The opinion of the court was delivered by: Mihm, Chief Judge.
Before the court is the Defendant's Motion to Dismiss. For
the reasons set forth below, this motion is GRANTED.
The Plaintiff, Jason Bernard, filed a two count complaint for
money damages on December 12, 1991. Count I was brought
pursuant to 42 U.S.C. § 1983 alleging that the Defendant,
United Township High School District, violated the Plaintiff's
First and Fourteenth Amendment rights to draw and market prints
of a public building. Count II presents a pendant state law
tort claim for the intentional interference with prospective
business advantage. The Plaintiff prays for damages in the
amount of $25,000.00, attorney fees and prejudgment interest.
The facts taken from Bernard's complaint are as follows.
Bernard drew a pen and ink rendering of the North Campus of the
United Township High School with the intent to market copies of
the drawing through his business, Architectural Renderings.
Bernard contacted school officials attempting to negotiate an
agreement for the benefit of himself and the School District
and/or the school Booster Club from the marketing of these
prints. The negotiations being unsuccessful, Bernard printed
1500 copies, intending to market them without School District
Count I alleges violations of Bernard's First and Fourteenth
Amendment constitutional rights. Bernard contends his First
Amendment constitutional right of free expression was breached
with regard to artistic renditions of public buildings and the
marketing thereof. Under the Fourteenth Amendment, Bernard
alleges his constitutionally protected liberty or property
interest was breached with regard to his business enterprise or
Bernard professes his business and occupation to be the
drafting and marketing of pen and ink architectural renditions.
Bernard contends that he has an unrestricted right to draw and
market renditions of a public building, and the threats and
harassment by school officials and administrators deprived him
of his constitutional rights. Bernard also contends the conduct
of the School District's agents and employees constituted the
School District's custom and policy, thereby making the School
District the proper party to this action.
On February 13, 1992, the School District filed this Motion
to Dismiss pursuant to Rule 12(b)(6), asserting that
allegations of mere harassment and threats are insufficient to
state a constitutional claim where Bernard's marketing efforts
continued despite the conduct. Moreover, the School District
argues that the act of sending a letter did not imply a threat,
and even if it did, threats are not actionable under § 1983.
Furthermore, the School District contends that Bernard alleges
only that some retailers stopped selling his prints, not that
he was deprived of a right to do business.
As for Count II, the School District contends that Bernard's
state tort claim arises solely from the December 12, 1990,
letter. The School District contends that Bernard failed to
allege sufficient facts to support a claim of intentional
interference with business advantage. The School District
contends the Plaintiff failed to allege that distribution of
the letter by the School District was wrongful or failed to
allege sufficient facts from which to infer its wrongfulness.
On September 18, 1992, the Court heard oral arguments on the
constitutional claims raised in Count I. Following oral
argument, the Court orally granted the School District's Motion
to Dismiss with leave to amend. Bernard chose not to amend his
Complaint. The Court's findings and reasoning are set forth
In ruling on a Rule 12(b)(6) motion to dismiss, a ...