Case 2:15-cv-02355 Document 1 Filed 03/31/15 Page 1 of 18 Page ID #:1

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ROBERT CORN-REVERE (pro hac vice application to be filed)
bobcornrevere@dwt.com
RONALD G. LONDON (pro hac vice application to be filed)
ronnielondon@dwt.com
LISA B. ZYCHERMAN (pro hac vice application to be filed)
lisazycherman@dwt.com
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Avenue, NW, Ste. 800
Washington, DC 20006
Telephone: (202) 973-4200

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ROCHELLE L. WILCOX (State Bar No. 197790)
rochellewilcox@dwt.com
DAVIS WRIGHT TREMAINE LLP
865 South Figueroa Street, Suite 2400
Los Angeles, California 90017
Telephone: (213) 633-6800
Fax: (213) 633-6899

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Attorneys for Plaintiff Nicolas Tomas

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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NICOLAS TOMAS,

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Plaintiff,
v.

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SORAYA M. COLEY, BYRON E.
HOWLETT, JR., LA’KEISHA
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MARIE FOISY
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Defendants.
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Case No.

2:15-cv-2355

COMPLAINT FOR INJUNCTIVE
AND DECLARATORY RELIEF
AND DAMAGES

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I. INTRODUCTION
1.

Although the Supreme Court has made clear that “state colleges and

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universities are not enclaves immune from the sweep of the First Amendment,”

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Healy v. James, 408 U.S. 169, 180 (1972), California State Polytechnic University –
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PLAINTIFF’S COMPLAINT FOR INJUNCTIVE
AND DECLARATORY RELIEF AND DAMAGES

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Pomona (“Cal Poly Pomona”) has prevented Plaintiff Nicolas Tomas from
distributing literature on campus protesting the large-scale mistreatment of farm

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animals. Campus police have been called to the scene on more than one occasion

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when Tomas was doing nothing more than expressing his views peacefully in public

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areas of campus, and Tomas has been threatened with sanctions if he did not cease

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handing literature to passers-by.
2.

Cal Poly Pomona’s policies restrict speech across the board, requiring

the Plaintiff to obtain a “permit” to distribute handbills and confining his expressive

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activities to the university’s tiny “free speech zone,” which comprises less than

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0.01% of the campus. Such policies cannot be reconciled with the basic First

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Amendment precepts that “[t]he college classroom with its surrounding environs is

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peculiarly the ‘marketplace of ideas,’” id.at 180, and that “[a] primary purpose of a

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college or university is to contribute to the exchange of ideas.” Jews for Jesus, Inc.

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v. City College of San Francisco, No. C 08-03876, 2009 WL 86703, at *3 (N.D.
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Cal. Jan. 12, 2009).

As a consequence, “sidewalks and plazas on a publicly-

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supported college campus constitute a public forum.” Id.

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3.

This is a civil rights action to protect and vindicate the First and

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Fourteenth Amendment rights of Nicolas Tomas and his fellow students at Cal Poly

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Pomona. By policy and practice, Cal Poly Pomona unlawfully restricts students’

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constitutional rights to free expression and has acted in the past to restrict Plaintiff’s

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PLAINTIFF’S COMPLAINT FOR INJUNCTIVE
AND DECLARATORY RELIEF AND DAMAGES

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constitutional rights. Accordingly, Cal Poly Pomona’s policies and enforcement
practices are challenged on their face and as applied to the Plaintiff.

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II. JURISDICTION AND VENUE

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4.

This action arises under the United States Constitution, particularly the

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First and Fourteenth Amendments, and the Civil Rights Act, 42 U.S.C. §§ 1983 and
1988.
5.

This Court has original jurisdiction over these federal claims pursuant

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to 28 U.S.C. §§ 1331 and 1343.
6.

This Court has authority to grant the requested declaratory judgment

pursuant to 28 U.S.C. §§ 2201 and 2202 and Federal Rule of Civil Procedure 57.

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7.

This Court has authority to issue the requested injunctive relief

pursuant to 42 U.S.C. § 1983 and Federal Rule of Civil Procedure 65.
8.

This Court has authority to award attorney’s fees and costs pursuant to

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42 U.S.C. § 1988.
9.

Venue is proper in the United States District Court for the Central

District of California pursuant to 28 U.S.C. § 1391(b) because the events giving rise

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to the instant claim occurred within this District and because at least one Defendant
resides in this District.

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III. PLAINTIFF

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10.

Plaintiff Nicolas Tomas is a resident of El Monte, California, who is

presently a student at Cal Poly Pomona. Tomas is the founder and president of the
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PLAINTIFF’S COMPLAINT FOR INJUNCTIVE
AND DECLARATORY RELIEF AND DAMAGES

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Vegan Earth Collective, a registered student group, whose members believe
veganism is a stance against animal cruelty and a solution to the widespread social

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justice issue of animal rights.

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IV. DEFENDANTS

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11.

Defendant Soraya M. Coley became president of Cal Poly Pomona, a

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public university organized and existing under the laws of the State of California,

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on January 1, 2015. She is Cal Poly Pomona’s chief executive officer, responsible

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for the University’s administration and policymaking and has ultimate authority to
approve the policies and procedures challenged herein that were applied to deprive
Plaintiff of his constitutional rights. Defendant Coley acted under color of state law

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and is sued for injunctive relief in her official capacity.
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Defendant Byron E. Howlett, Jr. is Acting Associate Vice President

and Dean of Students at Cal Poly Pomona. Defendant Howlett acted under color of

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state law and is sued in his official capacity.
13.

Defendant La’Keisha Gilford-Beard is Acting Director of the Office of

Student Life and Cultural Centers at Cal Poly Pomona. Defendant Beard acted

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under color of state law and is sued in her official capacity.
14.

Defendant Renee Marie Foisy is a campus police officer at Cal Poly

Pomona. Defendant Foisy acted under color of state law and is sued in both her

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personal and official capacities.

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AND DECLARATORY RELIEF AND DAMAGES

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V. STATEMENT OF FACTS
A.

Cal Poly Pomona’s Suppression of Plaintiff’s Free Speech Rights

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On February 4, 2015, Plaintiff and three other non-student activists

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distributed literature about farm animal abuse and the vegan lifestyle on a sidewalk

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near the Administration building in a central area of the Cal Poly Pomona campus.

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After engaging passers-by without incident for about an hour, Tomas’s

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three colleagues left the area while Plaintiff continued distributing leaflets.
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No more than five minutes after the others departed, Defendant Renee

Marie Foisy, a Cal Poly Pomona campus police officer, approached Plaintiff. Two

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other campus police officers stood nearby.
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When Plaintiff inquired whether everything was okay, Defendant Foisy

replied “No. You don’t have a permit to hand out flyers.” She directed Tomas to

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obtain a permit from the Cal Poly Pomona Office of Student Life, and informed

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Plaintiff that once he obtained a permit he would only be allowed to leaflet in “a

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designated area” on campus.
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As he was leaving the area, Plaintiff passed Michael Ortiz, President of

Cal Poly Pomona from 2003 through 2014. When Tomas explained he had just

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been asked to leave because he had been distributing literature, Ortiz told Plaintiff

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“you need to get permission to distribute that literature” and referred Tomas to the

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“student affairs office.”

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When Defendant Foisy forced Plaintiff to stop handing out flyers, it

was the second time in two weeks that the university police had been called to

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restrict his expressive activities.
21.

On January 21, 2015, Tomas stopped by a booth run by the university

parking services at an outdoor information fair to voice his opinion that campus

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officers earned excessive salaries for a public institution.

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conversation with officers at the booth, Defendant Foisy and Officer Kenneth A.

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After initiating a

Kerkhof arrived via squad car, approached Plaintiff, and asked whether Tomas was

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familiar with the campus “free speech zone.” Kerkhof suggested it would be more

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appropriate for Tomas to “go over there” where he could say anything he wanted as

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long as it “wasn’t inciteful [sic].”

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22.

On December 1, 2014, Plaintiff met with Defendants Byron Howlett

and La’Keisha Gilford-Beard to express his concerns about Cal Poly Pomona’s free

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speech restrictions. Defendants Howlett and Gilford-Beard gave Tomas copies of
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Cal Poly Pomona speech policies and insisted that Tomas was required to obtain

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approval from the Office of Student Life before engaging in expressive activities on

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campus. Specifically, Defendants Howlett and Gilford-Bear gave Tomas copies of:

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(a) an “Interim University Grounds And Facilities Policy,” Ex. A; (b) an “Interim

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Freedom of Expression Policy,” Ex. B; and (c) a document marked “Time, Place,

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and Manner Restrictions,” Ex. C.

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Defendants Howlett and Gilford-Beard also maintained that Cal Poly

Pomona could withhold authorization for any activity involving free expression that

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was not scheduled during weekly business hours, thus precluding Plaintiff’s ability

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to share his beliefs on campus outside of administrative working hours.

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Cal Poly Pomona’s policies create numerous roadblocks to free

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expression and have forced Plaintiff to curtail his outreach activities.

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B.

Cal Poly Pomona’s Unconstitutional Speech Policies

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Expressive activities at Cal Poly Pomona are regulated by several

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policies including (a) a 2008 Presidential Order on Use of University Buildings,
Facilities or Grounds (“2008 Presidential Order”), Ex. D; and (b) a 2014
Presidential Order on Use of University Buildings, Facilities or Grounds (“2014

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Presidential Order”), Ex. E.
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Together, the policies establish an unconstitutional “free speech zone”

and impose unconstitutional prior restraints on expressive activities that limit free

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expression at Cal Poly Pomona.
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The policies are contradictory, confusing, and do not provide adequate

notice to students regarding Cal Poly Pomona’s policies on free expression. For

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example, the Student Life webpage on the Cal Poly Pomona website provides links
to the Interim Freedom of Expression Policy (dated 2002) and the 2008 Presidential
Order policies, but not the 2014 Presidential Order.

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AND DECLARATORY RELIEF AND DAMAGES

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The inconsistent policies allow administrators to pick and choose

provisions that they are going to enforce, allowing them unlimited discretion to

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promote or silence speech based on its content or the identity of the speaker.

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1.

Free Speech Zone

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29.

Pursuant to the 2008 Presidential Order and the 2014 Presidential

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Order, to engage in outreach on campus without interference, Plaintiff and other Cal
Poly Pomona students must register to use Cal Poly Pomona’s “free speech zone” in
advance and have their materials approved by the Office of Student Life.

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30.

A person seeking to engage in expressive activities may only stand in

University Park “in the northeast grassy area of the entrance to the Bronco Student
Center.”

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31.

Before entering the free speech zone, students must check in with the

Office of Student Life, allow administrators to make a copy of their student
identification, and wear a badge with their name and affiliation while in the “free

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speech zone” as a permit to show that the university has authorized them to speak.
See Ex. F.
32.

Cal Poly Pomona’s “free speech zone” is a tiny area between the

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library and the Bronco student center, comprising less than 0.01% of the campus.
See Ex. G.
33.

Cal Poly Pomona has many open areas and sidewalks beyond the “free

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speech zone” where student expressive activity, including distribution of literature,
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AND DECLARATORY RELIEF AND DAMAGES

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would not interfere with or disturb access to College buildings or sidewalks, impede
vehicular or pedestrian traffic, or in any way substantially disrupt the operations of

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campus or the University’s educational functions.
34.

Plaintiff wishes to engage in expressive activities, including handing

out flyers on campus without being limited to Cal Poly Pomona “free speech zone.”

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35.

Tomas has not engaged such activities outside of the free speech area

since being told by Defendant Foisy on February 4, 2015 that he needed a permit to
leaflet and could only do so in the “free speech zone,” for fear that he will be

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disciplined.
2.

Prior Restraint

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The 2008 Presidential Order and 2014 Presidential Order impose

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further limitations on expressive activities by imposing several prior restraints on
anyone wishing to use University facilities, including the grounds, for
“solicitation.”

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37.

Plaintiff and similarly situated Cal Poly Pomona students must obtain

prior written authorization from Cal Poly Pomona officials in the Office of Student
Life before engaging in “solicitation” on campus. Once students are permitted to

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engage in “solicitation,” they are limited to expressing themselves within the free
speech zone, and they must display their authorization to speak at all times.
38.

The 2008 Presidential Order arbitrarily limits time for solicitation and

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distribution of handbills to five days a quarter for each student and only between the
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PLAINTIFF’S COMPLAINT FOR INJUNCTIVE
AND DECLARATORY RELIEF AND DAMAGES

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hours of 8:00 a.m. to 5:00 p.m. on weekdays – eliminating the possibility of free
speech on weekends.

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Speakers are also prohibited from making noise “louder than normal

conversation,” thus restricting their ability to gain the attention of passers-by to
share their views.

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40.

The 2014 Presidential Order extends the allowable time for solicitation

and distribution of handbills to 10:00 p.m. on weekdays, although weekend exercise
of free speech is still unauthorized.

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41.

Pursuant to the 2008 Presidential Order, all interaction “shall be carried

out without deliberate provocation, harassment or disturbance of persons in the area
(including prolonged or repeated contact with persons who have declined the

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handbills and circulars).”
42.

The terms “deliberate provocation,” “harassment” or “disturbance of

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persons” in the 2008 Presidential Order are not defined.
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43.

The 2008 Presidential Order’s undefined terms allow university

administrators to limit speech they do not like and promote speech they favor.

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44.

Moreover, any student or student group wishing to hold an event

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outside must submit a request to the Office of Student Life at least ten days in

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advance, by submitting an online form describing the activity.

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45.

The Office of Student Life website states that “Groups using outdoor

spaces that have not been confirmed through our office will be penalized.”
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AND DECLARATORY RELIEF AND DAMAGES

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46.

Together, these policies have a chilling effect on Plaintiff’s rights and

those of all other students to engage freely and openly in expressive activities,

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including distribution of literature about animal cruelty and other issues of public

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concern.

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VI. CAUSES OF ACTION

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COUNT I
As-Applied Violation of Plaintiff’s Rights to Free Speech Under
The First and Fourteenth Amendments (42 U.S.C. § 1983) – Free Speech Zone
(Defendant Foisy)
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Plaintiff repeats and realleges each of the foregoing allegations in this

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Complaint.
48.

The First and Fourteenth Amendments extend to campuses of state

colleges and universities. Healy v. James, 408 U.S. at 180.

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49.

Defendant Foisy enforced the 2008 Presidential Order and 2014

Presidential Order to prevent Plaintiff from advocating for animal rights and
distributing literature outside the school’s “Free Speech Zone.”

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50.

Defendant Foisy violated clearly established constitutional rights of

which any reasonable college official should have known, rendering her liable to
Plaintiff under 42 U.S.C. § 1983.

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51.

The denial of constitutional rights is irreparable injury per se, and

Plaintiff is entitled to declaratory and injunctive relief.

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PLAINTIFF’S COMPLAINT FOR INJUNCTIVE
AND DECLARATORY RELIEF AND DAMAGES

Additionally Plaintiff

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experienced emotional injury as a consequence of being denied his First
Amendment rights.

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52.

Plaintiff is entitled to a declaration that Defendants violated his First

Amendment rights. Additionally, Plaintiff is entitled to damages in an amount to be
determined by the evidence of this Court, and the reasonable costs of this lawsuit,

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including reasonable attorneys’ fees.

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COUNT II
Facial Challenge to Violation of Right to Free Speech Under the Plaintiff’s
First and Fourteenth Amendment Rights (42 U.S.C. § 1983) –
Free Speech Zone Policy
(Defendants Coley, Howlett, and Gilford-Beard)

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53.

Plaintiff repeats and realleges each of the foregoing allegations in this

Complaint.
54.

Through policy and practice Defendants have promulgated and

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enforced a Free Speech Zone policy that prohibits free expression on all but a tiny

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fraction of the Cal Poly Pomona campus, despite the fact that the University has

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many open areas and sidewalks that are suitable for expressive activities.

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55.

Restricting all First Amendment activity to a designated “Free Speech

Zone” impermissibly restricts student expression, does not serve a significant
government interest, and is unconstitutionally overbroad.

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56.

Defendant Coley is responsible for Cal Poly Pomona’s administration

and policy-making and has ultimate authority to approve the Free Speech Zone

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Policy challenged herein.
57.

Defendants Howlett and Gilford-Beard oversee implementation and

enforcement of the Free Speech Zone Policy challenged herein. In their official

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capacities, these Defendants informed the Plaintiff of the restrictions imposed by

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the Free Speech Zone Policy.

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58.

As a legal consequence of the Defendants’ violation of Plaintiff’s and

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other similarly situated students’ First and Fourteenth Amendment rights, as alleged

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above, all of which is irreparable injury per se, Plaintiff is entitled to declaratory

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and injunctive relief, damages, and the reasonable costs of this lawsuit, including

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reasonable attorneys’ fees.
COUNT III
Facial Challenge to 2008 Presidential Order and 2014 Presidential Order
Violation of Right to Free Speech Under
the First and Fourteenth Amendments (42 U.S.C. § 1983) – Prior Restraint
(Defendants Coley, Howlett, and Gilford-Beard)
59.

Plaintiff repeats and realleges each of the foregoing allegations in this

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Complaint.
60.

Students have a First Amendment right to engage in expressive

activities and to distribute written materials in the public areas of a state college

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without obtaining advance permission from government officials.

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PLAINTIFF’S COMPLAINT FOR INJUNCTIVE
AND DECLARATORY RELIEF AND DAMAGES

Widmar v.

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Vincent, 454 U.S. 263, 267 n.5 (1981); Papish v. Board of Curators of Univ. of Mo.,
410 U.S. 667 (1973).

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61.

Cal Poly Pomona policies that require all students to obtain permission

before engaging in expressive activities, including distributing handbills, are an
unconstitutional prior restraint. Cal Poly Pomona policies that require all student

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groups to request permission ten days in advance to engage in expressive activity

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outdoors, are an unconstitutional prior restraint. Defendants’ 2008 President Order

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and 2014 Presidential Order unconstitutionally subject the exercise of First

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Amendment freedoms to the prior restraint of a license, without narrow, objective,

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and definite standards to guide the licensing authority. Shuttlesworth v. City of

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Birmingham, 394 U.S. 147, 150-51 (1969).

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62.

Cal Poly Pomona’s policies unconstitutionally prohibit students from

engaging in spontaneous expression due to the requirements to seek permission

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before speaking, obtain approval of handbills and leaflets, wear a permit at all
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times, and the limitations on speech to business hours.
63.

A permitting requirement is a prior restraint on speech and therefore

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bears a heavy presumption against its constitutionality. Berger v. City of Seattle,
569 F.3d 1029, 1037 (9th Cir. 2009).
64.

Advance notice and permitting requirements are presumptively invalid

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because of the significant burden they place on free speech. The Supreme Court
has labeled prior restraint on speech as “the essence of censorship.”
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AND DECLARATORY RELIEF AND DAMAGES

Near v.

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Minnesota, 283 U.S. 697, 713 (1931). Such restrictions are “the most serious and
the least tolerable on First Amendment rights.” Nebraska Press Ass’n v. Stuart,

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427 U.S. 539, 559 (1976).
65.

Defendant Coley is responsible for Cal Poly Pomona’s administration

and policy-making and has ultimate authority to approve the policies challenged

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herein.
66.

Defendants Howlett and Gilford-Beard participated in creating the

policies challenged herein and oversee implementation and enforcement of them.

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In their official capacities, these Defendants informed the Plaintiff of the restrictions

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imposed by the permit requirements.

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67.

As a legal consequence of the Defendants’ violation of Plaintiff’s and

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other similarly situated students’ First and Fourteenth Amendment rights, as alleged

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above, all of which is irreparable injury per se, Plaintiff is entitled to declaratory

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and injunctive relief, damages, and the reasonable costs of this lawsuit, including
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reasonable attorneys’ fees.
COUNT IV
Declaratory Judgment and Injunction (28 U.S.C. § 2201, et seq.)
68.

Plaintiff repeats and realleges each of the foregoing allegations in this

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Complaint.
69.

An actual controversy has arisen and now exists between Plaintiff and

Defendants concerning Plaintiff’s rights under the United States Constitution. A

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AND DECLARATORY RELIEF AND DAMAGES

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judicial declaration is necessary and appropriate at this time as to Counts I through
IV above.

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70.

Plaintiff desires a judicial determination of his rights against

Defendants as they pertain to Plaintiff’s right to speak without being subjected to
content-based requirements, a Free Speech Zone policy, and other policies that

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impose prior restraints on speech, give school officials unlimited discretion whether

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to allow expression and under what conditions, and that are vague, overbroad, and

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that are not narrowly tailored to serve a substantial governmental interest.

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71.

To prevent further violation of Plaintiff’s constitutional rights by

Defendants, it is appropriate and proper that a declaratory judgment issue, pursuant
to 28 U.S.C. § 2201 and Fed. R. Civ. P. 57, declaring the Cal Poly Pomona’s

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policies unconstitutional.
72.

Pursuant to 28 U.S.C. § 2202 and Fed. R. Civ. P. 65, this Court issue a

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permanent injunction prohibiting the Defendants from enforcing their restrictions
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on Plaintiff’s expressive activities to the extent they are unconstitutional, to prevent

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the ongoing violation of Plaintiff’s constitutional rights.

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73.

Plaintiff and his fellow students are suffering irreparable harm from

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continued enforcement of Cal Poly Pomona’s unconstitutional policies, monetary

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damages are inadequate to remedy his harm, and the balance of equities and public

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interest both favor a grant of injunctive relief.

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AND DECLARATORY RELIEF AND DAMAGES

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VII. PRAYER FOR RELIEF

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WHEREFORE, the Plaintiff respectfully requests that the Court enter

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judgment against Defendants and provide Plaintiff the following relief:
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A.

A declaratory judgment stating that Defendants’ speech codes as

specified in this Complaint facially and as-applied to Plaintiff are unconstitutional

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and that they violate the Plaintiff’s rights as guaranteed under the First and
Fourteenth Amendments to the United States Constitution;
B.

A permanent injunction restraining enforcement of Defendants’

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unconstitutional speech codes and enforcement practices;
C.

A declaratory judgment that Defendants’ censorship of Plaintiff’s

expressive activities violated his First and Fourteenth Amendment rights’

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D.

Monetary damages in an amount to be determined by the Court to

compensate Plaintiff for the impact of a deprivation of fundamental rights;
E.

Plaintiff’s reasonable costs and expenses of this action, including

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attorneys’ fees, in accordance with 42 U.S.C. § 1988, and other applicable law; and
F.

All other further relief to which Plaintiff may be entitled.

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VIII. DEMAND FOR JURY TRIAL

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Plaintiff demands a trial by jury of all issues properly triable by jury in this
action.
Dated: March 31, 2015

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PLAINTIFF’S COMPLAINT FOR INJUNCTIVE
AND DECLARATORY RELIEF AND DAMAGES

 Case 2:15-cv-02355 Document 1 Filed 03/31/15 Page 18 of 18 Page ID #:18

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Respectfully submitted,

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/s/ Rochelle L. Wilcox
ROCHELLE L. WILCOX (State Bar No. No. 197790)
rochellewilcox@dwt.com
DAVIS WRIGHT TREMAINE LLP
865 South Figueroa Street, Suite 2400
Los Angeles, California 90017
Telephone: (213) 633-6800
ROBERT CORN-REVERE (pro hac vice to be filed)
bobcornrevere@dwt.com
RONALD G. LONDON (pro hac vice to be filed)
ronnielondon@dwt.com
LISA B. ZYCHERMAN (pro hac vice to be filed)
lisazycherman@dwt.com
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Avenue, NW, Ste. 800
Washington, DC 20006
Telephone: (202) 973-4200

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Attorneys for Plaintiff Nicolas Tomas

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PLAINTIFF’S COMPLAINT FOR INJUNCTIVE
AND DECLARATORY RELIEF AND DAMAGES