BENNETT v. PROSPER ISD POLICE DEPARTMENT (2022)

ORDER

Plaintiff Michael Bennett's son attends school in the Prosper Independent School District (“Prosper ISD”). This case arises from Bennett's use of profanity during two open-to-the-public Prosper ISD School Board (“School Board”) meetings. After his use of profanity at the second School Board meeting, officers with the Prosper ISD Police Department issued Bennett a criminal trespass warning, which bars Bennett from attending School Board meetings for three months. Under the terms of the criminal trespass warning, if Bennett attempts to attend a School Board meeting during this timeframe, he will be arrested.

In response to the criminal trespass warning, Bennett filed suit in state court, which was later removed to this Court. In his live pleading,¹ Bennett asserts a state law claim that the Prosper ISD officers acted ultra vires in issuing the criminal trespass warning,² as well as a claim under 42 U.S.C. § 1983 that the officers' action violates his free speech rights under the First Amendment to the United States Constitution.

Bennett has moved this Court for a temporary restraining order, a preliminary injunction, and a permanent injunction against Defendants Prosper ISD Police Department, Chief of Police Chad Vessels, and Officer Seth Yates (collectively, “Defendants”), barring enforcement of the criminal trespass warning. The Court previously denied Bennett's TRO motion and ordered briefing on his request for a preliminary injunction. Now before the Court is Bennett's request for a preliminary injunction. Defendants have filed a brief in opposition and a supplemental brief, and the Court held a hearing on the preliminary injunction request. Having considered the briefing, the record, and the applicable law, the Court concludes that the request for a preliminary injunction should be granted in part.

I. Background

A. The Texas Education Code Authorizes School Resource Officers to Issue Trespass Citations.

Prosper ISD Police Department's Chief of Police Vessels and Officer Yates are authorized, among other things, to issue trespass citations. Under Section 37.107 of the Texas Education Code, a person “who trespasses on the grounds of any [Texas] school district” commits an offense. Tex. Educ. Code § 37.107. Section 37.105(a) of the Code provides the circumstances in which such a trespass occurs on school grounds, permitting school resource officers to eject or refuse entry to that person. Id. § 37.105(a). Under Section 37.105(a), that person must have (1) “refuse[d] to leave peaceably on request” and (2) “pose[ ] a substantial risk of harm to any person” or “behave[ ] in a manner that is inappropriate for a school setting.” Id.

If inappropriate behavior on school grounds is the basis for removal or refusal of entry, two additional statutory requirements must be met—namely, (i) a school official must first issue “a verbal warning to the person that the person's behavior is inappropriate and may result in the person's refusal of entry or ejection” and (ii) the person's behavior persists. Id.

A person who wishes to challenge a criminal trespass warning issued under these sections must first exhaust his administrative remedies by filing a complaint before the Texas Commissioner of Education prior to filing suit in court. See id. §§ 7.057(a), (f)(2).

B. Bennett Receives a Criminal Trespass Warning for Using Profanity at School Board Meetings.

Bennett's lawsuit arises from his participation in two open-to-the-public School Board meetings. The first of those meetings occurred on February 28, 2022. At the start of the public comment portion of the meeting, in which members of the community are permitted to address their grievances with the School Board, a member of the School Board instructed community members to be respectful in their remarks and not disrupt the meeting. (Dkt. #14-1 at 45:26–46:20). Those present were further admonished that they would be forcibly removed from the meeting if they failed to follow this directive. (Dkt. #14-1 at 45:26–46:20).

Bennett addressed the School Board shortly thereafter by airing his grievances regarding his school-age son's ability to access sexually explicit material on school library databases. Bennett's remarks to the School Board, as reflected in the video recording of the meeting, are as follows:

Good evening. So, it uh ․ excuse me ․ at 4:55 I was able to log into my son's school library. So, the same language that was provided to him, through his school library, through his school system, I expect the same courtesy for me to present. Ok? So, the reasonable intelligence has left the building. It's way out of spec. So, when I login usually there's a little button called search, called negative words, negative key words. Let's just use that. It's a phenomenal character. Push button negative key word, it's gonna be in there. Reason I say that is cuz when I log in, he's twelve years old on the school library I see chapter titles such as phone sex, phone sex two, put the ass in Casanova, with the discussion as no, but he did teach me how to eat a butthole, might be a butthole, or a sauteed donkey dick, yeah Earl, I'm going to eat her pussy.

(Dkt. #14-1 at 53:55–55:42). Bennett then turned away from the School Board members to face the audience and stated:

For all you chicken shit men ․ that allow your schools, your daughters, your boys, to allow this to go on, you better get your shit together. Thank you.

(Dkt. #14-1 at 53:55–55:42). After his remarks concluded, Bennett left the podium as the audience applauded. The School Board then proceeded to call up the next public comment speaker. The School Board took no action against Bennett following those remarks.

Nearly seven months later, at the School Board's September 13, 2022, public meeting, Bennett again addressed the School Board during the public comment period airing his dissatisfaction with the School Board's handling of allegations of sexual abuse. As reflected in the video of the School Board meeting, Bennett's comments to the School Board that day, as pertinent to the subsequent criminal trespass warning, were as follows:

There's normally a phrase that fits the children. You have shit the bed again․ To sum it up, who else is tired of saying, what the fuck are we doing here?

(Dkt. #14-2 at 5:20:40–5:22-21).

As a result of Bennett's use of profanity at the September 13 School Board meeting,³ on September 15, 2022, Defendants issued Bennett a criminal trespass warning pursuant to Texas Education Code Section 37.107, barring him from attending School Board meetings until December 15, 2022. (Dkt. #1-3 at 8). The criminal trespass warning states that Bennett is barred from entering all Prosper ISD campus buildings and property for ninety days. However, Defendant Chad Vessels clarified in an October 14, 2022, email to Bennett that the criminal trespass warning only restricted Bennett from entering “the Prosper ISD Administration Building [ ] and its parking lots and attached structures through December 15, 2022.” Compare (Dkt. #1-3), with (Dkt. #14-4 at 2). Defendant Vessels further clarified that the criminal trespass warning did not bar Bennett from entering his child's “campus, school events, extracurricular activities, and the like, under the same terms as any other parent or visitor.”⁴ (Dkt. #14-4 at 2).

After receiving the criminal trespass warning, Bennett filed suit in state court, alleging state law claims that Defendants' issuance of the citation was an “ultra vires” act in violation of the applicable provisions of the Texas Education Code, and that Defendants' actions also amounted to a conspiracy. (Dkt. #1); (Dkt. #8-1). After obtaining a temporary restraining order from the state court, (Dkt. #1-3 at 13), Bennett amended his petition, removing his conspiracy claim and adding a claim under 42 U.S.C. § 1983 that the criminal trespass warning deprived him of his First Amendment free speech rights under the United States Constitution. (Dkt. #1). Defendants then removed the case to this Court, invoking the Court's federal question jurisdiction under 28 U.S.C. §§ 1331 and 1441(b). (Dkt. #1). Bennett filed his first amended complaint on October 4, 2022, asserting causes of action under 42 U.S.C. § 1983 and state law ultra vires. (Dkt. #23).

Bennett's brief in support of his request for a preliminary injunction alleges that the criminal trespass warning violates Bennett's First Amendment free speech rights. (Dkt. #24). He seeks a preliminary injunction barring Defendants from enforcing the criminal trespass warning. (Dkt. #24).

II. Legal Standard

A preliminary injunction is an “extraordinary remedy” which should only be granted where a plaintiff carries his “heavy burden” that injunctive relief is warranted. Planned Parenthood of Greater Tex. Fam. Plan. & Preventative Health Servs., Inc. v. Kauffman, 981 F.3d 347, 353 (5th Cir. 2020) (en banc) (quotations omitted); Leachman v. Harris Cty., 779 F.App'x 234, 237 (5th Cir. 2019) (quotations omitted). To obtain a preliminary injunction, a plaintiff must establish the following four elements:

(1) there is a substantial likelihood that it will prevail on the merits, (2) there is a substantial threat that the party will suffer irreparable injury if the preliminary injunction is denied, (3) the threatened injury to the party seeking the injunction outweighs the threatened injury to the party to be enjoined, and (4) granting the preliminary injunction will not disserve the public interest.

Walgreen Co. v. Hood, 275 F.3d 475, 477 (5th Cir. 2001).

To establish a substantial likelihood of success on the merits, a plaintiff is not required to prove that its success on the merits is guaranteed. Janvey v. Alguire, 647 F.3d 585, 595–96 (5th Cir. 2011) (citations omitted). In this sense, establishing a substantial likelihood of success on the merits does not require the plaintiff to produce the kind of evidence needed to prevail at summary judgment. See id. However, a plaintiff must nevertheless establish a substantial likelihood that it will ultimately prevail on its claims. Id. at 599. Simply establishing that there is more likelihood than there is no chance of success is insufficient. Humana Ins. Co. v. Tenet Health Sys., No. 3:16-CV-2919-B, 2016 WL 6893629, at *13 (N.D. Tex. Nov. 21, 2016) (quoting Fla. Med. Ass'n, Inc. v. U. S. Dep't of Health, Ed. & Welfare, 601 F.2d 199, 203 n.3 (5th Cir. 1979)).

III. Discussion

Bennett's request for a preliminary injunction will be granted in part, only as to Defendants Vessels and Yates, because as to those Defendants he has established the prerequisites for obtaining injunctive relief: a likelihood of success on the merits on his Section 1983 claim; a substantial threat of irreparable injury if the preliminary injunction is denied; that the threatened injury to Bennett outweighs the threatened injury to Defendants Vessels and Yates; and that granting the preliminary injunction will not disserve the public interest.

At the outset, the Court affirms its findings in its previous order denying Bennett's TRO motion that (i) Defendant Prosper ISD Police Department is not a jural entity upon which Bennett can obtain relief, (ii) Bennett was required to exhaust his administrative remedies for his state law claim,⁵ and (iii) Bennett's Section 1983 claim also required exhaustion to the extent it is “ancillary” to his state law claim. See (Dkt. #21). Because Prosper ISD Police Department is not a jural entity, Bennett cannot succeed on his claims against it and the preliminary injunction request against this Defendant must be denied. Accordingly, the Court's consideration of whether injunctive relief is appropriate only applies to Defendants Vessels and Yates.

At the preliminary injunction stage, given Bennett's recently amended complaint and the submission of his preliminary injunction brief construing the nature of his claims, the Court concludes that in his live pleadings Bennett alleges an independent, freestanding Section 1983 claim that is not “ancillary” to his state law claim under the Texas Education Code. Therefore, the Court holds that his Section 1983 claim, unlike his state law claim, is not subject to the exhaustion of administrative remedies under the Code. Accordingly, the Court must determine whether Bennett is entitled to a preliminary injunction on his Section 1983 claim.

A. Bennett's Section 1983 Claim Is Not Ancillary to His Cause of Action Under the Texas Education Code.

The Texas Supreme Court has defined “ancillary” constitutional claims as those in which the “true nature of the claim, although asserted as a constitutional violation, necessarily results from a violation of school laws.” Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 553 (Tex. 2016) (holding that the “nature of the claims, rather than the nomenclature” determines whether the constitutional claims are “ancillary” to the state law claims requiring exhaustion). Just as the Court closely examined Bennett's motion for a temporary restraining order in determining how Bennett construed his Section 1983 claim as pleaded in his amended petition, so too this Court must analyze Bennett's preliminary injunction brief to determine how Bennett construes his Section 1983 claim as pleaded in his first amended complaint.

Although Bennett's first amended complaint does not substantively alter his Section 1983 claim as pleaded in his prior complaint, Bennett's preliminary injunction brief in no uncertain terms construes his first amended complaint as alleging a freestanding Section 1983 claim. For example, in his brief, Bennett notes that he is “not challenging the validity of the criminal trespass warning that was issued by the school district under Chapter 37 of the Education Code, [but] rather ․ is alleging that the issuance of the criminal trespass warning violated his 1st [A]mendment right to free speech.” (Dkt. #24 at ¶ 19). He further asserts that his “grievance is not with the school laws and their application of chapter 37 of the Education Code, but with the Officers' actions which violated his constitutional rights.” (Dkt. #24 at ¶ 23). This explicit language leads the Court to conclude that, as argued in his preliminary injunction brief, Bennett has sufficiently pleaded a freestanding First Amendment cause of action in his first amended complaint.⁶

Defendants' argument to the contrary is unavailing. Defendants contend that in pleading his Section 1983 claim in his first amended complaint, Bennett has not remedied the “ancillary” claim defect that this Court noted in its decision denying the motion for a temporary restraining order. (Dkt. #28 at 2). Specifically, Defendants reference language within the first amended complaint's Section 1983 cause of action alleging that “Defendants without first complying with Texas Law, issued a Trespass Warning.” (Dkt. #23 ¶ 32). Defendants argue that this language—invoking Texas law—demonstrates that Bennett's First Amendment claim is derivative of his claim under the Texas Education Code.

However, the Court must examine the first amended complaint as a whole in construing its causes of action. See, e.g., Cunningham v. Offshore Specialty Fabrications, Inc., 543 F.Supp.2d 614, 628 (E.D. Tex. 2008) ((“The Court must consider the Complaint as a whole and not limit itself to isolated portions of the Complaint, and the Court must endeavor to give meaning to every word of the Complaint.” (quotations omitted)), aff'd sub nom. Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759 (5th Cir. 2011). The paragraph immediately preceding the one that Defendants reference clearly alleges a freestanding First Amendment claim disconnected from any state law cause of action. (Dkt. #23 ¶ 31) (“Defendants acted willfully, deliberately, maliciously, and with reckless disregard for plaintiff's right to free speech protected under the 1st Amendment of the United States Constitution and the Texas Constitution.”). Thus, in analyzing the entirety of Bennett's first amended complaint and how he construes that complaint in his preliminary injunction brief, this Court holds that Bennett has adequately pleaded an independent First Amendment claim. Accordingly, Bennett's Section 1983 claim is not subject to an administrative remedy exhaustion requirement, and the Court can consider the claim on its merits.

B. Bennett Has Established a Substantial Likelihood of Prevailing on the Merits of His Section 1983 Claim.

Turning to the merits of his Section 1983 claim, Bennett has established a substantial likelihood of success. The First Amendment provides that “Congress shall make no law ․ abridging the freedom of speech.” U.S. Const. amend. I. Recognizing the centrality of the First Amendment's free speech guarantees to our democratic republic, the Supreme Court has consistently found that prior restraints on free speech are presumptively invalid. See, e.g., CBS, Inc. v. Davis, 510 U.S. 1315, 1317, 114 S.Ct. 912, 127 L.Ed.2d 358 (1994) (Blackmun, J., in chambers) (“For many years it has been clearly established that any prior restraint on expression comes to this Court with a heavy presumption against its constitutional validity.” (quotations omitted)); Neb. Press Ass'n v. Stuart, 427 U.S. 539, 556, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (noting the “special protections” courts must afford against orders that impose prior restraints on free speech).

The Fifth Circuit has routinely applied this clear principle to hold such prior restraints unconstitutional, including in the school setting. See, e.g., Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273, 275, 279–84 (5th Cir. 2003) (holding that a prohibition on parents' distribution of materials critical of a proposed math curriculum at a school's public information meetings was an unconstitutional prior restraint); Davis v. E. Baton Rouge Par. Sch. Bd., 78 F.3d 920, 928 (5th Cir. 1996) (holding that a district court's prohibition on a school board's members, attorneys, and employees from making written or oral comments about drafts of a desegregation plan for the East Baton Rouge Parish School System was an unconstitutional prior restraint). As an exception to the rule, a prior restraint may be upheld where it is supported by procedural safeguards and is narrowly tailored. Chiu, 339 F.3d at 283. Generally, however, a prior restraint will be upheld only if the government demonstrates that the prior restraint addresses a “serious or imminent threat” or a “clear and present danger” and no reasonable alternatives to the restraint are available. Davis, 78 F.3d at 928 (quotations omitted); In re Goode, 821 F.3d 553, 560 (5th Cir. 2016).

As initially issued against Bennett, the criminal trespass warning—which is stunningly broad—is clearly a prior restraint on protected speech because it not only bars Bennett from speaking at open-to-the-public School Board meetings, but also prohibits him from entering (and therefore speaking at) all Prosper ISD campus buildings and property. And even assuming that enforcement of the criminal trespass warning has been limited by Chief Vessels such that Bennett is only barred from attending School Board meetings for ninety days, this restriction remains a prior restraint on Bennett's free speech as it entirely “prohibits the utterance” of speech by Bennett at any School Board meetings through December 15, 2022. Davis, 78 F.3d at 928.⁷

Having determined that the criminal trespass warning as issued or as limited by Defendant Vessels places a prior restraint on Bennett's free speech, the Court must consider whether the restriction is narrowly tailored to achieve a compelling government interest. It is not. Defendants claim that the School Board has a compelling governmental interest in maintaining decorum at its meetings. Specifically, Defendants note that school-age children can attend the meetings, and thus there is a compelling governmental interest in ensuring coarse or vulgar language is not used. But the restriction at issue is not one against profanity, it is a criminal trespass warning that prohibits Bennett from engaging in any speech at a School Board meeting for three months. Indeed, during this timeframe Bennett cannot even attend a School Board meeting. Defendants have not even attempted to articulate how Bennett's mere attendance at a School Board meeting presents a “serious or imminent threat” or “clear and present danger,” which are the rationales that have been held as sufficient justifications for completely abrogating a person's fundamental right to free speech. Davis, 78 F.3d at 928 (quotations omitted); In re Goode, 821 F.3d at 560.

Furthermore, assuming arguendo that Defendants' justification constitutes a compelling governmental interest—which it does not—neither version of the criminal trespass warning is narrowly tailored to achieve that interest. The warning as issued is breathtaking in scope, prohibiting Bennett from entering all Prosper ISD grounds. Of course, an order that restricts Bennett from watching his son's sports games or attending parent-teacher conferences, or participating in any other activity on school grounds, is not narrowly tailored to prevent Bennett from using coarse or vulgar language at School Board meetings.

And even under Defendants' limiting stipulation, the warning is still not the least restrictive means available. Rather than barring Bennett from being present—let alone speaking—at School Board meetings for ninety days, Defendants could have imposed any number of less restrictive conditions on Bennett's participation in School Board meetings. For example, Bennett could have been asked to check in with school staff or resource officers when he entered a meeting, so that he could be personally warned to avoid inappropriate language, and Bennett could have his microphone turned off and be immediately removed if he violated the warning. Alternatively, Bennett could have been allowed to attend meetings but asked to pre-record any statement he wanted to make so that school officials could review it and confirm it did not violate the decorum requirements. The point is that Defendants had any number of options available to address Bennett's failure to meet the School Board's policy on decorum without completely extinguishing Bennett's free speech rights for a period of ninety days.

In sum, Defendants failed to employ the least restrictive means to limit Bennett's use of coarse and vulgar language, instead issuing the criminal trespass warning, which completely bars Bennett's speech and is not narrowly tailored to effectuate Defendants' interest in preventing the use of profanity at School Board meetings. Because Defendants imposed an unconstitutional restraint on Bennett's First Amendment free speech rights and did so without narrowly tailoring such restraint to serve a compelling governmental interest, Bennett has established that he is substantially likely to succeed on the merits of his Section 1983 claim.⁸

C. Bennett Will Suffer Irreparable Harm Without an Injunction.

Bennett will suffer irreparable harm if an injunction is not granted. The Supreme Court has recognized that the “loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.” Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)); Denton v. City of El Paso, 861 F.App'x 836, 841 (5th Cir. 2021) (same); cf. CBS, Inc., 510 U.S. at 1317, 114 S.Ct. 912 (“Where ․ a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.” (quotations omitted)). Bennett's First Amendment free speech rights are violated each day that the criminal trespass warning remains in effect. Only by removing that curtailment of his speech will Bennett's constitutional rights be restored.

D. The Injury to Bennett Outweighs Any Injury to Defendants Vessels and Yates.

The Court must also assess whether the threatened injury to Bennett outweighs any injury to Defendants Vessels and Yates if a preliminary injunction is granted. Given the Court's conclusion that the harm imposed on Bennett is irreparable, Defendants Vessels and Yates “would need to present powerful evidence of harm to [their] interests” to prevent Bennett from meeting this requirement. Opulent Life Church, 697 F.3d at 297. They have not done so. In fact, Defendants Vessels and Yates have presented no evidence of the harm they will incur if an injunction is granted. And none is apparent to the Court.

If the criminal trespass warning remains in effect, Bennett will be deprived of his constitutional right to free speech. He has established that his threatened injury outweighs any potential injury to Defendants Vessels and Yates if an injunction is granted.

E. Granting the Preliminary Injunction Will Serve the Public Interest.

Turning to the last factor, whether an injunction serves the public interest. Bennett easily satisfied this factor as, “[i]njunctions protecting First Amendment freedoms are always in the public interest.” Opulent Life Church, 697 F.3d at 298 (quotation omitted). Accordingly, Bennett also meets this requirement for a preliminary injunction.

IV. Conclusion

Plaintiff Michael Bennett has established that injunctive relief is warranted as to Defendants Vessels and Yates. Therefore, his request for a preliminary injunction against these Defendants must be GRANTED. Because Bennett has failed to establish that such relief is warranted as to Defendant Prosper ISD Police Department, his request for a preliminary injunction against Prosper ISD Police Department is DENIED.

It is therefore ORDERED that Plaintiff Michael Bennett's Brief in Support of His Temporary Injunction and Motion to Reconsider, (Dkt. #24), is GRANTED in part.

Under Federal Rule of Civil Procedure 65(c), a court granting a preliminary injunction has discretion to require a bond “in an amount that the court considers proper.” Because Defendants Vessels and Yates are unlikely to accrue any damages if they are wrongly enjoined, nor have they argued for an appropriate bond amount, no security bond will be required. See A.T.N. Indus., Inc. v. Gross, 632 F.App'x 185, 192 (5th Cir. 2015) (per curiam) (unpublished) (quoting Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996)) (“[U]nder Rule 65(c), ‘a court may elect to require no security at all.’ ”).

It is further ORDERED that Prosper ISD Police Department Chief of Police Chad Vessels, and Officer Seth Yates, are hereby ENJOINED from enforcing the criminal trespass warning, (Dkt. #1-3 at 8), as stipulated by Defendants or in its original form, against Michael Bennett pending the resolution of this case. No other person in active concert with Chief of Police Vessels and Officer Yates may enforce the criminal trespass warning, as stipulated by Defendants or in its original form, against Michael Bennett pending the resolution of this case.

So ORDERED and SIGNED this 12th day of November, 2022.

FOOTNOTES

1.   In his first amended complaint Bennett added Prosper Independent School District and Holly Ferguson as defendants. (Dkt. #23). These Defendants have not yet been served and likewise no motion for preliminary relief is pending against them.

2.   Although Bennett mistakenly labels his state law claim as an ultra vires cause of action, the Court has already held that he is in fact alleging a violation of the Texas Education Code. See (Dkt. #21 at 9–11).

3.   Defendants argue that the criminal trespass warning was issued based on Bennett's statements at both the February 28 and September 13 School Board meetings, (Dkt. #14 ¶ 2.4), but the warning itself only references the September 13 meeting. See (Dkt. #1-3 at 8).

4.   At the preliminary injunction hearing, Defendants stipulated that the scope of the criminal trespass warning is limited by Defendant Vessels's email to Bennett.

5.   In his preliminary injunction brief, Bennett suggests that the Court erred in holding that he was required to exhaust his administrative remedies for his state law claim because of an exception in Subsection (e) of Texas Education Code Section 7.057. (Dkt. #24 at 8–9). But that subsection only provides an exception to the exhaustion requirement for cases brought under “Subchapter G, Chapter 21” of the Texas Education Code or for “student disciplinary action[s] under Chapter 37,” neither of which are applicable here. Tex. Educ. Code § 7.057(e). First, the Texas Education Code sections Bennett raises are in Subchapter D, Chapter 37, not in Subchapter G, Chapter 21. Second, this case does not involve a student disciplinary action. Thus, the Court correctly held that Bennett was unlikely to succeed on the merits of his state law claim as he was required to exhaust his administrative remedies before filing suit.

6.   In denying Bennett's motion for a temporary restraining order, this Court noted that Bennett's amended petition could be read as raising an independent First Amendment claim. However, the Court ultimately found the claim to be “ancillary” because Bennett's motion for a temporary restraining order construed his own amended petition as alleging an “ancillary” Section 1983 claim. (Dkt. #21 at 14 n.4–5). Bennett has remedied that pitfall in his preliminary injunction brief by clearly construing his first amended complaint as alleging a freestanding First Amendment claim.

7.   There is no question that Bennett's claim implicates protected speech. Although Defendants are concerned about Bennett's potential use of profanity at a School Board meeting, the citation issued to Bennett completely bars him from even attending such meetings, and therefore engaging in any speech. So, the free speech at issue in this case broadly encompasses any expression at School Board meetings, which concern the education of children and related matters. Unquestionably, such expression involves a matter of public concern and is protected under the First Amendment. See, e.g., Chiu, 339 F.3d at 283.

8.   Defendants' qualified immunity argument also fails as “qualified immunity protect[s] only individuals from claims for damages; they do not bar official-capacity claims or claims for injunctive relief.” Singleton v. Cannizzaro, 956 F.3d 773, 778 n.3 (5th Cir. 2020) (emphasis in original); Chrissy F. by Medley v. Miss. Dep't of Pub. Welfare, 925 F.2d 844, 849 (5th Cir. 1991) (“Neither absolute nor qualified personal immunity extends to suits for injunctive or declaratory relief under § 1983.”); see also (Dkt. #25 at 6–10). Because Bennett's request for a preliminary injunction seeks injunctive, rather than monetary relief, Defendants' qualified immunity argument is unavailing.

SEAN D. JORDAN, UNITED STATES DISTRICT JUDGE