Case 3:09-cv-00250-HES-TEM Document 25 Filed 04/21/2009 Page 1 of 14

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

S.D., individually and as Next Friend of

A.J.D., and M.P., individually and as
Next Friend of O.J.P.,1

Plaintiffs,

vs. Case No.: 3:09-cv-250-J-20TEM

ST. JOHNS COUNTY SCHOOL DISTRICT,

JOSEPH JOYNER, individually and in his
official capacity as Superintendent of the
St. Johns County School District; GEORGE
LEIDIGH, individually and in his official
capacity as Principal of The Webster School;
DAWN CARONNA, individually and in her
official capacity; DEBBIE MOORE,
individually and in her official capacity; and
SHERYL NELSON, individually and in her
official capacity,

Defendants.
__________________________________________

VERIFIED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiffs, S.D., individually and as Next Friend of A.J.D., and M.P., individually and as Next

Friend of O.J.P., by and through undersigned counsel, hereby sue the Defendants and allege as

follows:

INTRODUCTION

This is an action under the Constitution and laws of the United States pursuant to 42 U.S.C.

§1983, alleging that the Defendants and their agents, employees and representatives, have violated

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Plaintiffs are designated by the pseudonyms to protect the privacy of the minor children
pursuant to Fed.R.Civ.P. 5.2.
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and are seeking to violate Plaintiffs’ fundamental rights secured by the First and Fourteenth

Amendments to the United States Constitution to be free from state-sponsored religion, and to free

exercise of religion. In particular, Plaintiffs seek damages and preliminary and permanent injunctive

relief against religious instruction and indoctrination, and ostracization, of the minor third grade

student Plaintiffs in a public school system through teachers employed by the Defendant school

district, having the minor Plaintiffs and their third grade schoolmates rehearse, memorize and

perform a blatantly sectarian and proselytizing religious song during school time and on school

grounds with no alternative other than exclusion from classroom activities and exclusion from the

performance of various songs at a planned school event. Plaintiffs also seek relief arising from the

implementation of third grade students’ rehearsing, memorizing and performing yet a second

sectarian and proselytizing song in a music class in an attempt to circumvent the preliminary

injunction entered previously in this case and to attempt to retaliate against Plaintiffs for bringing

this action.

JURISDICTION AND VENUE

1. Jurisdiction over Plaintiffs' claims under the United States Constitution is proper in

this Court pursuant to 28 U.S.C. §§ 1331(a), 1343(3), and 1343(4), and pursuant to 28 U.S.C. §2201,

relating to declaratory judgments.

2. Venue is proper in this district and division as the various acts which form the basis

of this complaint occurred within the Middle District of Florida, Jacksonville Division.

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PARTIES

3. Plaintiff S.D. is a citizen of the United States and of the State of Florida, who resides

in St. Johns County, Florida, and is the mother of minor Plaintiff, A.J.D., who is a third grade

student at The Webster School, a public school of the Defendant St. Johns County School District.

4. Plaintiff M.P. is a citizen of the United States and of the State of Florida, who resides

in St. Johns County, Florida, and is the mother of minor Plaintiff, O.J.P., who is a third grade student

at The Webster School, a public school of the Defendant St. Johns County School District.

5. Defendant St. Johns County School District is responsible for the supervision,

training, instruction, discipline, control and conduct of its teachers of the St. Johns County School

District and makes policy for the St. Johns County School District. At all times relevant, Defendant

St. Johns County School District had the power, right and duty to train and control its teachers,

agents and employees to conform to the Constitution of the United States and to ensure that all

orders, rules, instructions, regulations and school activities of the St. Johns County School District

are consistent with the Constitution of the United States. At all times relevant, Defendant St. Johns

County School District, its agents and employees acted under color of State law.

6. Defendant Joseph Joyner is, and at all times material hereto was, the Superintendent

of the St. Johns County School District and in such position was and is responsible for the

supervision, training, instruction, discipline, control and conduct of teachers of The Webster School.

At all times relevant, Defendant Joyner had the power, right and duty to train and control teachers,

agents and employees of The Webster School to conform to the Constitution of the United States

and to ensure that all orders, rules, instructions, regulations and school activities of The Webster

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School are consistent with the Constitution of the United States. At all times relevant, Defendant

Joseph Joyner acted under color of State law.

7. Defendant George Leidigh is, and at all times material hereto was, Principal of The

Webster School and in such position was and is responsible for the supervision, training, instruction,

discipline, control and conduct of teachers of The Webster School. At all times relevant, Defendant

Leidigh had the power, right and duty to train and control teachers, agents and employees of The

Webster School to conform to the Constitution of the United States and to ensure that all orders,

rules, instructions, regulations and school activities of The Webster School are consistent with the

Constitution of the United States. At all times relevant, Defendant George Leidigh acted under color

of State law.

8. Defendant Dawn Caronna is a teacher of the third grade class in which both of the

minor Plaintiffs are students at The Webster School. At all times material hereto, Defendant

Caronna acted under color of State law.

9. Defendant Debbie Moore is a teacher at The Webster School. At all times material

hereto, Defendant Moore acted under color of State law.

10. Defendant Sheryl Nelson is a music teacher at The Webster School. At all times

material hereto, Defendant Nelson acted under color of State law.

11. Defendants Joyner Leidigh, Caronna, Moore and Nelson are sued both individually

and in their official capacities.

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FACTUAL ALLEGATIONS

12. Plaintiffs A.J.D. and O.J.P. are and were, at all times material hereto, students in the

third grade at the Webster School, a public elementary school of the St. Johns County School

District.

13. In or about late February 2009, the minor Plaintiffs, together with the remainder of

their third grade class at the Webster School, were provided by their classroom teacher, Defendant

Dawn Caronna, with instructions to practice certain songs in order for them to be prepared to

perform the songs during a school program at or near the end of the 2008-2009 academic year.

Unlike the previous songs practiced in the minor Plaintiffs’ classes, the lyrics to the songs to be

practiced and performed were not sent home with students.

14. The songs chosen by the teachers for the practices and performances referenced in

the preceding paragraph had been and continued to be practiced by the students in class during class

time and led by their third grade teacher, Defendant Caronna, until on or about the date on which

the instant suit was filed.

15. Practices of the songs occurred regularly during class time and were to continue

occurring until the scheduled performance on or about April 30, 2009.

16. One of the songs selected for practice and performance is entitled, “In God We Still

Trust,” and carries the following lyrics, which the minor Plaintiffs are being, and have been, required

to practice and learn:

You place your hand on His Bible

When you swear to tell the truth
His Name is on our greatest monuments
And all our money too
And when we pledge allegiance...
There’s no doubt where we stand

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There’s no separation...
We’re one nation under Him
In God we still trust
Here in America
He’s the one we turn to
When the going gets rough
He is the source of all our strength
The one who watches over us
Here in America
In God we still trust
Now there are those among us
Who want to push him out
And erase His name from everything
This country’s all about
From the schoolhouse to the courthouse
They’re silencing His word
Now it’s time for all believers
To make our voices heard
In God we still trust
Here in America
He’s the one we turn to
When the going gets rough
He is the source of all our strength
The one who watches over us
Here in America
In God we still trust
Here in America
Here in America
In God we still trust
Here in America
Here in America
Here in America
In God we still trust
Here in America
In God we still trust
Here in America

17. The rehearsal of the song “In God We Still Trust” in class and during class time, and

its scheduled performance by public school students including the minor Plaintiffs, renders the

minor Plaintiffs ostracized and criticized on the basis of the religious beliefs of themselves and their

families, which are distinct from the religious beliefs expressed in the song “In God We Still Trust,”

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and further interferes with the religious beliefs that the adult Plaintiffs seek to instill in their minor

children.

18. Upon information and belief, Defendant Debbie Moore has or shares responsibility

for the annual performance at issue and chose the song “In God We Still Trust” for inclusion in the

students’ performance.

19. Upon information and belief, a parent of a first grade student at The Webster School

complained in or about February 2009 to Defendant Leidigh about the use of the song “In God We

Still Trust” as unacceptable, and was informed by Defendant Leidigh that approval to use the song

had previously been sought from Defendant Leidigh, that Defendant Leidigh had been informed that

the use of the song had been previously approved by the Defendant District and that any further

questions should be directed to either Defendant Joyner or a secondary-school music director.

20. Upon information and belief, Defendant Joyner is a member of the steering

committee of an organization called Marketplace Christian Professional Resources, the objective

of which is to promote the Christian religion in places of work and in public schools and which has

published a booklet promoting and entitled, “Christians’ Rights in the Workplace and School.” See

http://www.upray2.com; http://staugustine.com/stories/072508/religion_072508_076.shtml.

21. On or about March 11, 2009, Defendant Caronna informed the students in her class,

including the minor Plaintiffs, that anyone who objected would not be required to practice “In God

We Still Trust,” but would be excluded from participating in the entire performance in which the

song was selected to be included with other songs performed by Defendant Caronna’s third grade

class and other students. Previously, the minor Plaintiffs had never been informed by Defendant

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Caronna or any other member of The Webster School faculty or administration that participation in

practicing the song was voluntary.

22. On April 15, 2009, this Court granted a preliminary injunction against Defendants’

directing or causing public school students at The Webster School to rehearse or perform “In God

We Still Trust.”

23. On April 20, 2009, Defendant Nelson taught the minor Plaintiffs and their third grade

classmates in the music class she teaches to them weekly the song, “Chatter With the Angels,” a

sectarian and proselytizing song with the following lyrics:

Chatter with the Angels

Soon in the morning
Chatter with the Angels
In that land!
Chatter with the Angels
Soon in the Morning
Chatter with the Angels
Join that Band!
I hope to join that band and
Chatter with the Angels
All day long!
I hope to join that band and
Chatter with the Angels
All day long!
Chatter with the Angels
Soon in the morning
Chatter with the Angels
In that land!
Chatter with the Angels
Soon in the Morning
Chatter with the Angels
Join that Band!
I hope to join that band and
Chatter with the Angels
All day long!
I hope to join that band and
Chatter with the Angels
All day long!

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Chatter with the Angels

Soon in the Morning
Chatter with the Angels
In that land!
Chatter with the Angels
Soon in the morning
Chatter with the Angels
Join that Band!

I hope to join that band and

Chatter with the Angels
All day long!
I hope to join that band and
Chatter with the Angels
All day long!
Chatter with the angels all day long.

24. Defendant Nelson informed the minor Plaintiffs and their classmates that they would

further rehearse “Chatter With the Angels” in future weekly music classes.

25. Defendant Joyner and Defendant District, their agents and employees, acting within

their authority and under color of State law, instituted and followed practices, customs and policies

which directly resulted in their directing or causing public school students at The Webster School

to rehearse or perform sectarian and proselytizing songs. Alternatively, Defendant Joyner and

Defendant District delegated final policymaking authority regarding such songs to Defendants

Leidigh, Caronna, Moore and/or Nelson.

COUNT I

Establishment of Religion

26. Paragraphs 1 through 25, above, are hereby realleged and incorporated by reference

herein.

27. The Defendants, through the rehearsal and performance of the song “In God We Still

Trust,” in the Defendant St. Johns County School District’s public school system, has acted with the

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purpose and effect of advancing and endorsing sectarian religious beliefs to public school students,

in violation of the First and Fourteenth Amendments to the United States Constitution.

28. As a direct and proximate result of the foregoing, Plaintiffs have suffered damages

and further are entitled to preliminary and permanent injunctive relief against the above-described

religious instruction and indoctrination in the public schools of the Defendant.

COUNT II

Interference With Free Exercise of Religion

29. Paragraphs 1 through 25, above, are hereby realleged and incorporated by reference

herein.

30. The Defendants, through the rehearsal and performance of the song “In God We Still

Trust” by minor third grade students in Defendant St. Johns County School District’s public schools,

have interfered with the adult Plaintiffs’ right to raise their children in a manner consistent with the

adult Plaintiffs’ own religious beliefs and all Plaintiffs’ right to freely exercise their own religion,

in violation of the First and Fourteenth Amendments to the United States Constitution.

31. As a direct and proximate result of the foregoing, Plaintiffs have suffered damages

and further are entitled to preliminary and permanent injunctive relief against the above-described

interference with the Plaintiffs’ right to free exercise of religion.

COUNT III

Establishment of Religion

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32. Paragraphs 1 through 25, above, are hereby realleged and incorporated by reference

herein.

33. The Defendants, through the rehearsal and performance of the song “Chatter With

the Angels,” in the Defendant St. Johns County School District’s public school system, has acted

with the purpose and effect of advancing and endorsing sectarian religious beliefs to public school

students, in violation of the First and Fourteenth Amendments to the United States Constitution.

34. As a direct and proximate result of the foregoing, Plaintiffs have suffered damages

and further are entitled to preliminary and permanent injunctive relief against the above-described

religious instruction and indoctrination in the public schools of the Defendant.

COUNT IV

Interference With Free Exercise of Religion

35. Paragraphs 1 through 25, above, are hereby realleged and incorporated by reference

herein.

36. The Defendants, through the rehearsal and performance of the song “Chatter With

the Angels” by minor third grade students in Defendant St. Johns County School District’s public

schools, have interfered with the adult Plaintiffs’ right to raise their children in a manner consistent

with the adult Plaintiffs’ own religious beliefs and all Plaintiffs’ right to freely exercise their own

religion, in violation of the First and Fourteenth Amendments to the United States Constitution.

37. As a direct and proximate result of the foregoing, Plaintiffs have suffered damages

and further are entitled to preliminary and permanent injunctive relief against the above-described

interference with the Plaintiffs’ right to free exercise of religion.

COUNT V

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Retaliation

38. Paragraphs 1 through 25, above, are hereby realleged and incorporated by reference

herein.

39. The Defendants’ actions in directing or causing public school students at The

Webster School to rehearse or perform the song “Chatter With the Angels” constitutes retaliation

against Plaintiffs for their having instituted this case and having obtained preliminary injunctive

relief against Defendants in regard to the song “In God We Still Trust,” in violation of their right

to access the Court and petition the Court for redress of their grievances, secured by the First and

Fourteenth Amendments to the United States Constitution.

40. As a direct and proximate result of the foregoing, Plaintiffs have suffered damages

and are entitled to preliminary and injunctive relief against the above-described violation of their

right to be free from retaliation against them for their exercise of their right to access to the Court

and to petition the Court for redress.

PRAYER FOR RELIEF

Plaintiffs demand judgment as follows:

(a) A judgment declaring that Defendant’s religious instruction and indoctrination

referenced above violations the First and Fourteenth Amendments to the Constitution of the United

States;

(b) Orders preliminarily and permanently enjoining the religious instruction and

indoctrination described above;

(c) Awards of monetary damages;

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(d) An award of Plaintiffs’ reasonable attorney’s fees and costs pursuant to 42 U.S.C.

§1988; and

(e) Such other and further relief to Plaintiffs as the Court deems to be just, proper and

equitable under the circumstances.

DEMAND FOR JURY TRIAL

Plaintiffs demand trial by jury on all issues so triable.

Respectfully submitted,

/s/ D. Gray Thomas

Wm. J. Sheppard, Esquire
Florida Bar No.: 109154
D. Gray Thomas, Esquire
Florida Bar No.: 956041
Matthew R. Kachergus, Esquire
Florida Bar No.: 503282
Sheppard, White, Thomas & Kachergus, P.A.
215 Washington Street
Jacksonville, Florida 32202
Telephone: (904) 356-9661
Facsimile: (904) 356-9667
Email: sheplaw@att.net
COUNSEL FOR PLAINTIFFS

CERTIFICATE OF SERVICE

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I HEREBY CERTIFY that on April 21, 2009, I electronically filed the foregoing with the

Clerk of the Court by using CM/ECF System which will send a notice of electronic filing to the

following:

J. David Massey, Esquire

Robert J. Sniffen, Esquire
Sniffen Law Firm, P.A.
211 East Call Street
Tallahassee, Florida 32301

Frank D. Upchurch, III, Esquire

Richard Q. Lewis, III, Esquire
Upchurch, Bailey and Upchurch, P.A.
Post Office Drawer 3007
St. Augustine, Florida 32085

I HEREBY CERTIFY that on April 21, 2009, a true and correct copy of the foregoing

document and the notice of electronic filing was sent by United States Mail to the following non-

CM/ECF participants:

N/A

/s/ D. Gray Thomas

ATTORNEY

ldh[davis.shirley.complaint.amend]

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