	Susan B. Anthony
List v. Driehaus, 573 U.S. 149, 158 (2014); see also Murthy v. Missouri, 603 U.S. 43, 56–
57 (2024) (“Federal courts can only review statutes and executive actions when necessary
‘to redress or prevent actual or imminently threatened injury to persons caused by . . .
official violation of law.’” (quoting Summers v. Earth Island Institute, 555 U.S. 488, 492
(2009)); O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (“Past exposure to illegal
conduct does not in itself show a present case or controversy regarding injunctive relief . . .
if unaccompanied by any continuing, present adverse effects.”). “The rule in federal cases
is that an actual controversy must be extant at all stages of review, not merely at the time
the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975). See also Goodwin
v. C.N.J., Inc., 436 F.3d 44, 48 (1st Cir. 2006).
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Given Shawn McBreairty’s death, the graduation of the Student, and (most recently)
Patricia McBreairty’s entry into the litigation as the representative of Shawn McBreairty’s
Estate, arguably the burden rests with Patricia McBreairty to persuasively demonstrate that
there remains an “imminently threatened injury” in need of injunctive relief. “[I]n a lawsuit
brought 	to 	force 	compliance, 	it 	is 	the 	plaintiff’s 	burden 	to 	establish 	standing 	by
demonstrating that, if unchecked by the litigation, the defendant’s allegedly wrongful
behavior will likely occur or continue, and that the ‘threatened injury [is] certainly
impending.’” Laidlaw, 528 U.S. at 190 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158
(1990)). 	Alternatively, the burden might rest with the Department to show that its
voluntary cessation of the threat of further action is bona fide. 	“[A] defendant invoking
the voluntary-cessation doctrine [to moot a case or part of a case] ‘bears the formidable
burden of showing that it is absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.’” 	Berge v. Sch. Comm. of Gloucester, 107 F.4th 33, 45
(1st Cir. 2024) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc.,
528 U.S. 167, 190 (2000)). Whichever burden applies in this case, I find that the dyad of
a death and a graduation sound mootness as far as the preliminary injunction effort is
concerned.
When it comes to the question of whether the threatened injury is certainly
impending, I find, based on Attorney Hewey’s representations in open court, made on
behalf of the Brewer School Department, that the ongoing preliminary injunction motion
no longer concerns a real and immediate threat of repeated injury. Cf. Berge v. Sch. Comm.
of Gloucester, 107 F.4th 33, 45 (1st Cir. 2024). 	Assuming, however, that a more
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“formidable burden” of voluntary-cessation governs this scenario, I find that the School
Department has demonstrated convincingly its voluntary cessation of its threat of further
action 	because 	Attorney 	Hewey’s 	blunt, 	open-court 	representation 	is 	a 	reasonable
assessment of the diminishing value of the School Department’s interest in challenging the
content of the article. In particular, upon the graduation of the Student, the sensitivity of
the article in terms of its impact on a member of the school community is dramatically
reduced to the point of vanishing. This explains the School Department’s position voiced
by its counsel at the oral argument that it “has no interest” in the article should Mrs.
McBreairty wish to publish it.
I also observe that several circuit courts augment the “formidable” standard in
voluntary-cessation scenarios when the party backing down is a government body. 	In
effect, they reason that government actors are entitled to a presumption of good faith and
that representations of an intent to end a challenged practice should be accepted absent
reason for doubt, evidence to the contrary, or a record demonstrating that the change is
solely a convenient response to litigation. See Clark v. Governor of New Jersey, 53 F.4th
769, 778 (3d Cir. 2022), cert. denied sub nom. Clark v. Murphy, 143 S. Ct. 2436 (2023);
Speech First, Inc. v. Schlissel, 939 F.3d 756, 767 (6th Cir. 2019); People for the Ethical
Treatment of Animals v. United States Dep’t of Agric., 918 F.3d 151, 157 (D.C. Cir.
2019); Fikre v. FBI, 904 F.3d 1033, 1037 (9th Cir. 2018); Ghailani v. Sessions, 859 F.3d
1295, 1302 (10th Cir. 2017); Ozinga v. Price, 855 F.3d 730, 734 (7th Cir. 2017); see also
13C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Juris. § 3533.7 (3d ed.
2008) (“Courts are more likely to trust public defendants to honor a professed commitment
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to changed ways; individual public defendants may be replaced in office by new
individuals, with effects that have little parallel as to private defendants; remedial
calculations may be shaped by radiations of public interest; administrative orders may seem
to die or evolve in ways that leave present or future impact unclear.”).
Although the Berge Court did not mention the presumption that government actors
act in good faith and, to my knowledge, the First Circuit has not expressly adopted that
gloss on the voluntary-cessation analysis outside of a state legislative context, Town of
Portsmouth v. Lewis, 813 F.3d 54, 59 (1st Cir. 2016), I conclude that the changes in
circumstances that have arisen in this case and Attorney Hewey’s representation in open
court are as compelling in terms of the voluntary-cessation inquiry as the circumstances
and representations at issue in Berge. In the final analysis, it is clear both that the School
Department has revoked its threat to take further action and that its change of position
reflects a reasoned response to intervening events and is not merely a cynical attempt to
avoid a preliminary injunction. I am therefore persuaded that there is no reason to expect
that the allegedly wrongful behavior will recur in the event Patricia McBreairty publishes
the article as originally authored by her husband.
This ruling does not prejudice Plaintiff from pursuing the merits of the case through
the conclusion of litigation. It merely reflects the reality that the School Department has
effectively revoked its threat of litigation, thereby removing the real and immediate threat
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of present and prospective injury.3 	I turn now to the supposed threat posed by the
individual defendants.
Although 	Patricia 	McBreairty 	requests 	an 	injunction 	against 	the 	individual
defendants in their official capacities, Reply at 4 (ECF No. 63), that supposed threat is
chimerical, entirely of Plaintiff’s imagination. 	In the first place, such a threat was not
actually communicated. The threat of further action was made, expressly, on behalf of the
Brewer School Department. Finding that the threat was made on behalf of the individual
defendants would be contrary to the language contained in Attorney Hewey’s first email.
If more were needed to dispatch this argument to its appropriate destination, here goes: the
individual defendants do not possess the authority to file a civil action to represent the
interests of the School Department or High School.4 So if one were to imagine that which
3 Because no real and immediate threat looms at this time, there may be no need to address Defendants’
challenge that Shawn McBreairty’s death, standing alone, mooted the cause for prospective relief. When
it comes to the impact of a plaintiff’s death on a claim for declaratory or injunctive relief, typically death
will moot the claim. See, e.g., Goodwin v. C.N.J., Inc., 436 F.3d 44, 49 (1st Cir. 2006); Procurador De
Personas Con Impedimentos v. Municipality of San Juan, 541 F. Supp. 2d 468, 473 (D.P.R. 2008); Glanz
v. Vernick, 750 F. Supp. 39, 43 (D. Mass. 1990). 	However, in some cases a suitable plaintiff can be
substituted to maintain the claim, provided it is apparent that the substitute “could benefit from the relief
and . . . is likely to experience the same or similar harm as the original plaintiff in the future.” Light v.
Town of Livermore, No. 1:21-cv-00266-JAW, 2022 WL 4016809, at *12 (D. Me. Sept. 2, 2022); see also
Goodwin, 436 F.3d at 48 (finding a claim for injunctive relief concerning employment was mooted by the
original plaintiff’s death because the death “eliminated any reasonable anticipation that” he or the
representative of his estate could “be faced with a recurrence of the alleged harm”). Here, it is not merely
the death of Shawn McBreairty that would moot the claim now pressed by the Estate, but rather the
combination of Shawn McBreairty’s death and the School Department’s change in position concerning the
need for any further action following the Student’s graduation from high school. 	When both of these
developments are factored together, it is plain that, even if the Estate could benefit from the preliminary
injunction, the Estate is not likely to experience the same or similar harm complained of by Shawn
McBreairty, which may have been sufficient for the Court to resort to the extraordinary remedy of a
preliminary injunction.
4 Plaintiff’s conception of an “official capacity” lawsuit brought by one of the individual defendants is an
odd formulation. As discussed in the body of this order, there is in fact no basis in the law to believe that
a superintendent, principal, or teacher could ever institute an “official capacity” lawsuit on behalf of a
municipality. They could only bring a lawsuit to vindicate their personal rights.
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does not exist in the record; to wit, that Attorney Hewey threatened out of circulation Mr.
McBreairty’s article on behalf of the individual defendants in their official capacities, such
a threat would obviously have been all hat but no cattle. The only party in this case that
could conceivably file an official proceeding against Patricia McBreairty concerning the
content of the article is the School Department itself, and that would require action on the
part of the City of Brewer’s elected representatives. Unilateral action on the part of one of
the individual defendants would not suffice. Neither Superintendent Palmer nor Principal
Slowikowski can institute a legal proceeding in his own name as substitute for the City of
Brewer or its School Department.5 	Nor can MacDonald, as a teacher, bring an action in
her own name on behalf of the municipality, school department, or public school for which
she works.
Because none of the individual defendants has the capacity to bring the official
capacity civil action that Patricia McBreairty asks me to enjoin there is no real threat of
imminent harm. This fear is a nonjusticiable bugbear. Additionally, even if I proceeded
5 Superintendent Palmer is empowered under Maine law to “enforce or cause to be enforced all rules of the
school board,” 20-A M.R.S. § 1055(7), but that is a far cry from authority to file civil actions on behalf of
the City of Brewer or its School Department. Indeed, Maine law does not even indicate that a municipal
school board has authority to pursue any and all manner of litigation concerning the interests of its schools
or community stakeholders. See, e.g., 20-A M.R.S. § 1001(5) (providing limited authority to school boards
to sue or be sued in relation to plans or programs for the payment of employee insurance premiums and
other employee benefits) and compare 20-A M.R.S. § 2412 (providing that a “public charter school” has
the power to “sue and be sued in its own name”) and § 3613 (providing that an “interstate school district”
is its own “body corporate and politic” with power to sue and be sued). In relation to bullying, Maine
school boards have a duty to address “workplace bullying” with a clear statement that it is prohibited and a
process for investigating and responding to incidents. Id. § 1001(22). This law modifies the relationship
of school boards and school employees, but it does not authorize litigation by school boards against third
parties who might bully school employees.
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past the question of whether there exists a justiciable preliminary injunction controversy,
Patricia McBreairty has failed to demonstrate a likelihood of success on the merits or an
irreparable injury in the absence of preliminary injunctive relief precisely because the only
defendant to the litigation who could chill her speech has disclaimed on the record any
desire to do so and the official litigation by way of the other defendants she says is chilling
her speech activity, despite the absence of any threat to do so, quite plainly cannot be
instituted by the individual defendants.6
CONCLUSION
Because Plaintiff’s idea of a threat of officially-sponsored litigation undertaken by
the individual defendants is illusory (and was not actually communicated on their behalf,
in any event), it would be imprudent to enjoin them against engaging in petitioning activity
in their official capacities. The same is not true of the Brewer School Department.
However, the School Department’s counsel stipulated in open court that the Department
has no abiding interest in the content of the article now that the student upon whom the
article focused has graduated and is no longer a member of the school community.
Although, as I have indicated in my prior rulings, the case may well be developed on the
merits that Plaintiff has sustained a constitutional harm by the School Department, at
present the School Department’s concession that it will not take further action related to
the publication of the article, Mr. McBreairty’s death, and the Student’s graduation from
6 Once again, Patricia McBreairty has abandoned any claim for injunctive relief against the individual
defendants in their personal capacities. I therefore express no opinion concerning their ability to bring a
civil action against Patricia McBreairty in their own names in the event Patricia McBreairty republishes the
article.
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the school remove from the case any threat of an imminent present or prospective harm in
need of preliminary injunctive relief. 	Accordingly, Plaintiff’s Updated Motion for a
Preliminary Injunction or, in the Alternative, an Injunction Pending Appeal (ECF No. 59)
is DENIED.7
SO ORDERED.
Dated this 10th day of January, 2025.
/s/ Lance E. Walker
Chief U.S. District Judge
7 In regard to Plaintiff’s alternative request for an injunction pending appeal, it is denied for the same
reasons. Furthermore, given the considerable travel of this case, it appears likely that the Court could rule
on the merits of cross-motions for summary judgment in about the time it might take the First Circuit to
review an appeal of this Order.
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