STATUTES

Appellees Board of Trustees of the Columbus Metropolitan Library, Larry D. Black, and Vonzell Johnson (collectively, "the Library") do not believe that oral argument is necessary. Appellant, Robert A. Neinast ("Neinast") however, has requested oral argument and thus, if the Court determines to hold an oral argument, the Library requests the right to participate.

This is an appeal of the final order of the United States District Court for the Southern District of Ohio, wherein the court granted the Library's motion for summary judgment and denied Neinast's cross-motion for summary judgment. The District Court's jurisdiction over this matter stemmed from 42 U.S.C. § 1983, upon which Neinast based his claims and 28 U.S.C. § 1331. This Court has jurisdiction over Neinast's appeal pursuant to 28 U.S.C. § 1291. Neinast filed his appeal on April 25, 2002, within thirty days of the District Court's order, which was filed on March 26, 2002 (R18, Order).

1. Whether the District Court correctly concluded that walking barefoot does not constitute protected speech within the meaning of the First Amendment.

2. Whether the District Court correctly determined that the Library regulation requiring shoes did not violate Neinast's claimed First Amendment right to receive speech.

3. Whether the District Court correctly held that the Library regulation requiring shoes did not violate Neinast's claimed right of personal appearance.

4. Whether the District Court correctly ruled that the Library did not violate Neinast's due process rights.

Neinast filed his pro se Complaint in the Franklin County Court of Common Pleas, alleging that the Library regulation requiring shoes violated (1) his First Amendment right to receive speech, (2) his First Amendment right to freedom of expression, (3) his substantive due process right of appearance, (4) his right to equal protection, and (5) his right to procedural due process. (Complaint). On May 11, 2001, the Library removed the case to the United States District Court for the Southern District of Ohio pursuant to 28 U.S.C. § 1441(b). (R1, Notice of Removal; R2, Certificate of Filing of Notice of Removal). On June 27, 2001, Neinast filed an Amended Complaint. (R8, Amended Complaint).

On August 2, 2001, the Library filed its Motion for Summary Judgment, wherein it argued that no constitutional right to go barefoot existed, and that even if it did, the Library's reason for promulgating the regulation--its interest in protecting the health and safety of Library patrons--more-than-adequately passed constitutional muster. (R11, Defendants' Motion for Summary Judgment). On September 17, 2001, Neinast filed his cross-motion for summary judgment and memorandum contra. (R13, Plaintiff's Motion for Summary Judgment). The parties thereafter filed their respective Reply Briefs on October 17, 2001 (R14, Defendants' Reply in Support of Summary Judgment) and October 31, 2001. (R15, Plaintiff's Reply in Support of Summary Judgment).

On March 26, 2002, after hearing oral argument (R16, Order; R17, Civil Minutes; Transcript) and considering the briefs, the District Court issued its Order granting summary judgment in favor of the Library and overruling Neinast's motion. (R18, Order).

Neinast claims that he goes barefoot whenever practicable. (R8, Amended Complaint, ¶5-6; R18, Order at 1). In a series of incidents beginning on September 12, 1997 and culminating on March 2, 2001, Library personnel requested that Neinast leave the Library's Main Branch for refusing to obey the Library regulation that requires patrons to wear shoes on Library premises. (R8, Amended Complaint, ¶7-9; R18, Order at 2).

Mr. Black, then the Library's Executive Director, approved and promulgated the regulation 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. (R8, Amended Complaint, ¶13; R11, Defendants' Motion for Summary Judgment, Ex. A ¶4; R14, Defendants' Reply in Support of Summary Judgment, App. Tab A, #8; R18, Order at 7). He did so pursuant to the authority granted to him by the Library Board of Trustees' Library Organization Policy, which charges him with the responsibility of "determining internal policies and procedures [for] . . . public relations, relations with the community and governmental agencies, and the handling of all other matters involved with the operation of the library system." (R8, Amended Complaint, ¶13, 20; R11, Defendants' Motion for Summary Judgment, Ex. A, ¶4; R14, Defendants' Reply in Support of Summary Judgment, App. at 93; R18, Order at 2).

Neinast complained about being asked to leave the Library in a letter to Mr. Black and various members of the Board of Trustees. (R8, Amended Complaint, ¶19-20; R14, Defendants' Reply in Support of Summary Judgment, App. at 99-102; R18, Order at 2). In response, the President of the Board informed Neinast that the Board had authorized the regulation through its duly appointed director. (R8, Amended Complaint, ¶20; R11, Defendants' Motion for Summary Judgment, Ex. A, ¶9; R18, Order at 2). When Neinast continued to complain, Mr. Black requested that the Franklin County Prosecutor's Office confirm the legality of the rule requiring shoes. (R8, Amended Complaint, ¶21; R11, Defendants' Motion for Summary Judgment, Ex. A, ¶10; R18, Order at 2). The Prosecutor's office issued an opinion concluding that the regulation was constitutional. (R11, Defendants' Motion for Summary Judgment, Ex. A, Ex. 4; R18, Order at 3).

Neinast claims that he has a constitutional right to go barefoot. The District Court, however, properly concluded that he is wrong. Walking barefoot does not rise to the level of speech. Moreover, the Library regulation requiring shoes does not violate any claimed right to receive speech. The court below also properly held that the regulation does not violate Neinast's asserted right of personal appearance. Finally, contrary to Neinast's claim, the court below correctly found that the process by which the regulation was promulgated implicates only state law. Thus, the District Court's decision should be affirmed in all respects.

I. THE DISTRICT COURT CORRECTLY HELD THAT THE LIBRARY REGULATION REQUIRING SHOES DOES NOT INFRINGE THE FIRST AMENDMENT

A. WALKING BAREFOOT IS NOT SPEECH PROTECTED BY THE FIRST AMENDMENT

At the District Court level, Neinast asserted that walking barefoot constituted speech protected by the First Amendment. (R8, Amended Complaint). Although Neinast does not seem to have appealed the portion of the District Court's decision dismissing this claim, because Neinast is a pro se litigant and in an abundance of caution, the Library will briefly address that claim.¹ 

Simply put, walking barefoot is not speech. It is conduct that is not protected by the First Amendment. As the court below noted, it is axiomatic that "[i]t is possible to find some kernel of expression in almost every activity a person undertakes--for example, walking down the street or meeting one's friends at a shopping mall--but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." ^Q> (R18, Order at 8, citing Dallas v. Stanglin, 490 U.S. 19, 25 (1989)).

To determine whether walking barefoot is entitled to First Amendment protection, a court must consider "the nature of [plaintiff's] activity, combined with the factual context and environment in which it was undertaken." ^Q> Spence v. Washington, 418 U.S. 405, 409-10 (1974). Neinast thus was obligated to show both that he acted with "[a]n intent to convey a particularized message," and that "in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." ^Q> Id. at 410-11. The first test is subjective. The second is objective.

Neinast asserted in his filings with the District Court that is is a common misconception that going barefoot is illegal and that he walks barefoot to demonstrate the falsity of this misconception. (R13, Plaintiff's Motion for Summary Judgment, Ex. 1, ¶4). As the District Court found, such conduct does not convey a sufficiently particularized message to meet the first prong of the Spence test. (R18, Order at 9). Neinast's message bears no resemblance to the specific political, religious, or ideological messages that courts have found sufficiently particularized to merit First Amendment protection. (R18, Order at 8); see Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, n.4 (1969) (wearing a black armband with a peace symbol to protest the Vietnam war); Texas v. Johnson, 491 U.S. 397, 399 (1989) (burning an American Flag during a demonstration protesting the policies of the Reagan administration at the Republican National Convention while chanting "red, white, and blue, we spit on you" ^Q> was speech).

Instead, walking barefoot is more like other forms of conduct that have been found to lack constitutional stature. See Dallas v. Stanglin, 490 U.S. 19, 25 (1989) (individuals who meet for recreational dancing are not "tak[ing] positions on public questions," ^Q> and thus are not engaged in particularized expression); Young v. New York City Transit Auth., 903 F.2d 146, 153 (2d Cir. 1990) (begging does not generally display a "particularized social or political message" ^Q>).² 

The court below also correctly held that Neinast's conduct fails to meet the second prong of the Spence test: the requirement that, given the surrounding circumstances, a "great likelihood" exists that his message would be understood by those who viewed it. Spence, supra, 418 U.S. at 410-411. Whether conduct is likely to meet the second prong of the Spence test is often dependent on the political or social context in which it occurs.

In Street v. New York, 394 U.S. 576 (1969), for instance, the plaintiff burned an American flag at a political rally protesting the slaying of civil rights leader John Meredith. While burning the flag, the plaintiff shouted that "[i]f they let that happen to Meredith, we don't need an American flag." ^Q> Id. at syllabus. Because of its specific context--occurring as it did at a rally specifically protesting government inaction and accompanied as it was by contemporaneous pure speech--the Court found that this conduct might have been understood by those viewing it.

In Spence v. Washington, 418 U.S. 405 (1974), the timing of the plaintiff's conduct (draping a flag with a peace symbol over his balcony) imbued it with symbolic meaning. The Court, in finding that this conduct reached the level of protected speech, noted: "[i]n this case, appellant's activity was roughly simultaneous with . . . the Cambodian incursion and the Kent State tragedy. . ., issues of great public moment. . . . [I]t would have been difficult for the great majority of citizens to miss the drift of appellant's point at the time that he made it." ^Q> Id. at 410 (emphasis added.)

In this case, no similar social or political context exists, and thus no basis exists to believe that the "great majority" of objective viewers would understand Neinast's purported message that going barefoot is legal. Id. at 411. Even if Neinast has a specific philosophy or message that he associates with going barefoot, doing so in the Library does not create a great likelihood that his message will be understood.

Before the District Court, Neinast also contended that, because he preached the virtues of going barefoot to various individuals and was sometimes asked questions about his bare feet, those factors converted his conduct into speech. Neinast is wrong. The plaintiffs in Young v. New York City Transit Auth., who challenged a city ordinance that prevented begging, made a similar argument, which the Court of Appeals rejected:

The plaintiffs also contend that [their conduct] sometimes occasion[s] questions from, and conversations with, passengers. We do not doubt that the proscribed activity may sometimes involve speech and upon occasion even give rise to the exchange of speech. We do not accept, however, that this incidental speech is one and the same as the conduct being regulated. Actual speech which may arise as in incident to conduct is not at issue here. The regulation at stake does not prevent any individual from speaking to passengers. Further, the First Amendment protects speech and not every act that may conceivably occasion engagement in conversation.

903 F.2d 146, 154 (2d Cir. 1990). (emphasis added). See also South Florida Free Beaches, Inc. v. Miami, 734 F.2d 608, 610 (11th Cir. 1984) (plaintiffs who advocated the benefits of nude sunbathing were not constitutionally entitled to engage in the practice; they could advocate their hobby through other means.)

Accordingly, because walking barefoot conveys no particularized message likely to be understood by an ordinary observer, the court below properly rejected Neinast's First Amendment speech claim.

B. THE DISTRICT COURT CORRECTLY HELD THE LIBRARY REGULATION REQUIRING SHOES DOES NOT VIOLATE NEINAST'S RIGHT TO RECEIVE SPEECH

In the court below, Neinast also argued that the Library regulation requiring shoes violates his First Amendment "right to receive speech." The District Court correctly rejected this claim. (R19, Order at 5-7). In the first instance, no right of physical access to speech in the Library exists. As important, even if such a right existed, the Library's regulation requiring shoes passes constitutional muster.

1. THE FIRST AMENDMENT RIGHT TO RECEIVE SPEECH DOES NOT CREATE AN AFFIRMATIVE RIGHT OF PHYSICAL ACCESS TO THE LIBRARY

In the context of this case, no basis exists to conclude that Neinast has a First Amendment right of access to the Library. Contrary to Neinast's claim, the right to receive information does not mean that one has a right of physical access.

Courts recognizing such a right have viewed it as a source of standing, enabling not only a would-be speaker but also his or her prospective audience to enforce the speaker's First Amendment right of expression. See, e.g., Johnson v. Stuart, 702 F.2d 193, 196 (9th Cir. 1983) (students had standing to challenge a ban on certain textbooks); Davis v. East Baton Rouge Parish Sch. Bd., 78 F.3d 920, 927 (5th Cir. 1996) (news agency had standing to pursue a claim that it was entitled to receive speech); In re Application of Dow Jones & Co., Inc., 842 F.2d 603, 608 (2d Cir. 1988) ("It is that right to receive speech that affords standing to the press to maintain this action." ^Q>); Pittman v. Cole, 2001 U.S. App. LEXIS 21376, n.12 (11th Cir. Oct. 3, 2001) ("[A]n injury . . . to the [receiver's] right to receive . . . suffices to confer standing" ^Q>). In other words, the right to receive speech protects what the First Amendment protects: specific utterances by willing speakers. It does not guarantee physical access to a particular facility or to a particular medium of expression.

Kleindienst v. Mandel, 408 U.S. 753 (1972) illustrates the way in which the right to receive has functioned. In Kleindienst, the Supreme Court considered a claim by university professors and students who wished to interview, debate, and speak with a lecturer from Belgium. Although the lecturer had been invited to attend a colloquium, he was denied a visa to enter the United States. The Court found that the "the First Amendment confers upon the appellee professors, [the right] to hear, speak, and debate with Mandel in person. . . ." ^Q> The Court, recognizing that Mandel was a willing speaker, held that his prospective listeners had standing to challenge the government act that prevented him from speaking. The Supreme Court, however, did not create an affirmative right to receive speech in a particular setting. It merely allowed someone besides the speaker to enforce the right of expression that the First Amendment has always protected.

Similarly, in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), the Court considered a complete ban on advertising reflecting the price of prescription drugs. In finding that a class of consumers who wished to receive this advertising could bring suit for violation of their "right to receive," the Court wrote that "[i]f there is a right to advertise, there is a reciprocal right to receive the advertising, and it may be asserted by these appellees." ^Q> Id. at 757. Further, the Court set forth what is the key principle in this area: "Freedom of speech presupposed a willing speaker. But where a speaker exists, as is the case here, the protection afforded is to the communication, to its source and to its recipients both." ^Q> Id. at 756 (emphasis added).

With a few exceptions inapplicable here,³  other cases considering the right to receive have done so in a similar light: as a corollary to the right of a speaker to communicate. See Thomas v. Collins, 323 U.S. 516, 534 (1945) (a labor organizer's right to speak and the right of workers "to hear what he had to say" ^Q> were abridged by a state law requiring organizers to register before soliciting union membership); Procunier v. Martinez, 416 U.S. 396, 408-409 (1974) (finding no need to examine First Amendment rights of prison inmates regarding censorship of their mail because such censorship equally infringed the rights of addressees.)

Neinast, conversely, proposes a "right to receive" that encompasses the unprecedented ability to enter a particular building where information is stored without restrictions. Relying on Kreimer v. Bureau of Police, 958 F.2d 1242 (3rd Cir. 1992), Neinast claims that any regulation limiting physical access to the Library must be subjected to heightened security under the First Amendment. Neinast, however, is wrong.

As noted above, the right to receive information does not contemplate a right of physical access. As important, although the Third Circuit in Kreimer reached the opposite conclusion, even that court concluded that a regulation requiring the wearing of shoes was constitutional. Id. at 1265.

In Kreimer, the court, as well as the court below, acknowledged that a public library is a limited public forum. As a limited public forum, the Library is obligated to allow only the exercise of those "right[s] that are consistent with the nature of the Library and consistent with the government's intent in designating the Library as a public forum." ^Q> (R18, Order at 6); Kreimer, supra, at 1262. Other activities, however, "need not be tolerated." ^Q> Kreimer, supra at 1262. Thus, restrictions that do not limit the First Amendment activities for which the government specifically created the forum need only be "reasonable and 'not an effort to suppress expression merely because public officials oppose the speaker's view." ^Q> United States v. Kokinda, 497 U.S. 720, 729 (1990); Kreimer, 958 F.2d at 1261-62. Under this standard, no question exists that the Library regulation at issue is valid.⁴ 

Neinast contended below that he goes barefoot to convey a message that "it is a misconception that it is illegal to be barefoot in public buildings." ^Q> (R8, Amended Complaint, ¶6 R13, Plaintiff's Motion for Summary Judgment, 1, ¶4-7; R18, Order at 8). In other words, Neinast goes barefoot to advocate that others do the same. Even if such conduct were speech, and it is not, the Library is not a forum for such advocacy. Instead, it is a storehouse of information in the form of books, records, and electronic data that is shared and communicated with Library patrons. As the District Court noted, that purpose is not implicated by the barefoot rule or its application to Neinast, who remains free to enter the Library (albeit with his shoes on). (R17, Transcript at 11).

Neinast, however, contends that such advocacy is "consistent" with the purposes for which the Library was created merely because it is nondisruptive. Neinast is wrong. As even the Kreimer court noted:

Finally, we reiterate that the Library is a limited designated public forum. The Library need only permit use of its facilities that is consistent with the intent of the government when opening this forum to the public. Even within the scope of these consistent uses, it seems obvious that the Library may regulate conduct protected under the First Amendment which does not 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 (emphasis supplied) (citations omitted).

C. EVEN ASSUMING THAT THE FIRST AMENDMENT PROVIDES AN AFFIRMATIVE RIGHT OF ACCESS TO THE LIBRARY, THE REGULATION IS VALID

Even if one assumes that a First Amendment right of access exists and assumes walking barefoot is protected speech, the court below correctly held that the regulation requiring shoes is a reasonable time, place, and manner restriction. (R18, Order at 5-7). Regulations governing the time, place, and manner of "protected" speech are upheld "so long as they are content neutral, closely tailored to serve a significant governmental interest, and allow for reasonable alternative channels of communication." ^Q> See Clark v. Community for Creative Non-Violence, 486 U.S. 288, 293 (1984); Kreimer, supra, 958 F.2d at 1255.

In this case, as the District Court held, the Library's regulation manifestly meets that test. (R18, Order at 7, 11). Requiring patrons to wear shoes serves to safeguard their health and safety from hazards unavoidable in a building that, as Neinast himself emphasizes, is open to all. Although Neinast claims that the Library has no interest in protecting the health and safety of Library patrons, such claim as a matter of law is simply untrue. As the District Court recognized, protecting the health and safety of citizens is a quintessential government interest. (R18, Order at 7, 11); see Posadas de Puerto Rico Ass'n v. Tourism Co. of Puerto Rico, 478 U.S. 328, 341 (1986) ("[W]e have no difficulty in concluding that . . . interest in the health, safety, and welfare . . . of its citizens constitutes a 'substantial governmental interest." ^Q>); United States v. Washington, 879 F.2d 1400, 1401 (6th Cir. 1989) (same); Mermaids, Inc. v. Currituck Cty. Bd. of Comm'rs., 19 F.Supp.2d 493, 497 (E.D.N.C. 1998) ("The ordinance at issue in this case also furthers a 'substantial governmental interest[:] promoting the health, safety, morals, and general welfare of the citizenry'" ^Q>).

Moreover, the regulation is narrowly tailored to effectuate this interest. The requirement of narrow tailoring is not, as Neinast contends, a heavy one. It simply requires "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." ^Q> Board of Trustees v. Fox, 492 U.S. 469, 480 (1989). As the District Court wrote "the requirement of narrow tailoring is satisfied 'so long as . . . the . . . substantial government interest would be achieved less effectively absent the regulation." ^Q> (R18, Order at 6). A regulation is not invalid merely because Neinast believes that the government could serve the interest by some less restrictive alternative. See Ward v. Rock Against Racism, 491 U.S. 781, 796-99 (1989); Kreimer, supra, 958 F.2d at 1264.

Thus, Neinast's argument regarding the likelihood of injury is irrelevant. Indeed, administrators are not required to produce studies regarding the object of a time, place, or manner regulation before the promulgation of a rule. Instead, they may rely on "their own wisdom and common sense" ^Q> in ascertaining whether a regulation will serve substantial or important governmental interests. See Sammy's Ltd. v. City of Mobile, 140 F.3d 993, 997 (11th Cir. 1998); Suburban Lodges of America, Inc. v. City of Columbus Graphics Comm'n, 2000 Ohio App. LEXIS 4701, *18 (Franklin Cty. 2000) ("[W]e will not second-guess the city's common-sense conclusion . . . Evidentiary proof in this regard is not constitutionally required" ^Q>).

Although evidentiary proof that the Library's substantial interest in keeping patrons safe is more effectively advanced with the existence of the policy than it would be without is not required, the Library has provided it. There is substantial documented evidence in the record to support the Library's contention that, although the Library staff is diligent in removing dangers from the Library's floors, there are at times significantly dangerous conditions in the Library's corridors and bathrooms justifying the policy. (R14, Defendants' Reply in Support of Summary Judgment, App. Tab A, #8). The Library's administrators, employing their "own wisdom and common sense," ^Q> have decided that this evidence provides a basis for the rule that shoes are required. (R13, Plaintiff's Motion for Summary Judgment Ex. 1, ¶5).

Finally, the policy is a minimal intrusion on personal freedom that leaves open ample alternative channels for protected communications. Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992). Neinast is free to visit the Library as often as he likes: all he has to do is put on a pair of shoes. As the Kreimer court noted:

[t]his rule leaves open alternative channels for communication in the sense that, so long as a patron complies with the rules, he or she may use the Library's facilities.

Id. at 1264. See also South Florida Free Beaches, Inc. v. Miami, 734 F.2d 608, 610 (11th Cir. 1984) (plaintiffs remained free to advocate the benefits of nude sunbathing, albeit while fully dressed).

Accordingly, even if an affirmative right of physical access to the Library exists, the Library's shoe requirement is valid as a reasonable time, place and manner restriction. The court below correctly so held and its decision in that regard should be affirmed.

II. THE COURT BELOW CORRECTLY HELD THAT THE LIBRARY REGULATION DOES NOT INFRINGE NEINAST'S RIGHT TO FREEDOM OF APPEARANCE

The District Court concluded that Neinast's due process claim based upon a supposed right to freedom of personal appearance was without merit. (R18, Order at 10-11). The court's decision is correct.

First, as even Neinast acknowledges, the Supreme Court has never recognized a constitutional right of personal appearance. At most, the Court assumed the existence of such a right before finding that it could not support relief in the case at issue. See Kelley v. Johnson, 425 U.S. 238, 244 (1976) ("[W]hether the citizenry at large has some sort of liberty interest within the Fourteenth Amendment in matters of personal appearance is a question on which this Court's cases offer little, if any guidance. We can, nevertheless, assume an affirmative answer for purposes of deciding this case, because we find that assumption insufficient to carry the day for respondent's claim" ^Q>) (emphasis added).

Moreover, even if such a right exists, as the court below noted, it is not a fundamental right requiring strict scrutiny. (R18, Order at 6). See e.g., United States v. Carolene Prods. Co., 304 U.S. 144, n.4 (1938) (holding that regulations should be subject to strict scrutiny only where the regulation falls "within a specific prohibition of the Constitution" ^Q>) or involves an invidious classification); see also Domico v. Rapides Parish Sch. Bd., 675 F.2d 100, n. 1 (5th Cir. 1982) ("The plaintiffs cannot claim that the right to choose one's hairstyle is a fundamental right whose deprivation will draw stricter scrutiny from the courts. Fundamental rights have generally been limited to basic matters such as procreation and family life" ^Q>); Karr v. Schmidt, 460 F.2d 609, 615 (5th Cir. 1972) ("We think it plain that individual liberties may be ranked in a spectrum of importance. At one end of the spectrum are the great liberties such as speech, religion, and association specifically guaranteed in the Bill of Rights. . . . At the other end of the spectrum are the lesser liberties that may be invaded by the state subject only to the same minimum test of rationality that applies to all state action[.] It is our firm belief that this asserted freedom does not rise to the level of fundamental significance which would warrant our recognition of such a substantive constitutional right" ^Q>).⁵  Thus, to the extent such a right exists, it is not "fundamental" in the sense that draws heightened scrutiny.

Because the supposed right at issue is not a fundamental one, regulations that abridge that right are subject only to rational basis review . Domico v. Rapides Parish Sch. Bd., 675 F.2d 100, n.1 (5th Cir. 1982); Karr v. Schmidt, 460 F.2d 609, 615 (5th Cir. 1972); Rathert v. Peotone, 903 F.2d 510, 516 (7th Cir. 1990) (Although "choice of appearance is an element of liberty[,]" the court must evaluate whether the government action "bear[s] a rational relationship to a legitimate public interest" ^Q>); In re Alcala, 222 Cal. App. 3d 345, 367-68 (1990) ("In summary, we hold that personal expression through clothing choice implicates 'the more general contours of the substantive liberty interest protected by the Fourteenth Amendment' . . . We emphasize that we do not classify the nonspecific right to clothing choice with rights that the courts have found to be fundamental . . . No court has so held, and we decline to declare a rule that would require strict judicial scrutiny of every regulation of personal appearance" ^Q>);

Neinast attempts to distinguish these cases as involving students, prisoners, immigrants and others who, he contends, should expect to be more pervasively regulated than "free adults" like himself. As the District Court recognized, however, the Library's rule does not prevent Neinast, as an adult free citizen, from dressing however he likes:

The library's regulation doesn't prohibit anyone from going barefoot. Indeed, when you leave the library and go onto the sidewalk from the library, you can take your shoes off and walk around the city barefoot as much as you want. If you're going to be in the library for two hours, it's no different than if you're going to play basketball for two hours. During that period, you're going to play basketball in shoes, likely, or if you're going to play tennis, or you are going to engage in any other activities that might require you to wear shoes.

(R17, Transcript at 11).

Under the rational basis test, a regulation must be upheld as long as it furthers a legitimate state purpose. See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976). The government need not even articulate the reasoning behind its decision at the moment the decision is made. See Hancock Industries v. Schaeffer, 811 F.2d 225, 238 (3d Cir. 1987) ("It is, of course 'constitutionally irrelevant whether [the proposed reasoning] in fact underlay the legislative decision'" ^Q>). Rather, the burden in upon the challenging party to negate any reasonably conceivable state of facts that could provide a rational basis. Barket, Levy & Fine v. St. Louis Thermal Energy Corp., 21 F.3d 237, 240 (8th Cir. 1994) ("Under rational basis review, [a court] accepts at face value contemporaneous declarations of the [governmental] purposes, or in the absence thereof, rationales constructed after the fact, unless 'an examination of the circumstances forces [it] to conclude that they could not have been a goal of the [classification]'" ^Q>); Hancock Industries, supra, 811 F.2d at 237-38 ("[T]he rational basis test [does not] involve[] the court in a determination of historic fact and, accordingly, the court has no occasion to inquire into the subjective motives of the decisionmakers. . . . [W]here there are plausible reasons for the legislative action, the court's inquiry is at an end" ^Q>).

Indeed, the Court may construct its own rationale. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981) (court may consider all evidence "presented to [the legislature], and . . . of which [the Court] may take judicial notice" ^Q>); Borman's, Inc. v. Michigan Property & Casualty Guaranty Ass'n, 925 F.2d 160 (6th Cir. 1991) (same).

As the District Court found, the Library has a clearly articulated legitimate interest: protecting the health and safety of Library patrons. (R18, Order at 10-11).⁶  There can be no argument that the health and safety of Library patrons while on the Library's grounds is not a legitimate interest. See Curto v. Harper Woods, 954 F.2d 1237 (6th Cir. 1992) ("[T]he safety and general welfare of . . . citizens" ^Q> is a legitimate government interest"); Oladipupo v. Austin, 104 F.Supp.2d 626 (W.D.La. 2000) (preventing foot injuries is a legitimate governmental interest).

A regulation requiring shoes is rationally related to this legitimate end. As the District Court noted, the Library's facilities are heavily-trafficked public buildings, and public buildings sometimes contain hazards that cannot be avoided. (R14, Defendant's Reply in Support of Summary Judgment, App. Tab A, #8; R18, Order at 5-7). Indeed, despite the Library's efforts, events do occur which sometimes make its floors unsafe for those who would walk barefoot. The Library's corridors and bathrooms have at times held a number of dangers, including broken glass, blood, semen, and human waste, any of which might harm someone walking barefoot. Id. Although Neinast disagrees about the overall effectiveness of the Library's methods, he cannot seriously contend that the shoe requirement is irrational, as required.⁷ 

Accordingly, the court below properly found that Neinast's constitutional claim in this regard to be without merit and its decision should be affirmed.

III. THE DISTRICT COURT CORRECTLY REJECTED NEINAST'S PROCEDURAL DUE PROCESS CLAIM

Finally, Neinast contends that the Library violated his right to procedural due process when it (1) delegated authority to make the regulation to Mr. Black and (2) evicted him for a day based on his repeated violation of the barefoot rule. The court below, however, properly rejected these claims.

A. NEINAST'S CLAIM IS BASED ON STATE LAW, NOT PROCEDURAL DUE PROCESS

As to the first claim, the District Court correctly held no procedural due process right exists in the generalized rulemaking process of political subdivisions or agencies (the entities which the Library's Board of Trustees most closely resembles). R18, Order at 13, citing United States v. Florida East Coast Ry. Co., 410 U.S. 224, 244-46 (1973) (contrasting due process rights in individual administrative adjudication with the absence of such rights in administrative rulemaking); Reichelt v. Gates, 1992 U.S. App. LEXIS 14182, *7 (9th Cir. June 11, 1992) ("Moreover, a plaintiff cannot base a due process claim on an administrative agency's improper adoption of a rule of general applicability" ^Q>); Because the shoe requirement is "of general applicability," the method of its promulgation is irrelevant to any procedural due process right possessed by Plaintiff.

As a result, if the delegation of authority to Mr. Black was improper (and it was not), it was because the Board exceeded its statutory powers under Ohio Revised Code § 3375.40 (its authorizing statute). Such delegation, however, is manifestly a question of state statutory interpretation. See In re Miller, 20 Ohio App. 3d 346, 347 (Franklin Cty. 1984) (scope of an Ohio administrative body's powers is a question of statutory interpretation); State ex rel. Cincinnati v. Ohio Civil Rights Comm'n., 2 Ohio App. 3d 287, 288 (Franklin Cty. 1981) (improper exercises of administrative power are the subject of state law determinations). The Board has interpreted Ohio Revised Code § 3375.40 in a particular way to allow it to "make and publish rules" by directing its Executive Director to establish certain rules dealing with the day-to-day business of the Library. Neinast contends that this interpretation of the statute is in error.

The mere fact that Neinast disagrees with the Board's interpretation of the statute, however, does not vest in him a federal due process right. United States v. Florida East Coast Ry. Co., 410 U.S. 224, 244-46 (1973) The law is well settled that mere allegations of state law violations are not sufficient to state a claim under § 1983. See Baker v. McCollan, 443 U.S. 137, 146 (1979) ("[§ 1983] does not cover official conduct that allegedly violates state law" ^{Q> E11>}); Huron Valley Hosp. Inc. v. Pontiac, 887 F.2d 710, 714 (6th Cir. 1989) ("Section 1983 authorized the 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" ^Q>) (emphasis added).

Neinast, however, relies upon Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985). He contends that Spruytte stands for the proposition that enforcement of a rule that was promulgated according to improper procedures amounts to a violation of procedural due process. Spruytte does not reach that far. In Spruytte, the State of Michigan had an administrative rule that conferred upon prisoners the right to receive any book that did not threaten the security of the prison. The rule provided that a book's potential harm to security would be evaluated on a book-by-book basis, but prison officials nonetheless determined that only books received directly from the publisher were acceptable because only those books were not a threat to the prison.

Thus, the due process issue in Spruytte was whether a rule that ignored the state-provided procedure for determining whether a book was a threat to security violated due process, not whether errors in the promulgation of the rule did so. Indeed, Spruytte makes clear that "the state's failure to comply with its own procedural requirements is not in itself a violation of due process." Id. at 508. (emphasis omitted). But, the court noted that it is a violation of due process when "a state creates an entitlement and provides that it may not be defeated except upon a finding of a specific substantive predicate." Id. (emphasis added).

In this case, Neinast has no liberty or property entitlement in the process by which the Library promulgates its rules. Because the process by which the Library promulgates the regulation requiring shoes is a state law issue, the District Court correctly rejected Neinast's due process claim on this ground. (R18, Order at 13).

B. ANY DEPRIVATION FROM THE EVICTION WAS DE MINIMIS

Neinast also contends that the Library violated his procedural due process rights when it issued a one-day eviction notice. Neinast's claim, however, is without merit. The eviction notice clearly stated that he was evicted for repeated harassment of the staff, and the only property or liberty interests at issue are his claimed First Amendment "right" to access the Library and a claimed right of personal appearance. The "eviction" did not abridge either right.

But even if Neinast possessed some interest of constitutional dimensions in entering the library, the one-day eviction was no more than a de minimis deprivation, not subject to procedural due process. In contexts where a far more well-defined interest was at stake--government employment, for example--a three-day deprivation was considered de minimis. See Boals v. Gray, 775 F.2d 686, 697 (6th Cir. 1985) (a three-day suspension of government employment is a de minimis deprivation); Gillard v. Norris, 857 F.2d 1095, 1098 (6th Cir. 1988). In short, a one-day eviction from the Library did not have the kind of substantial deprivation of liberty or property with which procedural due process jurisprudence is concerned.

For all of the reasons outlines above, the District Court's grant of summary judgment for the Library should be affirmed in all respects.

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, I hereby certify that the foregoing Brief of Appellees Columbus Metropolitan Library, Larry D. Black and Vonzell Johnson complies with the type-volume limitation of the Federal Rules of Appellate Procedure. The Brief contains 8,626 words and 966 lines of text.

The undersigned hereby certifies that a copy of the foregoing was served by regular U.S. mail, postage prepaid, upon Robert A. Neinast, Appellant Pro Se, 8617 Ashford Lane, Pickerington, Ohio 43147 this 8th day of July, 2002.

Pittman v. Cole, 2001 U.S. App. LEXIS 21376

Suburban Lodges of America, Inc. v. City of Columbus Graphics Comm'n, 2000 Ohio App. LEXIS 4701, *18 (Franklin Cty. 2000)

Reichelt v. Gates, 1992 U.S. App. LEXIS 14182, *7 (9th Cir. June 11, 1992)

Pursuant to Sixth Circuit Rule 30(b), Defendant-Appellees Board of Trustees of the Columbus Metropolitan Library, Larry D. Black, and Vonzell Johnson hereby designate the following portions of the District Court record to be included in the Joint Appendix:

1. Docket Sheet for Robert A. Neinast v. Columbus Metropolitan Library, et al., United States District Court for the Southern District of Ohio, Eastern Division Case No. C2-01-443.

2. Complaint for Declaratory and Injunctive Relief, filed April 3, 2001.

3. Amended Complaint for Declaratory and Injunctive Relief, filed May 10, 2001.

4. Defendants' Motion for Summary Judgment, Exhibit A (Affidavit of Larry D. Black), with all attachments.

5. Defendants' Reply in Support of Summary Judgment, Appendix Exhibit A, with all attachments.

6. Transcript of February 22, 2002 oral argument before the Honorable Algenon L. Marbley, entered April 22, 2002.

7. Order (denying Plaintiff's Motion for Summary Judgment and granting Defendants' Motion for Summary Judgment), entered March 27, 2002.

8. Robert Neinast's Notice of Appeal, filed April 24, 2002.

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