Robert A. Neinast v. Board of Trustees of the Columbus Metropolitan Library

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0363P (6th Cir.)
File Name: 03a0363p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ROBERT A. NEINAST,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF THE
COLUMBUS METROPOLITAN
LIBRARY; LARRY D. BLACK;
VONZELL L. JOHNSON,
Defendants-Appellees.
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No. 02-3482
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 01-00443—Algenon L. Marbley, District Judge.
Submitted: August 1, 2003
Decided and Filed: October 10, 2003
Before: KENNEDY, GILMAN, and GIBBONS, Circuit
Judges.
2 Neinast v. Bd. of Trs. of the
Columbus Metro. Library et al.
No. 02-3482
_________________
COUNSEL
ON BRIEF: Philomena M. Dane, Johnathan E. Sullivan,
SQUIRE, SANDERS & DEMPSEY, Columbus, Ohio, for
Appellees. Robert A. Neinast, Pickerington, Ohio, pro se.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Robert A.
Neinast, a patron of the Columbus Metropolitan Library
(Library) was evicted from the Library as a result of going
barefoot. Neinast brought suit against the Board of Trustees
of the Columbus Metropolitan Library (Board) and others
under 42 U.S.C. § 1983, claiming violations of his rights
under the First, Ninth, and Fourteenth Amendments of the
United States Constitution, Article I of the Ohio Constitution,
and Ohio Revised Code § 3375.40. All parties moved for
summary judgment. The district court granted summary
judgment in favor of defendants-appellees. For the reasons
set forth below, we affirm the judgment of the district court.
I.
Plaintiff-appellant Neinast, a resident of Pickerington,
Ohio, regularly goes barefoot and often uses the Library.
Defendant-appellee Board serves as the regulating authority
of the Library and is authorized by Ohio Revised Code
§ 3375.40 to “[m]ake and publish rules for the proper
operation and management of the free public library and
facilities under its jurisdiction, including rules pertaining to
the provision of library services to individuals, corporations,
or institutions that are not inhabitants of the county.”
Defendant-appellee Larry D. Black is the Executive Director

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of the Library, and defendant-appellee Vonzell Johnson is the
Assistant Manager of Security for the Library. Although the
Patron Regulations of the Library (approved by the Board) do
not contain a prohibition on using the Library without shoes,
the Library’s Eviction Procedure (approved by the Executive
Director) does provide that patrons not wearing shoes be
given a warning and be “asked to leave [the] premises to
correct the problem.”
On several different occasions between 1997 and 2001,
Neinast was asked to leave the Library for failure to comply
with the Library’s requirement that patrons wear shoes while
on its premises. Neinast first was asked to leave the Library
for not wearing shoes on September 12, 1997. On November
10, 2000, Neinast again was informed that he would have to
wear shoes in order to use the Library’s facilities and was
asked to leave. On January 23, 2001, Neinast was asked to
leave for the same reason. On March 2, 2001, Neinast again
entered the Library barefoot, and subsequently was
approached by two security officers and taken to the security
desk, where one of the officers, acting under the supervision
of Johnson, presented Neinast with a one-day eviction from
the Library.
After being asked to leave on November 10, 2000, Neinast
wrote a letter to Black dated November 16, 2000, and a letter
to the Board dated December 11, 2000, complaining of the
enforcement of the Eviction Procedure and the procedure’s
alleged inconsistency with the Patron Regulations. In a
response dated December 14, 2000, the Board informed
Neinast that Black had “the authority to make such decisions”
and that the Board believed that Black “had made the correct
one.” According to the Library Organization Policy, Black
(as the Executive Director) is responsible for “determining
internal policies and procedures, . . . public relations, relations
with the community and governmental agencies, and the
handling of all other matters involved with the operation of
the library system.”
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No. 02-3482
On January 19, 2001, Neinast wrote another letter
expressing his concerns about the prohibition on using the
Library without shoes, and on January 30, 2001, Black asked
the Franklin County Prosecutor’s Office “for the legal reasons
that [the Board] can give for requiring its customers to dress
appropriately for a public place.” In a letter dated February
7, 2001, the prosecutor’s office responded that in accordance
with Kreimer v. Bureau of Police of Morristown, 958 F.2d
1242 (3d Cir. 1992), “the Library may implement reasonable
rules for the operation of the Library or the conduct of Library
business, including a requirement that patrons wear shoes
while in the library.”
On March 5, 2001, following his one-day eviction from the
Library on March 2, 2001, Neinast sent another letter to
Black, the Board, and the prosecutor’s office. On March 12,
2001, Black informed Neinast that he had “been made aware
that we require our customers to wear shoes while using the
Columbus Metropolitan Library facilities” and that he had
been “provided a legal opinion . . . stating that the Library has
the legal authority to make and enforce such a rule,” and
concluding that the Library “will not respond to further
correspondence on this matter.”
On April 3, 2001, Neinast, acting pro se, filed a complaint
in the Franklin County Court of Common Pleas alleging
violations of 42 U.S.C. § 1983 based on deprivations of his
First, Ninth, and Fourteenth Amendment rights under the
United States Constitution and his rights under Article I of the
Ohio Constitution. Defendants-appellees removed this case
to the United States District Court for the Southern District of
Ohio on May 11, 2001 and filed an answer on May 24, 2001.
Neinast filed an amended complaint on June 27, 2001. On
July 9, 2001, defendants-appellees filed an answer to the
amended complaint. Both parties then filed motions for
summary judgment. On March 27, 2002, the district court
granted summary judgment in favor of defendants-appellees.
Neinast timely filed his notice of appeal on April 25, 2002.

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1At the district court level, Neinast also asserted that walking
barefoot constituted speech protected by the First Amendment, that the
shoe regulation violates his equal protection rights, and that the individual
defendants were not entitled to qualified immunity. The district court
found that Neinast’s practice of going barefoot in public buildings did not
qualify as symbolic speech, that his equal protection rights had not been
violated, and that the individual defendants were shielded from liability.
See Neinast v. Bd. of Trs. of Columbus Metro. Library, 190 F.Supp.2d
1044-46, 1048-49 (S.D.Ohio 2002). On appeal, Neinast does not
II.
A district court’s grant of a motion for summary judgment
is reviewed de novo. See Braithwaite v. The Timken Co., 258
F.3d 488 (6th Cir. 2001). Where the parties have filed cross-
motions for summary judgment, this court “evaluate[s] each
motion on its own merits and view[s] all facts and inferences
in the light most favorable to the nonmoving party.” Wiley v.
United States, 20 F.3d 222, 224 (6th Cir. 1994). However, an
opponent of a motion for summary judgment “may not rest
upon mere allegations or denials of his pleading, but . . . must
set forth specific facts showing that there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The party opposing the motion must “do more than
simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “If after reviewing the
record as a whole a rational factfinder could not find for the
nonmoving party, summary judgment is appropriate.”
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,
349 (6th Cir. 1998) (citing Matsushita, 475 U.S. at 587).
A.
Neinast claims that the Board’s enforcement of the
requirement that patrons of the Library wear shoes deprived
him of his right to receive information under the First and
Fourteenth Amendments.1 The district court assumed that
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Columbus Metro. Library et al.
No. 02-3482
challenge these conc lusions.
Neinast had a First Amendment right of access to the Library,
but rejected his claim, finding the Board’s requirement that
patrons of the Library wear shoes to be “a valid, content-
neutral regulation that promotes communication of the written
word in a safe and sanitary condition.” Neinast v. Bd. of Trs.
of Columbus Metro. Library, 190 F.Supp.2d 1040, 1044
(S.D.Ohio 2002). The district court concluded that “to the
extent that it limits Plaintiff’s right of access to speech, the
Library’s shoe regulation satisfies this intermediate scrutiny.”
Id. Neinast now argues that the presence of feces, semen,
blood, and broken glass in or around the library system, as
established by incident reports, fails to represent any danger
to barefooted patrons. Neinast asserts that “the shoe policy is
substantially broader than necessary, even if one assumes that
the Library’s incidents constitute hazards to barefooted
persons.” Neinast also claims that the Board’s claim of a
substantial governmental interest in public safety represents
“an expansion of the police power beyond its traditional
boundaries.”
The First Amendment protects the right to receive
information. Stanley v. Georgia, 394 U.S. 557, 564 (1969)
(“It is now well established that the Constitution protects the
right to receive information and ideas.”). This right to receive
information “includes the right to some level of access to a
public library, the quintessential locus of the receipt of
information.” Kreimer v. Bureau of Police for the Town of
Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992); see also
Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577, 582
(6th Cir. 1976) (“A library is a mighty resource in the free
marketplace of ideas.”); Armstrong v. Dist. of Columbia Pub.
Library, 154 F.Supp.2d 67, 75 (D.D.C. 2001) (noting the
existence of “long-standing precedent supporting plaintiff’s
First Amendment right to receive information and ideas, and
this right’s nexus with access to public libraries”).

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For the purposes of First Amendment analysis, the Library
is a limited public forum. Kreimer, 958 F.2d at 1259; Sund
v. City of Wichita Falls, Texas, 121 F.Supp.2d 530, 548
(N.D.Tex. 2000); Mainstream Loudon v. Bd. of Trs. of
Loudon County Library, 24 F.Supp.2d 552, 563 (E.D.Va.
1998). As such, the Library “is obligated only to permit the
public to exercise rights that are consistent with the nature of
the Library and consistent with the government’s intent in
designating the Library as a public forum.” Kreimer, 958
F.2d at 1262. Traditionally, libraries provide a place for
“reading, writing, and quiet contemplation.” Id. at 1261. Not
all aspects of a library involve the right to receive
information, however. For example, a library that consisted
of a card catalog, a circulation desk, and closed stacks would
be perfectly capable of allowing patrons to exercise their right
to receive information, but would not be a place where
patrons could read, write, and quietly contemplate.
As previously noted, the requirement for our consideration
provides for the denial of access to the Library based upon a
patron’s failure to wear shoes. In Ward v. Rock Against
Racism, the United States Supreme Court reviewed a
regulation in which the government “regulate[d] expression”
according to a heightened standard of scrutiny. 491 U.S. 781,
791 (1989). Moreover, the Court held that “the government
may impose reasonable restrictions on the time, place, or
manner of protected speech, provided the restrictions ‘are
justified without reference to the content of the regulated
speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample
alternative channels for communication of the information.’”
Id. (quoting Clark v. Community for Creative Non-Violence,
468 U.S. 288, 293 (1984)).
In Ward, the Court reviewed use guidelines promulgated by
the City of New York that only the City could provide sound
equipment and sound technicians for performances given at
the Central Park Bandshell. Id. at 788. The guidelines
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No. 02-3482
summarized their purpose as “insur[ing] appropriate sound
quality balanced with respect for nearby residential neighbors
and the mayorally decreed quiet zone of Sheep Meadow.” Id.
The Ward guidelines regulation, albeit content-neutral,
restricted the volume of speech, and in so doing, had a direct
impact on speech. While the Library regulation at issue in
this case is also content-neutral, it does not directly impact the
right to receive information. Therefore, applying the
heightened scrutiny standard of Ward to the Library
regulation is not appropriate.
Instead we review the Library regulation under a rational
basis standard. See Thompson v. Ashe, 250 F.3d 399, 407
(6th Cir. 2001) (holding that where there has been no
infringement of a fundamental right, review under a rational
basis standard is appropriate); Memphis Am. Fed’n of
Teachers, Local 2032 v. Bd. of Ed. of Memphis City Sch., 534
F.2d 699, 703 (6th Cir. 1976) (same). “The rational basis test
requires the court to ensure that the government has employed
rational means to further its legitimate interest.” Peoples
Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 532 (6th
Cir. 1998). Moreover, “[u]nder the rational basis review, a
court usually will uphold regulations because ‘the state’s
important regulatory interests are generally sufficient to
justify them.’” Citizens for Legislative Choice v. Miller, 144
F.3d 916, 921 (6th Cir. 1998) (quoting Anderson v.
Celebrezze, 460 U.S. 780, 788 (1983)). The Library
regulation survives rational basis review because the
regulation provides a rational means to further the legitimate
government interests of protecting public health and safety
and protecting the Library’s economic well-being by seeking
to prevent tort claims brought by library patrons who were
injured because they were barefoot.
B.
Even if we were to conclude that heightened scrutiny is
appropriate in the instant case, we believe that the Library

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regulation would meet this standard. The requirement that
patrons of the Library wear shoes is “narrowly tailored to
serve a significant governmental interest” and “leave[s] open
ample alternative channels for communication of
information.” Ward, 491 U.S. at 791.
In Kreimer, a homeless man challenged several public
library rules regulating patron behavior, one of which
provided that:
Patrons shall not be permitted to enter the building
without a shirt or other covering of their upper bodies or
without shoes or other footwear. Patrons whose bodily
hygiene is offensive so as to constitute a nuisance to
other persons shall be required to leave the building.
958 F.2d at 1248. The district court found the rule to be “null
and void on [its] face” and enjoined the Library from
enforcing the rule, but later modified its order, explaining
“that it was not invalidating the rule[] to the extent that [it]
required the wearing of shoes or shirts.” Id. at 1250. The
Library appealed, and the Third Circuit reversed the district
court. The court noted that the Library “has a significant
interest in ensuring that ‘all patrons of the [Library] [can] use
its facilities to the maximum extent possible during its
regularly scheduled hours.’” Id. at 1264 (emphasis in
original). The court explained that the invalidated portion of
the rule “prohibits one patron from unreasonably interfering
with other patrons’ use and enjoyment of the Library” and
“further promotes the Library’s interest in maintaining its
facilities in a sanitary and attractive condition.” Id. In dicta,
the court added that the Library’s rules need not “condition
exclusion upon actual or imminent disruption.” Id. The court
also suggested that the portion of the rule requiring patrons to
wear shoes would pass constitutional muster:
[I]t seems obvious that the Library may regulate conduct
protected under the First Amendment which does not
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No. 02-3482
actually disrupt the Library. . . . Indeed, the district court
itself implicitly acknowledged this point when it
modified its order so that it did not invalidate the rule
requiring the wearing of shoes, since it can hardly be
imagined that a person simply by being barefoot would
disrupt the Library.
Id. at 1263 n.25.
In this case, Neinast argues that he was “using the Library
for its intended purpose when he was asked to leave, and that
his bare feet did not disrupt the library.” As the Third Circuit
observed in Kreimer, however, “the Library is not confined to
prohibiting behavior that is actually disruptive.” 958 F.2d at
1264 n.28. Here, according to the Board, the requirement that
patrons of the Library wear shoes was promulgated “in order
to protect the safety of Library patrons from documented
hazards within the Library – including blood, feces, semen
and broken glass that have, on occasion, been found there.”
Specifically, in an affidavit dated August 2, 2001, Black
stated that he approved the requirement that patrons of the
Library wear shoes in order to protect “the health and safety
of Library patrons, who may be harmed in the Library if
allowed to enter barefoot” and “the economic well-being of
the Library, by averting tort claims and litigation expenses
stemming from potential claims made by barefoot patrons
who could have suffered injuries that shoes could have

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2Neinast argues that the Board’s stated interests are not genuine and
notes that the Eviction Guidelines refer only to “[i]nappropriate dress,”
while making no m ention of health and safety or economic well-being.
There is some evidence in the record suggesting that the Board had an
interest in requiring pro per attire. As previously mentio ned, in a letter to
the Franklin County Prosecutor’s Office dated January 30, 2001, Black
requested “the legal reasons that [the Library] can give for requiring its
customers to dress appropriately for a public place.” As the Supreme
Court has noted, in the intermediate scrutiny context the state is expected
“to give its real reasons for passing an ordinance.” Watchtower Bible and
Tract Soc’y of New York, Inc. v. Vill. of Stratton, 536 U.S. 150, 170
(2002) (Breyer, J., concurring). However, the Court also explained that
the state may “rely on the rationale in the courts below,” as long as the
reviewing court itself “does not supply reasons.” Id. at 169-70. In this
case, the interests advanced by the Bo ard in the district court and on
appeal are reflected in Black’s affidavit. Neither the district court nor this
court manufactured these reasons. Consequently, consideration of the
Bo ard’s stated interests in health and safety and econ omic well-being is
appropriate.
prevented.”2 These concerns qualify as significant
governmental interests.
“Throughout our history the several States have exercised
their police powers to protect the health and safety of their
citizens. Because these are primarily, and historically, . . .
matter[s] of local concern, the States traditionally have had
great latitude under their police powers to legislate as to the
protection of the lives, limbs, health, comfort, and quiet of all
persons.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996)
(quotations and citations omitted). Here, the Board has
provided incident reports documenting various hazards to
barefoot patrons, including the presence of feces on the floor
of the restroom and in the reading area (JA 133, 153, 163,
176, 197, 212, 250, 252, 254, 256, 257), vomit on the floor of
the restroom and in the children’s area (JA 170, 224), broken
ceiling tiles on the floor of the restroom (JA 134), splintered
chair pieces in the children’s area (JA 140), drops of blood on
the floor of the restroom (JA 184), urine in the elevator, on
the floor of the bathroom, on a chair in the reading area, and
12 Neinast v. Bd. of Trs. of the
Columbus Metro. Library et al.
No. 02-3482
on the floor of the reading area (JA 161, 165, 168, 176, 266,
276, 291), and broken glass in the lobby (JA 185). The Board
also has submitted reports describing incidents where a patron
scraped his arm on a staple in the carpet in the meeting room,
causing bleeding (JA 260), where a patron’s foot went into a
gap between the bottom of a door and the ground, causing a
cut (JA 297), and where a barefoot patron’s toe was caught in
a door, causing bleeding and requiring the assistance of
paramedics (JA 301). The Board thus has demonstrated the
existence of a significant health and safety risk to individual
barefoot patrons.
Having established the existence of a significant risk of
harm to individual barefoot patrons, this court next must
determine whether a significant cost to the general public also
has been shown. “To justify the state in . . . interposing its
authority in behalf of the public, it must appear – First, that
the interests of the public . . . require such interference; and,
second, that the means are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive
upon individuals.’” Fair Hous. Advocates Ass’n, Inc. v. City
of Richmond Heights, Ohio, 209 F.3d 626, 643 (6th Cir.
2000) (quoting Lawton v. Steele, 152 U.S. 133, 137 (1894)).
Courts consistently have upheld statutes primarily directed at
preventing injury to an individual on the basis of the impact
upon the general public. See, e.g., Picou v. Gillum, 874 F.2d
1519, 1522 (11th Cir. 1989) (noting that although the
“primary aim” of a state statute requiring motorcycle riders to
wear protective headgear “is prevention of unnecessary injury
to the cyclist himself,” the “costs of this injury may be borne
by the public”).
Here, the Board’s stated rationale for its requirement that
patrons of the Library wear shoes is not only to protect
individual barefoot patrons from harm to themselves, but also
to protect the general public “by averting tort claims and
litigation expenses stemming from potential claims by
barefoot patrons who could have suffered injuries that shoes

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could have prevented.” Avoiding the expense of litigation is
a legitimate governmental interest. See Listle v. Milwaukee
County, 138 F.3d 1155, 1160 (7th Cir. 1998). Injuries
suffered by individual barefoot patrons of the Library also
impose broader societal costs. In this case, the Board has
presented evidence that on at least one occasion paramedics
were summoned to assist a barefoot patron who suffered an
injury to her feet while in the Library. Describing the costs
borne by the general public as a result of the failure of
motorcyclists to wear helmets, the Eleventh Circuit explained
that “[s]tate and local governments provide police and
ambulance services, and the injured cyclist may be
hospitalized at public expense.” Picou, 874 F.2d at 1522.
Similarly, in this case barefoot patrons of the Library who are
injured as a result of the hazards previously described impose
costs on the general public. For these reasons, we conclude
that the Board has demonstrated a significant governmental
interest in requiring that patrons of the Library wear shoes.
In addition, the Board’s requirement that patrons of the
Library wear shoes is sufficiently narrow. In order to satisfy
the “narrowly tailored” requirement, a regulation “need not be
the least restrictive or least intrusive means” of serving the
government’s legitimate, content-neutral interests. Ward, 491
U.S. at 798. All that is required is “a fit that is not necessarily
perfect, but reasonable; that represents not necessarily the
single best disposition but one whose scope is in proportion
to the interest served.” Bd. of Trs. of State Univ. of New York
v. Fox, 492 U.S. 469, 480 (1989) (quotation omitted).
Neinast argues that the requirement that patrons of the Library
wear shoes is not narrowly tailored because although the
documented hazards occurred “almost exclusively in the
restrooms or outside the Library building,” the challenged
provision requires that patrons wear shoes “everywhere in the
Library buildings, even amongst the books.” Close scrutiny
of the record, however, reveals that hazards to barefoot
patrons can be found throughout the Library buildings.
Specifically, the Board has provided evidence that on one
14 Neinast v. Bd. of Trs. of the
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No. 02-3482
occasion feces was found among the books (JA 212), that on
one occasion vomit was found in the children’s area (JA 224),
that on one occasion splintered pieces of a chair were found
in the children’s area (JA 140), that on three occasions urine
was found in the elevator and in the reading area (JA 161,
266, 291), that on one occasion broken glass was found in the
lobby (JA 185), and that on one occasion a staple was found
in the carpet of the reading room (JA 260). In light of the fact
that the Board has documented the presence of hazards
throughout the Library buildings, we find the requirement that
patrons wear shoes to be narrowly tailored.
Finally, the requirement that patrons wear shoes leaves
open alternative channels for communication. “[S]o long as
a patron complies with the rules, he or she may use the
Library’s facilities.” Kreimer, 958 F.2d at 1264. In this case,
as long as Neinast wears shoes, he may receive information
in the Library. Consequently, Neinast may be prohibited
from going barefoot while in the limited public forum of the
Library.
C.
Neinast asserts that the Board’s enforcement of the
requirement that patrons of the Library wear shoes deprived
him of his right of personal appearance under the First, Ninth,
and Fourteenth Amendments. Specifically, Neinast argues
that the district court erred by failing “to recognize, as a
matter of law, the existence of the right of personal
appearance, either as a fundamental right or as a protected
liberty interest.” Neinast claims that while rational basis
review may be appropriate in situations involving government
employees, the instant case requires strict scrutiny, since it
involves “a member of the general public.”
In Kelley v. Johnson, 425 U.S. 238 (1976), the Supreme
Court observed that “whether the citizenry at large has some
sort of ‘liberty’ interest within the Fourteenth Amendment in

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matters of personal appearance is a question on which this
Court’s cases offer little, if any, guidance.” Kelley, 425 U.S.
at 244. Although the Court went on to assume, for the
purposes of the case, that a liberty interest existed, it did not
affirmatively acknowledge such an interest. Id. However, a
considerable body of precedent suggests the existence of a
liberty interest in one’s personal appearance.
In general, “[l]iberty under law extends to the full range of
conduct which the individual is free to pursue.” Bolling v.
Sharpe, 347 U.S. 497, 499 (1954); see also Poe v. Ullman,
367 U.S. 497, 543 (1961) (Harlan, J., dissenting) (describing
liberty as “a rational continuum which, broadly speaking,
includes a freedom from all substantial arbitrary impositions
and purposeless restraints”). Other circuits specifically have
found the existence of a liberty interest in personal
appearance. See DeWeese v. Town of Palm Beach, 812 F.2d
1365, 1367 (11th Cir. 1987) (prohibiting shirtless male jogger
unreasonable); Domico v. Rapides Parish Sch. Bd., 675 F.2d
100, 101 (5th Cir.1982) (noting that “there is a constitutional
liberty interest in choosing how to wear one’s hair”). “[S]ince
Kelley, the nation’s courts have assumed or found [a liberty
interest] in a veritable fashion show of different factual
scenarios.” Zalewska v. County of Sullivan, New York, 316
F.3d 314, 321 (2d Cir. 2003).
Assuming the existence of a liberty interest in personal
appearance, we must next determine whether the Board
unconstitutionally infringed upon Neinast’s liberty interest by
mandating that he wear shoes in the Library. The Sixth
Circuit previously has held that personal appearance is not a
fundamental right. See Gfell v. Rickelman, 441 F.2d 444, 446
(6th Cir. 1971) (“We are unable to agree with some courts
that the freedom of choosing one’s hair style is a fundamental
right.”). Since the Board’s requirement that patrons of the
Library wear shoes does not implicate a fundamental right, it
is subject to rational basis scrutiny. See DeWeese, 812 F.2d
at 1367; see also Domico, 675 F.2d at 102; Rathert v. Vill. of
16 Neinast v. Bd. of Trs. of the
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No. 02-3482
Peotone, 903 F.2d 510, 514 (7th Cir. 1990) (reviewing village
regulation prohibiting off duty police officers from wearing
ear studs under rational basis test).
“Even foolish and misdirected provisions are generally
valid if subject only to rational basis review.” Craigmiles v.
Giles, 312 F.3d 220, 223-24 (6th Cir. 2002). Consequently,
this court will not overturn the Board’s requirement that
patrons of the Library wear shoes unless the varying treatment
of barefoot persons “is so unrelated to the achievement of any
combination of legitimate purposes that we can only conclude
that the [Board’s] actions were irrational.” Kimel v. Florida
Bd. of Regents, 528 U.S. 62, 84 (2000) (quotation omitted).
In order to prevail, Neinast must negate “every conceivable
basis that might support” the requirement that patrons wear
shoes. Craigmiles, 312 F.3d at 224 (quoting Lehnhausen v.
Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). Here,
as previously discussed, the Board has made the reasonable
determination that the requirement that patrons of the Library
wear shoes is necessary to protect both “the health and safety
of Library patrons, who may be harmed in the Library if
allowed to enter barefoot,” and “the economic well-being of
the Library, by averting tort claims and litigation expenses
stemming from potential claims made by barefoot patrons
who could have suffered injuries that shoes could have
prevented.” Consequently, the Board’s requirement that
patrons of the Library wear shoes satisfies rational basis
review.
D.
Neinast claims that Black presently is “enforcing a barefoot
policy that is not authorized by State Law” or by the Board,
and that Johnson “enforced that barefoot policy in a manner
sanctioned by neither State Law, nor the Eviction Procedure,”
thereby depriving Neinast of procedural due process. These
claims lack merit.

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No. 02-3482 Neinast v. Bd. of Trs. of the
Columbus Metro. Library et al.
17
3Neinast mischaracterizes the extent of the authority granted to Black
by the Board . As previously noted , Black was not merely limited to
“internal policies and procedures,” b ut also was responsible for “pub lic
First, Neinast cannot base his procedural due process claim
on the Board’s allegedly “improper adoption of a rule of
general applicability.” Reichelt v. Gates, 967 F.2d 590, 1992
WL 127057, at *2 (9th Cir. June 11, 1992) (citing United
States v. Florida East Coast Ry. Co., 410 U.S. 224, 244-46
(1973)). “Governmental determinations of a general nature
that affect all equally do not give rise to a due process right to
be heard.” Nasierowski Bros. Inv. Co. v. City of Sterling
Heights, 949 F.2d 890, 896 (6th Cir. 1991). Since the
requirement that all patrons of the Library wear shoes is of
general applicability, Neinast’s procedural due process rights
have not been violated with respect to the provision’s
adoption.
Neinast admits that the Board “properly promulgated their
Patron Regulations,” but observes that the Patron Regulations
themselves contain no express requirement that patrons of the
Library wear shoes. However, the issue of whether the
Board’s delegation of authority to the Executive Director to
establish the Eviction Procedures was proper is a matter of
state law. Section 1983, upon which Neinast bases his claim,
authorizes courts to redress violations of “rights, privileges,
or immunities secured by the Constitution and [federal] laws”
that occur under color of state law. “The statute is thus
limited to deprivations of federal statutory and constitutional
rights. It does not cover official conduct that allegedly
violates state law.” Huron Valley Hosp., Inc. v. City of
Pontiac, 887 F.2d 710, 714 (6th Cir. 1989) (citing Baker v.
McCollan, 443 U.S. 137, 146 (1979)). Neinast concedes that
the Board’s delegation of authority to Black “regarding
internal polices and procedures” was proper, but argues that
Black “was not granted the authority to create and enforce an
external regulation.”3 Neinast’s claim turns upon a question
18 Neinast v. Bd. of Trs. of the
Columbus Metro. Library et al.
No. 02-3482
relations, relations with the community, . . . and the handling of all other
matters involved with the operation of the library system.”
of state law – namely, the amount of rulemaking authority the
Board properly can delegate to its Executive Director under
Ohio Revised Code § 3375.40 – and thus falls outside the
scope of § 1983.
With regard to his second claim, Neinast argues that the
procedures employed by Johnson when serving Neinast with
a one-day eviction from the Library departed from the
Eviction Procedure, thereby depriving him of procedural due
process. The Eviction Procedure states that patrons wearing
“inappropriate dress, to include but not be limited to: no shirts
and no shoes” are to be “asked to leave [the] premises to
correct the problem.” After violating this provision on
March 2, 2001, however, Neinast was served with a one-day
eviction for a violation described as “improper dress/staff
harassment.”
While “[t]he touchstone of due process is protection of the
individual against arbitrary action of government,” Wolff v.
McDonnell, 418 U.S. 539, 558 (1974), the fact that Johnson
did not follow the Eviction Procedure, standing alone, does
not establish a denial of due process. “Due process of law
guarantees ‘no particular form of procedure; it protects
substantial rights.’” Mitchell v. W. T. Grant Co., 416 U.S.
600, 610 (1974) (quoting NLRB v. Mackay Co., 304 U.S. 333,
351 (1938)). It is unclear what level of process Neinast
claims he was entitled to receive. The Supreme Court has
observed that “‘[d]ue process is flexible and calls for such
procedural protections as the particular situation demands.’”
Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). At a
minimum, however, “‘[p]arties whose rights are to be affected
are entitled to be heard; and in order that they may enjoy that
right they must first be notified.’” Goss v. Lopez, 419 U.S.

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No. 02-3482 Neinast v. Bd. of Trs. of the
Columbus Metro. Library et al.
19
565, 579 (1975) (quoting Baldwin v. Hale, 1 Wall. 223, 233,
17 L.Ed. 531 (1864)). Here, immediately prior to Neinast’s
eviction on March 2, 2001, Chris Taylor (another employee
of the Library) and Johnson discussed the eviction procedure
with Neinast. Neinast was notified of the charges against him
by Johnson, who stated that “he was harassing the staff by
continuing to come in without his shoes on.” Neinast
expressed his disagreement and “reminded [Taylor and
Johnson] that [the Library’s] procedure only states that [the
Library] may ask him to leave.” Neinast thus was provided
with notice of the charges against him and “‘an opportunity
to present his side of the story.’” Boals v. Gray, 775 F.2d
686, 690 (6th Cir. 1985) (quoting Goss v. Lopez, 419 U.S.
565, 581 (1975)). Regardless of what procedure is generally
due when a patron of a public library contests charges giving
rise to a proposed short-term eviction, under the particular
facts of this case the procedure by which Neinast was evicted
was constitutional. Consequently, summary judgment for
defendants-appellees was proper.
III.
For all of the foregoing reasons, we affirm the judgment of
the district court.

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