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BERNARD v. U. TP. H. SCH. DIST. NO. 30

September 28, 1992

JASON BERNARD, D/B/A ARCHITECTURAL RENDERINGS, PLAINTIFF,
v.
UNITED TOWNSHIP HIGH SCHOOL DISTRICT NO. 30, DEFENDANT.



The opinion of the court was delivered by: Mihm, Chief Judge.

ORDER

Before the court is the Defendant's Motion to Dismiss. For the reasons set forth below, this motion is GRANTED.

BACKGROUND

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 support.

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 occupation.

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 below.

DISCUSSION

Motion To Dismiss

In ruling on a Rule 12(b)(6) motion to dismiss, a ...


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