Case 1:22-cv-02886-JLK Document 78 Filed 03/14/23 USDC Colorado Page 1 of 14

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Case No. 1:22-cv-02886-JLK

BRANDON PRYOR,

Plaintiff,

v.

SCHOOL DISTRICT NO. 1 d/b/a DENVER PUBLIC SCHOOLS;

SUPERINTENDENT ALEX MARRERO, in his individual and official capacities;
DEPUTY SUPERINTENDENT ANTHONY SMITH, in his individual and official capacities;
VICE PRESIDENT AUON’TAI ANDERSON, in his individual and official capacities;
GENERAL COUNSEL AARON THOMPSON, in his individual and official capacities,

Defendants.
______________________________________________________________________________

ORDER DENYING MOTION TO STAY (ECF NO. 46)

______________________________________________________________________________
Kane, J.

After extensive consideration—and a seven-day hearing, I issued a limited Preliminary

Injunction in this case. The Injunction is aimed at protecting Plaintiff Brandon Pryor’s First

Amendment free speech rights. It prohibits the enforcement of a letter endorsed by Defendants

Denver Public Schools (“DPS”), Superintendent Alex Marrero, and Deputy Superintendent

Anthony Smith (“Deputy Smith”) (collectively, “Defendants”)1 that restricted Mr. Pryor’s

relationship with DPS and his access to its facilities. The Injunction also prohibits retaliation by

Defendants because of Mr. Pryor’s pursuit of this lawsuit. Defendants have filed an appeal of my

Order granting the Preliminary Injunction. They now seek to stay enforcement of the Injunction

while their appeal is pending.

1
The other named Defendants were added with Mr. Pryor’s filing of his Amended Complaint
(ECF No. 76), after the Preliminary Injunction was issued.

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A motion to stay pending appeal is subject to the same standard as a request for a

preliminary injunction. See Warner v. Gross, 776 F.3d 721, 728 (10th Cir. 2015). That standard

involves four factors: “(1) whether the stay applicant has made a strong showing that he is likely

to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3)

whether issuance of the stay will substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009)

(quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). I applied those factors in my Order

granting the Preliminary Injunction (ECF No. 43), and I do again here, taking into account

Defendants’ criticisms of my previous analysis. While the burden rested with Mr. Pryor to show

the factors weighed in favor of issuing the Preliminary Injunction, it now lies with Defendants,

id. at 433-34.

Defendants’ Motion to Stay (ECF No. 46) does not persuade me to alter my previous

evaluation of the facts and applicable law. Their obtuse arguments show a complete failure to

comprehend my Order and a derogation of their responsibilities to the public and DPS staff. For

substantially the same reasons that I granted the Preliminary Injunction, I deny Defendants’

Motion to Stay.

1. Likelihood of Success on the Merits

The Preliminary Injunction relates to Mr. Pryor’s first claim2 in this case, which alleges

Defendants3 retaliated against him in violation of the First Amendment to the U.S. Constitution.

2
In Mr. Pryor’s Amended Complaint, his First Amendment retaliation claim is his third claim
for relief. See Am. Compl. at 36, ECF No. 76.
3
The claim in Mr. Pryor’s original Complaint was brought against Superintendent Marrero and
Deputy Smith in their individual and official capacities. See Compl. at 17. A suit against an
employee in his official capacity is “to be treated as a suit against the entity.” Kentucky v.

2
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See Compl. ¶¶ 78-81, ECF No. 1. Mr. Pryor claims Defendants improperly used his protected

speech, including his speech on Facebook, as a basis for placing restrictions on him. See id. ¶¶

62, 68-69. In my Order granting the Preliminary Injunction, I found Mr. Pryor was likely to

succeed on the merits of that claim and rejected Defendants’ arguments to the contrary.

Defendants now contend they are likely to succeed in their appeal of the Order granting the

Preliminary Injunction for two main reasons. First, they insist my assessment of the evidence

was improperly focused. Second, they claim the Preliminary Injunction is overly vague and

ambiguous. They are wrong in both respects.

Focus of the Analysis

In deciding whether to issue the Preliminary Injunction, Defendants urged me to apply

the test for First Amendment retaliation claims brought by government employees, which is

derived from Pickering v. Board of Education, 391 U.S. 563 (1968), and Garcetti v. Ceballos,

547 U.S. 410 (2006). Although Mr. Pryor is not a DPS employee, I applied that more stringent

standard when considering whether he was likely to succeed on the merits of his claim because a

preliminary injunction is an extraordinary remedy. See Order on Mot for Prelim. Inj. at 22, ECF

No. 43. The Garcetti/Pickering test requires consideration of:

(1) whether the [employee’s] speech was made pursuant to [his] official duties;
(2) whether the speech was on a matter of public concern; (3) whether the
government’s interests, as employer, in promoting the efficiency of the public
service are sufficient to outweigh the plaintiff's free speech interests; (4) whether
the protected speech was a motivating factor in the adverse employment action;
and (5) whether the defendant would have reached the same employment decision
in the absence of the protected conduct.

Rock v. Levinski, 791 F.3d 1215, 1219 (10th Cir. 2015) (citation omitted).

Graham, 473 U.S. 159, 166 (1985); see also Defs.’ Mot. to Dismiss at 18, ECF No. 18 (quoting
id.).

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Defendants claim I “inexplicably based [my] decision only on” the complaint of Neisa

Lynch, a DPS principal. Reply in Supp. of Mot. to Stay at 2, ECF No. 74. While my Order

granting the Preliminary Injunction focuses on Ms. Lynch’s complaint, it weighs all the evidence

presented, see Order on Mot for Prelim. Inj. at 2-18 (reviewing Mr. Pryor’s interactions with

DPS employees), and discusses in detail the reasons for centering the Order on Ms. Lynch’s

complaint, id. at 20, 22-30.

As the Order explained, DPS General Counsel Aaron Thompson authored the October

18, 2022 letter restricting Mr. Pryor (the “Thompson Letter”). Id. at 14. The Thompson Letter

listed Ms. Lynch’s complaint as the first justification for the action being taken, see id. at 15

(citing Thompson Letter at 2, Ex. 61), and at the hearing on the Preliminary Injunction, Mr.

Thompson testified that Ms. Lynch’s complaint was the “catalyst” for his letter. See id. at 20

(citing Thompson Testimony). The description of Ms. Lynch’s complaint in the Thompson

Letter includes 14 of Mr. Pryor’s Facebook posts from December 6, 2021, to September 28,

2022. Id. at 11-12 (listing Mr. Pryor’s Facebook posts relevant to Ms. Lynch’s complaint); id. at

15 (quoting Thompson Letter at 2-3). Thus, the evidence showed the restrictions placed on Mr.

Pryor were at least in part a result of Mr. Pryor’s speech on Facebook that formed the basis of

Ms. Lynch’s complaint.

Considering the evidence presented, the Order applied the Garcetti/Pickering test and

first found that the enumerated Facebook posts constituted protected speech on a matter of public

concern. Id. at 23-24. The Order resolved that Defendants had not shown Mr. Pryor’s interest in

that protected speech was outweighed by DPS’s interest as Ms. Lynch’s employer. Id. at 28.

Then, relying on Mr. Thompson’s testimony and the content of the Thompson Letter, the Order

determined Mr. Pryor’s protected speech was likely a motivating factor in Defendants’ decision

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to restrict him. Id. at 28. At the final step of the Garcetti/Pickering test, Defendants had the

opportunity to establish that they would have taken the same action against Mr. Pryor even in the

absence of his protected speech, but Defendants failed to make that showing. Id. at 29-30.4

Consequently, the Order concluded that the Thompson Letter was likely the result of improper

retaliation and, as such, that Defendants should be enjoined from enforcing it. Id. at 30-32.

In their Motion to Stay, Defendants seem to challenge the focus of my analysis at the

third and fifth steps of the Garcetti/Pickering test. I start with their arguments related to the fifth

step and their motivations for imposing restrictions on Mr. Pryor. Defendants emphasize that

they considered Mr. Pryor’s conduct “as a whole” and did not “decide to restrict [his] access to

District facilities based on any one complaint.” Mot. to Stay at 7. Mr. Pryor’s “whole” conduct

included his protected speech, which Defendants did not differentiate and instead used as

grounds for restricting him. The inquiry at the fifth step is not whether Defendants acted because

of Mr. Pryor’s speech alone; it is whether they “would have reached the same employment

decision in the absence of the protected conduct.” Rock, 791 F.3d at 1219 (citation omitted).

Defendants failed to establish that they would have, and their contentions now reinforce that

failure.

At the third step of the Garcetti/Pickering test, Defendants continue to argue that their

broad interest in protecting DPS employees outweighs Mr. Pryor’s interest. See, e.g., Mot. to

Stay at 1-2, 7, 12. But “the Pickering analysis ‘requires [the court] to ask whether [the employer]

has an efficiency interest which would justify it in restricting the particular speech at issue.’”

Thomas v. City of Blanchard, 548 F.3d 1317, 1327 (10th Cir. 2008) (quoting Cragg v.

Osawatomie, 143 F.3d 1343, 1346 (10th Cir. 1998)). Disregarding the standard, Defendants
4
Notably, I did not address the question of whether Defendants’ acts would have violated Mr.
Pryor’s rights had Ms. Lynch’s complaint not been the catalyst for the Thompson Letter, as those
were not the facts before me.

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discuss the parties’ general opposing interests rather than the specific ones at issue here. See,

e.g., Mot. to Stay at 7 (claiming Mr. Pryor’s conduct “shows [he] repeatedly bullied and harassed

DPS employees, and [they] properly restricted [his] access to DPS facilities to protect its

employees”). Defendants have not developed DPS’s specific need to control Mr. Pryor’s

Facebook posts set out in the Thompson Letter. See Thomas, 548 F.3d at 1327 (“For purposes of

the third prong, the question is . . . whether the government’s legitimate interests provide a

sufficient justification for controlling the plaintiff’s message.”).

Further displaying their misunderstanding of the Order, Defendants claim that I

concluded “a direct threat is required for DPS to restrict [Mr. Pryor’s] access to DPS facilities.”

Mot. to Stay at 7. Nowhere does the Order include such a requirement. In fact, I did not find that

the other complaints by DPS employees described in the Thompson Letter and by witnesses at

the Preliminary Injunction hearing would have been insufficient to justify placing some

restrictions on Mr. Pryor. I even questioned why Defendants did not enforce an earlier restriction

placed on him. See Order on Mot for Prelim. Inj. at 27.5

Defendants misinterpret the analysis and the standard and, consequently, their arguments

do not reveal any error in my Order. Defendants are correct that DPS has a legitimate interest in

protecting its employees from bullying and harassment, but that interest cannot extend to running

roughshod over the constitutional rights of an individual citizen.

5
I also acknowledged that constitutionally permissible restrictions might be based on other
grounds not involving a direct threat, including posting student photos online without
permission. See Order on Mot for Prelim. Inj. at 25 n.11.

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Vagueness or Ambiguity

Defendants also contend that the Preliminary Injunction is too vague and ambiguous to

stand. The limited Preliminary Injunction states:

Defendants Denver Public Schools, Superintendent Alex Marrero, and Deputy

Superintendent Anthony Smith and Defendants’ agents, servants, employees, and
attorneys and all others who are in active concert or participation with Defendants
are preliminarily ENJOINED from enforcing the terms of the letter written by
DPS General Counsel Aaron Thompson dated October 18, 2022, and are further
ENJOINED from taking any other retaliatory action against Mr. Pryor, his family,
or the STEAM Academy for pursuing this lawsuit.

Order on Mot for Prelim. Inj. at 33. The STEAM Academy is the DPS school of which Mr. Pryor

is a founder. In issuing the Preliminary Injunction, I specifically did not adopt all the conditions

proposed by Mr. Pryor, including that Defendants be enjoined from retaliating against “anyone

else involved . . . for advocating for free speech rights” and that they be enjoined from

“restraining, prohibiting, or suppressing Mr. Pryor or any other person within DPS from

exercising free speech.” Id. at 32-33; Proposed Prelim. Inj. at 2, ECF No. 4-1.

Nevertheless, Defendants claim the Preliminary Injunction is too vague because it is a

general injunction prohibiting retaliation and requires nothing more than that they obey the law.

Mot. to Stay at 10. They assert the Injunction “does not sufficiently apprise [them] what actions

are required and what actions are prohibited.” Mot. to Stay at 2, ECF No. 46. And they argue it

was error to include Mr. Pryor’s family and the STEAM Academy in the Injunction.

Federal Rule of Civil Procedure 65(d) demands that “[e]very order granting an injunction

and every restraining order must:

(A) state the reasons why it issued;

(B) state its terms specifically; and

(C) describe in reasonable detail—and not by referring to the complaint or other

document—the act or acts restrained or required.

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“The Rule was designed to prevent uncertainty and confusion on the part of those faced with

injunctive orders, and to avoid the possible founding of a contempt citation on a decree too

vague to be understood.” Reliance Ins. Co. v. Mast Const. Co., 159 F.3d 1311, 1316 (10th Cir.

1998) (quoting Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam)). “[A]n injunction

cannot be so general as to leave the [enjoined] party open to the hazard of conducting business in

the mistaken belief that it is not prohibited by the injunction and thus make [it] vulnerable to

prosecution for contempt.” Id. (internal quotation marks and citation omitted). Still, “Rule 65(d)

requires only that the enjoined conduct be described in reasonable, not excessive, detail—

particularly in cases like this when overly precise terms would permit the very conduct sought to

be enjoined.” Id. The terms of the injunction must also be read alongside the order granting it.

See id.

My Order clearly stated the reasons why the Preliminary Injunction was issued, and the

Injunction describes the impermissible conduct in reasonable detail. The Injunction prohibits

Defendants from enforcing the terms of the Thompson Letter. Read in light of the entire Order,

this means Defendants cannot carry out the Thompson Letter’s restrictions as long as the bans

are based on the protected speech described in the Order.6

The Preliminary Injunction also prohibits Defendants from retaliating against Mr. Pryor,

his family, or the STEAM Academy for his pursuit of this lawsuit. Defendants complain that

“the Order generally prohibits Defendants from retaliating against Plaintiff, something they are

already constitutionally required to refrain from doing.” Mot. to Stay at 2. I emphasize that the

6
The Preliminary Injunction prohibits enforcement of the terms of the Thompson Letter even
though some of the restrictions imposed by the Letter were later lifted. See Staten Response at 2,
Ex. 63. Defendants contend any reference to the restrictions that were lifted is moot. The
Preliminary Injunction’s reference to the Thompson Letter is proper. Defendants may not impose
the restrictions in the Thompson Letter based on the same illegitimate justification.

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Injunction does not forbid retaliation generally. It is specific to actions against Mr. Pryor, either

directly or through his family or the STEAM Academy, and pertains only to retaliation that is

based on Mr. Pryor’s pursuit of this lawsuit.7

Defendants nonetheless contend the Preliminary Injunction’s ambiguity forces them to

speculate. Mot. to Stay at 10. Thoughtful consideration, not speculation, is required. The

Preliminary Injunction and the Order granting it provide sufficient boundaries for Defendants to

ascertain what conduct is prohibited. They do not offer guidance on every scenario Defendants

may encounter—nor could they. Defendants simultaneously assert both that more direction is

needed from the Court, see, e.g., Mot. at 6, and that the Court is “ill-equipped to evaluate the

considerations DPS must assess in making . . . operational decisions,” Reply in Supp. of Mot. to

Stay at 13. These competing arguments illustrate why comprehensive guidance is unfeasible.

Defendants’ attention should be directed at their motivations for acting: Is one of their reasons

for acting that Mr. Pryor has filed this suit? Would they take the same action without that

impetus?

As an example, Defendants filed a Supplement to their Motion to Stay describing an

incident between Mr. Pryor and a DPS Board Member that took place after the Preliminary

Injunction was issued. Defendants assert that the incident supports a stay because (1) “DPS

need[s] to be able to address [Mr. Pryor’s] clearly inappropriate conduct”; (2) “the events . . .

further establish [Mr. Pryor’s] pattern of misconduct and the reasonableness of DPS’ restrictions

on [his] access to DPS facilities to protect the safety of DPS officials, employees, staff and

community”; and (3) the incident demonstrates the lack of specificity concerning prohibited acts

under th[e] Court’s Order.” Suppl. to Mot. to Stay at 5, ECF No. 66. First, the Board Member,
7
Defendants complain that no definition of retaliation is provided. See Mot. to Stay at 16. There
is a plain and obvious meaning of that term that Defendants’ team of qualified attorneys can
surely decipher. See Retaliation, Black’s Law Dictionary (11th ed. 2019).

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with the assistance of DPS, was able to address Mr. Pryor’s conduct through protection order

proceedings. Second, the incident does not appear to have taken place on DPS property, so the

restrictions DPS previously imposed on Mr. Pryor would not have prevented the interaction.

And, third, the incident does not expose any deficiency in the Order granting the Preliminary

Injunction. Unless the Board Member or anyone else involved acted in active concert or

participation with Defendants to adversely impact Mr. Pryor because of his pursuit of this

lawsuit, the Injunction is not applicable to the incident.

Defendants also take issue with the Preliminary Injunction’s inclusion of Mr. Pryor’s

family and the STEAM Academy. They contend they “have no way to predict what actions

directed at the STEAM Academy the Court will deem retaliatory.” Mot. to Stay at 17; see also

Reply in Supp. of Mot. to Stay at 13. Defendants pose the questions: “[D]oes the discipline of a

STEAM Academy student potentially implicate Defendants under this Order? Or the discipline

of a teacher or other employee of the STEAM Academy? Or a restriction on access of a STEAM

Academy parent?” Mot. to Stay at 11. From the face of the Preliminary Injunction, it is clear that

the answer to these questions could only be “yes” if Defendants’ purpose in taking the action was

to cause harm in return for Mr. Pryor pursuing this lawsuit. Why Defendants would discipline a

student or employee or restrict the access of a STEAM Academy parent for that reason is

puzzling. Again, the focus of Defendants’ concern should be on their motivations.

Despite Defendants’ professed confusion, the Preliminary Injunction describes the

enjoined conduct in reasonable detail. Future disputes regarding the legality of Defendants’

actions toward Mr. Pryor may arise, but I will not adjudicate them before they do. Ultimately,

Defendants’ criticisms of my Order granting the Preliminary Injunction have failed to persuade

me that they are likely to succeed in challenging it on appeal.

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2. Irreparable Harm to Defendants

Defendants claim that, because of the ambiguity of the Preliminary Injunction, they are

unable to protect DPS employees and govern the District, which causes them significant harm.

Mot. to Stay at 2. They assert that the Injunction “creates an irreparable injury to [them] by

hamstringing DPS’[s] ability to preserve and promote a safe working environment.” Reply in

Supp. of Mot. to Stay at 14.

As the Order granting the Preliminary Injunction stressed and I have just explained, the

Preliminary Injunction does not hamstring DPS. Defendants may still act to legitimately protect

DPS employees, students, and community members. Defendants maintain that, “in this day of

school shootings, bomb threats and disruption of school facilities throughout the United States,

DPS must be able to determine appropriate rules for access to schools and other District

facilities.” Mot. to Stay at 19. Nothing in the Order or the Preliminary Injunction should hinder

DPS’s ability to “determine appropriate rules.”

Defendants fear that Mr. Pryor will challenge their every act as retaliatory. See Mot. to

Stay at 11, 14. They claim they “are left in a proverbial Catch 22” where either their employees

are at risk or they act and Mr. Pryor alleges retaliation. Id. at 11. Their speculation takes them too

far. There is no indication Mr. Pryor will baselessly allege a violation of the Preliminary

Injunction. And, even without the Preliminary Injunction, Mr. Pryor could claim additional

retaliation. See, e.g., Amended Compl. ¶¶ 111-129, (including additional allegations).

If Defendants exercise the requisite thoughtful consideration, no irreparable harm to

Defendants should result from the limited Preliminary Injunction.

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3. Harm to Plaintiff

As for the harm a stay would cause Mr. Pryor, Defendants assert “there is no evidence

[he] will suffer any harm during the pendency of the appeal.” Mot. to Stay at 19. However, I

have found Mr. Pryor is likely to succeed on his First Amendment retaliation claim and that

enforcing the terms of the Thompson Letter would continually impede his First Amendment

freedoms. See Order on Mot. for Prelim. Inj. at 30-31. Permitting enforcement of the Thompson

Letter would, therefore, constitute substantial injury to Mr. Pryor.

In his Response to Defendants’ Motion to Stay, Mr. Pryor lists beneficial community

engagement that he has been able to take part in because of the Preliminary Injunction.

Defendants claim Mr. Pryor was allowed to perform almost all these activities after DPS lifted

some of the restrictions in the Thompson Letter, which occurred before the Preliminary

Injunction was issued. Reply in Supp. of Mot. to Stay at 15. Defendants are mistaken about the

restrictions on Mr. Pryor that remained in place. DPS’s letter reversing some of the restrictions

explicitly states:

Mr. Pryor remains prohibited from entering or remaining on any District property
including but not limited to: Robert F. Smith STEAM Academy . . . and is further
prohibited from volunteering or otherwise participating at any District athletic
programs . . . . Mr. Pryor remains able to attend events that are otherwise open to
the general public including athletics events and any activities or events
concerning his children and their educational programming.

Staten Response at 2; Order on Mot. for Prelim. Inj. at 16-17. These remaining restrictions

seemingly would have applied to all the activities listed by Mr. Pryor. See Resp. to Mot. to Stay

at 15-16 (e.g., “[being] present nearly every day at the STEAM Academy to assist with

operations and to build with students and staff” and “[attending] meetings at [a] school campus

in Far Northeast Denver to participate in meeting[s] with [the] football team and parents”). Thus,

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before the Preliminary Injunction was issued, Mr. Pryor was prevented from engaging the DPS

community in the ways he describes.

Defendants also contend that the Preliminary Injunction is not necessary to prevent harm

to Mr. Pryor because the Constitution adequately protects him from “acts of future retaliation.”

Mot. to Stay at 20. I assume this argument relates to the Injunction’s provision on retaliation for

Mr. Pryor’s pursuit of this lawsuit. While the Preliminary Injunction does not presume

Defendants will take unconstitutional retaliatory measures, Defendants’ past conduct has caused

me to question their ability to abide by their constitutional obligations. Defendants invite me to

disregard my conclusions on the merits of Mr. Pryor’s retaliation claim and to trust they will not

attempt to stifle his protected speech going forward. I decline this invitation.

4. Public Interest

Defendants insist, on the other hand, that a stay of the Preliminary Injunction is necessary

to prevent harm to the public interest. They contend the Preliminary Injunction “prevents

Defendants from creating, or hinders [their] ability to create, a safe and welcoming environment

for staff and employees.” Mot. to Stay at 20-21. Contrary to Defendants’ assertions, though, the

Preliminary Injunction does not “limit[] the actions Defendants can take in response to threats.”

Id.

Defendants also suggest the Preliminary Injunction “will encourage and embolden other

community members critical of DPS or the current DPS administration to threaten, intimidate,

harass, and bully DPS staff and employees and to interfere with DPS administration and

operations in an effort to gain attention for their own agendas.” Id. at 21. They do not tie this

supposition to any facts, and thus it is not a proper basis for granting a stay.

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Lastly, Defendants claim the Preliminary Injunction “places [them] in the position of

preferencing the interests of Plaintiff, who is not a DPS student or employee, over the interests of

other students, employees, staff, and community members to avoid litigation and potential

sanctions.” Id. This argument is incongruous. Defendants are “placed in the position of”

respecting the rights of DPS students, employees, and community members, including Mr. Pryor.

I previously found that the Preliminary Injunction serves the public interest, see Order on Mot

for Prelim. Inj. at 32, and Defendants have failed to demonstrate otherwise.

Conclusion

Because Defendants have not shown that any of the relevant factors tilt in their favor,

their Motion to Stay Pending Appeal of Court’s Order on Plaintiff’s Motion for Preliminary

Injunction (ECF No. 46) is DENIED. Defendants’ attempts to portray themselves as victims are

negated by the thoughtlessness of their censorious behavior. A preliminary injunction is not

meant to be a primer enabling enjoined parties to divest responsibility. The one in this case

protects Mr. Pryor, while giving fair notice to Defendants of the prohibited conduct.

DATED this 14th day of March, 2023.

______________________________
JOHN L. KANE
SENIOR U.S. DISTRICT JUDGE

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