COURT OF COMMON PLEAS
FRANKLIN COUNTY, OH


ROBERT A. NEINAST
8617 Ashford Lane
Pickerington, OH 43147

Plaintiff,
v.
BOARD OF TRUSTEES OF THE COLUMBUS METROPOLITAN LIBRARY
96 S. Grant Ave.
Columbus, OH 43215-4781

and
PATRICK A. LOSINSKI
Director of Columbus Metropolitan Library
96 S. Grant Ave.
Columbus, OH 43215-4781
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Case No. 04 CVH 06 6341

Category: H

Judge Miller





AMENDED COMPLAINT FOR DECLARATORY JUDGMENT, PERMANENT INJUNCTION



Now comes Plaintiff Robert A. Neinast, acting pro se, and for his Amended Complaint, respectfully states as follows:

1. Plaintiff Robert A. Neinast is a citizen and a resident of Ohio, residing at 8617 Ashford Lane, Pickerington, OH, and has been a cardholder and user of the Columbus Metropolitan Library at all times relevant herein. [Answer]

2. Defendant Board of Trustees of the Columbus Metropolitan Library ("the Board") is the governing authority for the Columbus Metropolitan Library ("the Library"), organized pursuant to Chapter 3375 of the Ohio Revised Code. The Board is a body politic and corporate. The Board is authorized under Section 3375.40(H) of the Ohio Revised Code to make and publish rules for the proper operation and management of the library. [Answer]

3. Defendant Patrick A. Losinski is the Executive Director of the Columbus Metropolitan Library and is being sued in his official capacity. Larry D. Black was the Executive Director of the Library, until his retirement on June 28, 2002. [Answer]

4. Within the ambit of his personal liberty, Plaintiff Neinast customarily and regularly goes barefoot. While this exercise of personal liberty requires no justification, Plaintiff Neinast avers that he goes barefoot for health, comfort, expressive and spiritual reasons. [Answer]

5. Plaintiff Neinast has a continuing interest in using the Library in his preferred mode of dress. [Answer]

6. On September 12, 1997, November 10, 2000, January 23, 2001, and March 2, 2001, Plaintiff Neinast was evicted from the Main Branch of the Columbus Metropolitan Library for not wearing shoes. In the March 2 encounter, Neinast was also presented with a one-day eviction from the Library. [Answer]

7. The Patron Regulations of the Library (File Code: 20.14) in effect at that time, as approved by the Board, contain no prohibition on using the Library barefoot. [Answer]

8. The Eviction Procedure of the Library (File Code: 20.142) in effect at that time, as approved by Mr. Black, provides for the eviction of patrons with no shoes. [Answer]

9. The Eviction Procedure of the Library (File Code: 20.142) clearly specifies that the procedure for the first and all subsequent violations of the barefoot policy is to warn the patron and to have the patron either leave or put on shoes. The Eviction Procedure does not countenance a formal one-day eviction for violation of the barefoot policy. [Answer]

10. The enforcement of a dress code against a non-disruptive mode of dress is not related to the proper management and operation of the Library. [Answer]

11. Plaintiff Neinast wrote to Mr. Black complaining of the enforcement of an Eviction Procedure without a corresponding Patron Regulation, the lack of authority of the Board to promulgate a regulation prohibiting a non-disruptive form of dress, and the deprivation of his right to receive speech. Mr. Black defended the barefoot policy. [Answer]

12. Plaintiff Neinast wrote to each member of the Board complaining of the enforcement of an Eviction Procedure without a corresponding Patron Regulation, the lack of authority of the Board to promulgate a regulation prohibiting a non-disruptive form of dress, and the deprivation of his right to receive speech. Only Board President David C. Swaddling responded, claiming that the barefoot policy, as enforced by Mr. Black, was authorized. [Answer]

13. Plaintiff Neinast's follow-up letter to Mr. Black and the President of the Board of Trustees Philip C. Johnston (in January of 2001, Mr. Swaddling's term as President expired, and Mr. Johnston was elected in his place) after the March 2, 2001 eviction elicited a reply from Mr. Black that did not address the fact that library personnel did not follow the Eviction Procedure, but instead said that "We will not respond to further correspondence on this matter." [Answer]

14. On April 3, 2001, an action was brought in the Franklin County Court of Common Pleas pursuant to 42 U.S.C. § 1983 and state law issues to address this deprivation of Plaintiff's free speech, personal appearance, an due process rights secured by the United States Constitution, the Ohio Constitution, the laws of the United States, and the laws of Ohio. That action was 01 CV 04 3104. [Answer]

15. The Library removed that action to Federal Court. On March 27, 2002, the Federal District Court of the Southern District of Ohio granted the Library’s motion for summary judgment on his free speech, personal appearance and due process claims, but neither addressed nor remanded Neinast’s state law claims. Neinast appealed to the Sixth Circuit Court of Appeals, which affirmed on October 10, 2003, but again did not address Neinast’s state law claims. The Supreme Court denied Neinast’s petition for a writ of certiorari on April 19, 2004. [Answer]

16. On May 3, 2004, Neinast wrote to Losinski to see if Losinski, as a different Executive Director, would consider removing the shoe rule. As of this date, Mr. Losinski has not responded to Neinast’s letter. [Answer]

17. On June 10, 2004, Neinast returned to the Library for the first time in three years. He grudgingly wore flip-flops, got a book, sat in a Library chair, removed his flip-flops, and started reading. After 10 minutes he was approached by a guard, and told that he had to leave if he did not put on his flip-flops. The guard said that shoes were required at all times in the Library. [Answer]

18. On June 14, 2004, Neinast entered the Library barefoot, did some research, and started reading a library book. He was later approached by a guard and told he had to leave to put on shoes, and that he was welcome to return if he was wearing shoes. [Answer]

19. On August 26, 2004, the Board enacted a new Customer Code of Conduct Policy. this Policy contains a provision requiring that shoes be worn in the Library, prohibiting "Improper dress, including bare feet and no shirt." [Answer]

20. Plaintiff has been irreparably injured by the denial of his right to use the Library, and absent this Court's intervention, the Plaintiff will continue to be irreparably injured by the denial of his right to use the Library. [Answer]

CAUSE OF ACTION

21. Paragraphs 1 through 20 are hereby incorporated by reference. [Answer]

22. Defendant Losinski, and Mr. Black before him, with the acquiescence and support of Defendant the Board, enforced a shoe rule, in the guise of an Eviction Procedure, that had not been promulgated by the Board. [Answer]

23. The Board has not been granted the authority under statute to make and enforce a shoe rule. [Answer]

24. The enforcement of these shoe rules resulted in all the above-mentioned evictions, depriving Plaintiff of his right to use the Library. [Answer]



WHEREFORE, Plaintiff Robert A. Neinast respectfully requests that this Court grant him judgment as follows:

A. Declare, under the Ohio Revised Code Section 2721.02, that the Board does not have the statutory authority under the law to make regulations requiring patrons to wear shoes in the Library.

B. Issue a permanent injunction preventing the Board of Trustees, the Executive Director, or any other Library employee from enforcing any rule or regulation specifying that footwear must be worn in the Columbus Metropolitan Library.

C. Order the removal of all signs at all branches of the Columbus Metropolitan Library that specify that footwear is required, and the removal of footwear references in the Customer Code of Conduct Policy and Eviction Policy.

D. Award Plaintiff any other legal and equitable relief to which he is entitled.



  Respectfully submitted,
_______________________
Robert A. Neinast
Plaintiff, PRO SE
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@worldnet.att.net


CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served, by regular U.S. mail, postage prepaid upon Philomena M. Dane and Johnathan E. Sullivan, Attorneys for Defendants, Squire, Sanders & Dempsey, L.L.P., 1300 Huntington Center, 41 South High Street, Columbus, OH, 43215, this     day of September, 2004.