      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2    Neinast v. Bd. of Trs. of the                No. 02-3482
   ELECTRONIC CITATION: 2003 FED App. 0363P (6th Cir.)        Columbus Metro. Library et al.
               File Name: 03a0363p.06
                                                                             _________________
UNITED STATES COURT OF APPEALS                                                    COUNSEL
             FOR THE SIXTH CIRCUIT                       ON BRIEF: Philomena M. Dane, Johnathan E. Sullivan,
               _________________                         SQUIRE, SANDERS & DEMPSEY, Columbus, Ohio, for
                                                         Appellees. Robert A. Neinast, Pickerington, Ohio, pro se.
ROBERT A. NEINAST ,              X
         Plaintiff-Appellant,     -                                          _________________
                                  -
                                  -  No. 02-3482                                 OPINION
          v.                      -                                          _________________
                                   >
                                  ,                        JULIA SMITH GIBBONS, Circuit Judge. Robert A.
BOARD OF TRUSTEES OF THE          -
COLUMBUS METROPOLITAN                                    Neinast, a patron of the Columbus Metropolitan Library
                                  -                      (Library) was evicted from the Library as a result of going
LIBRARY; LARRY D. BLACK;          -                      barefoot. Neinast brought suit against the Board of Trustees
VONZELL L. JOHNSON,               -                      of the Columbus Metropolitan Library (Board) and others
       Defendants-Appellees. -                           under 42 U.S.C. § 1983, claiming violations of his rights
                                  -                      under the First, Ninth, and Fourteenth Amendments of the
                                 N                       United States Constitution, Article I of the Ohio Constitution,
     Appeal from the United States District Court        and Ohio Revised Code § 3375.40. All parties moved for
    for the Southern District of Ohio at Columbus.       summary judgment. The district court granted summary
  No. 01-00443—Algenon L. Marbley, District Judge.       judgment in favor of defendants-appellees. For the reasons
                                                         set forth below, we affirm the judgment of the district court.
              Submitted: August 1, 2003
                                                                                        I.
        Decided and Filed: October 10, 2003
                                                           Plaintiff-appellant Neinast, a resident of Pickerington,
Before: KENNEDY, GILMAN, and GIBBONS, Circuit            Ohio, regularly goes barefoot and often uses the Library.
                   Judges.                               Defendant-appellee Board serves as the regulating authority
                                                         of the Library and is authorized by Ohio Revised Code
                                                         § 3375.40 to “[m]ake and publish rules for the proper
                                                         operation and management of the free public library and
                                                         facilities under its jurisdiction, including rules pertaining to
                                                         the provision of library services to individuals, corporations,
                                                         or institutions that are not inhabitants of the county.”
                                                         Defendant-appellee Larry D. Black is the Executive Director

                           1
No. 02-3482                 Neinast v. Bd. of Trs. of the        3    4     Neinast v. Bd. of Trs. of the                No. 02-3482
                         Columbus Metro. Library et al.                     Columbus Metro. Library et al.

of the Library, and defendant-appellee Vonzell Johnson is the            On January 19, 2001, Neinast wrote another letter
Assistant Manager of Security for the Library. Although the           expressing his concerns about the prohibition on using the
Patron Regulations of the Library (approved by the Board) do          Library without shoes, and on January 30, 2001, Black asked
not contain a prohibition on using the Library without shoes,         the Franklin County Prosecutor’s Office “for the legal reasons
the Library’s Eviction Procedure (approved by the Executive           that [the Board] can give for requiring its customers to dress
Director) does provide that patrons not wearing shoes be              appropriately for a public place.” In a letter dated February
given a warning and be “asked to leave [the] premises to              7, 2001, the prosecutor’s office responded that in accordance
correct the problem.”                                                 with Kreimer v. Bureau of Police of Morristown, 958 F.2d
                                                                      1242 (3d Cir. 1992), “the Library may implement reasonable
  On several different occasions between 1997 and 2001,               rules for the operation of the Library or the conduct of Library
Neinast was asked to leave the Library for failure to comply          business, including a requirement that patrons wear shoes
with the Library’s requirement that patrons wear shoes while          while in the library.”
on its premises. Neinast first was asked to leave the Library
for not wearing shoes on September 12, 1997. On November                On March 5, 2001, following his one-day eviction from the
10, 2000, Neinast again was informed that he would have to            Library on March 2, 2001, Neinast sent another letter to
wear shoes in order to use the Library’s facilities and was           Black, the Board, and the prosecutor’s office. On March 12,
asked to leave. On January 23, 2001, Neinast was asked to             2001, Black informed Neinast that he had “been made aware
leave for the same reason. On March 2, 2001, Neinast again            that we require our customers to wear shoes while using the
entered the Library barefoot, and subsequently was                    Columbus Metropolitan Library facilities” and that he had
approached by two security officers and taken to the security         been “provided a legal opinion . . . stating that the Library has
desk, where one of the officers, acting under the supervision         the legal authority to make and enforce such a rule,” and
of Johnson, presented Neinast with a one-day eviction from            concluding that the Library “will not respond to further
the Library.                                                          correspondence on this matter.”
   After being asked to leave on November 10, 2000, Neinast              On April 3, 2001, Neinast, acting pro se, filed a complaint
wrote a letter to Black dated November 16, 2000, and a letter         in the Franklin County Court of Common Pleas alleging
to the Board dated December 11, 2000, complaining of the              violations of 42 U.S.C. § 1983 based on deprivations of his
enforcement of the Eviction Procedure and the procedure’s             First, Ninth, and Fourteenth Amendment rights under the
alleged inconsistency with the Patron Regulations. In a               United States Constitution and his rights under Article I of the
response dated December 14, 2000, the Board informed                  Ohio Constitution. Defendants-appellees removed this case
Neinast that Black had “the authority to make such decisions”         to the United States District Court for the Southern District of
and that the Board believed that Black “had made the correct          Ohio on May 11, 2001 and filed an answer on May 24, 2001.
one.” According to the Library Organization Policy, Black             Neinast filed an amended complaint on June 27, 2001. On
(as the Executive Director) is responsible for “determining           July 9, 2001, defendants-appellees filed an answer to the
internal policies and procedures, . . . public relations, relations   amended complaint. Both parties then filed motions for
with the community and governmental agencies, and the                 summary judgment. On March 27, 2002, the district court
handling of all other matters involved with the operation of          granted summary judgment in favor of defendants-appellees.
the library system.”                                                  Neinast timely filed his notice of appeal on April 25, 2002.
No. 02-3482                     Neinast v. Bd. of Trs. of the              5    6     Neinast v. Bd. of Trs. of the               No. 02-3482
                             Columbus Metro. Library et al.                           Columbus Metro. Library et al.

                                    II.                                         Neinast had a First Amendment right of access to the Library,
                                                                                but rejected his claim, finding the Board’s requirement that
   A district court’s grant of a motion for summary judgment                    patrons of the Library wear shoes to be “a valid, content-
is reviewed de novo. See Braithwaite v. The Timken Co., 258                     neutral regulation that promotes communication of the written
F.3d 488 (6th Cir. 2001). Where the parties have filed cross-                   word in a safe and sanitary condition.” Neinast v. Bd. of Trs.
motions for summary judgment, this court “evaluate[s] each                      of Columbus Metro. Library, 190 F.Supp.2d 1040, 1044
motion on its own merits and view[s] all facts and inferences                   (S.D.Ohio 2002). The district court concluded that “to the
in the light most favorable to the nonmoving party.” Wiley v.                   extent that it limits Plaintiff’s right of access to speech, the
United States, 20 F.3d 222, 224 (6th Cir. 1994). However, an                    Library’s shoe regulation satisfies this intermediate scrutiny.”
opponent of a motion for summary judgment “may not rest                         Id. Neinast now argues that the presence of feces, semen,
upon mere allegations or denials of his pleading, but . . . must                blood, and broken glass in or around the library system, as
set forth specific facts showing that there is a genuine issue                  established by incident reports, fails to represent any danger
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248                  to barefooted patrons. Neinast asserts that “the shoe policy is
(1986). The party opposing the motion must “do more than                        substantially broader than necessary, even if one assumes that
simply show that there is some metaphysical doubt as to the                     the Library’s incidents constitute hazards to barefooted
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio                    persons.” Neinast also claims that the Board’s claim of a
Corp., 475 U.S. 574, 586 (1986). “If after reviewing the                        substantial governmental interest in public safety represents
record as a whole a rational factfinder could not find for the                  “an expansion of the police power beyond its traditional
nonmoving party, summary judgment is appropriate.”                              boundaries.”
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,
349 (6th Cir. 1998) (citing Matsushita, 475 U.S. at 587).                          The First Amendment protects the right to receive
                                                                                information. Stanley v. Georgia, 394 U.S. 557, 564 (1969)
                                    A.                                          (“It is now well established that the Constitution protects the
                                                                                right to receive information and ideas.”). This right to receive
  Neinast claims that the Board’s enforcement of the                            information “includes the right to some level of access to a
requirement that patrons of the Library wear shoes deprived                     public library, the quintessential locus of the receipt of
him of his right to receive information under the First and                     information.” Kreimer v. Bureau of Police for the Town of
Fourteenth Amendments.1 The district court assumed that                         Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992); see also
                                                                                Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577, 582
                                                                                (6th Cir. 1976) (“A library is a mighty resource in the free
    1
      At the district court level, Neinast also asserted that walking
                                                                                marketplace of ideas.”); Armstrong v. Dist. of Columbia Pub.
barefoot constituted speech protected by the First Amendment, that the          Library, 154 F.Supp.2d 67, 75 (D.D.C. 2001) (noting the
shoe regulation violates his equal protection rights, and that the individual   existence of “long-standing precedent supporting plaintiff’s
defendants were not entitled to qualified immunity. The district court          First Amendment right to receive information and ideas, and
found that Neinast’s practice of going barefoot in public buildings did not     this right’s nexus with access to public libraries”).
qualify as symbolic speech, that his equal protection rights had not been
violated, and that the individual defendants were shielded from liability.
See Nein ast v. B d. of Trs. of Columbus M etro. Library, 190 F.Supp.2d
1044-46, 1048-49 (S.D.Ohio 2002). On appeal, Neinast does not                   challenge these conc lusions.
No. 02-3482                Neinast v. Bd. of Trs. of the      7    8     Neinast v. Bd. of Trs. of the                No. 02-3482
                        Columbus Metro. Library et al.                   Columbus Metro. Library et al.

   For the purposes of First Amendment analysis, the Library       summarized their purpose as “insur[ing] appropriate sound
is a limited public forum. Kreimer, 958 F.2d at 1259; Sund         quality balanced with respect for nearby residential neighbors
v. City of Wichita Falls, Texas, 121 F.Supp.2d 530, 548            and the mayorally decreed quiet zone of Sheep Meadow.” Id.
(N.D.Tex. 2000); Mainstream Loudon v. Bd. of Trs. of               The Ward guidelines regulation, albeit content-neutral,
Loudon County Library, 24 F.Supp.2d 552, 563 (E.D.Va.              restricted the volume of speech, and in so doing, had a direct
1998). As such, the Library “is obligated only to permit the       impact on speech. While the Library regulation at issue in
public to exercise rights that are consistent with the nature of   this case is also content-neutral, it does not directly impact the
the Library and consistent with the government’s intent in         right to receive information. Therefore, applying the
designating the Library as a public forum.” Kreimer, 958           heightened scrutiny standard of Ward to the Library
F.2d at 1262. Traditionally, libraries provide a place for         regulation is not appropriate.
“reading, writing, and quiet contemplation.” Id. at 1261. Not
all aspects of a library involve the right to receive                Instead we review the Library regulation under a rational
information, however. For example, a library that consisted        basis standard. See Thompson v. Ashe, 250 F.3d 399, 407
of a card catalog, a circulation desk, and closed stacks would     (6th Cir. 2001) (holding that where there has been no
be perfectly capable of allowing patrons to exercise their right   infringement of a fundamental right, review under a rational
to receive information, but would not be a place where             basis standard is appropriate); Memphis Am. Fed’n of
patrons could read, write, and quietly contemplate.                Teachers, Local 2032 v. Bd. of Ed. of Memphis City Sch., 534
                                                                   F.2d 699, 703 (6th Cir. 1976) (same). “The rational basis test
   As previously noted, the requirement for our consideration      requires the court to ensure that the government has employed
provides for the denial of access to the Library based upon a      rational means to further its legitimate interest.” Peoples
patron’s failure to wear shoes. In Ward v. Rock Against            Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 532 (6th
Racism, the United States Supreme Court reviewed a                 Cir. 1998). Moreover, “[u]nder the rational basis review, a
regulation in which the government “regulate[d] expression”        court usually will uphold regulations because ‘the state’s
according to a heightened standard of scrutiny. 491 U.S. 781,      important regulatory interests are generally sufficient to
791 (1989). Moreover, the Court held that “the government          justify them.’” Citizens for Legislative Choice v. Miller, 144
may impose reasonable restrictions on the time, place, or          F.3d 916, 921 (6th Cir. 1998) (quoting Anderson v.
manner of protected speech, provided the restrictions ‘are         Celebrezze, 460 U.S. 780, 788 (1983)). The Library
justified without reference to the content of the regulated        regulation survives rational basis review because the
speech, that they are narrowly tailored to serve a significant     regulation provides a rational means to further the legitimate
governmental interest, and that they leave open ample              government interests of protecting public health and safety
alternative channels for communication of the information.’”       and protecting the Library’s economic well-being by seeking
Id. (quoting Clark v. Community for Creative Non-Violence,         to prevent tort claims brought by library patrons who were
468 U.S. 288, 293 (1984)).                                         injured because they were barefoot.
  In Ward, the Court reviewed use guidelines promulgated by                                       B.
the City of New York that only the City could provide sound
equipment and sound technicians for performances given at            Even if we were to conclude that heightened scrutiny is
the Central Park Bandshell. Id. at 788. The guidelines             appropriate in the instant case, we believe that the Library
No. 02-3482                Neinast v. Bd. of Trs. of the       9    10   Neinast v. Bd. of Trs. of the                  No. 02-3482
                        Columbus Metro. Library et al.                   Columbus Metro. Library et al.

regulation would meet this standard. The requirement that             actually disrupt the Library. . . . Indeed, the district court
patrons of the Library wear shoes is “narrowly tailored to            itself implicitly acknowledged this point when it
serve a significant governmental interest” and “leave[s] open         modified its order so that it did not invalidate the rule
ample alternative channels for communication of                       requiring the wearing of shoes, since it can hardly be
information.” Ward, 491 U.S. at 791.                                  imagined that a person simply by being barefoot would
                                                                      disrupt the Library.
   In Kreimer, a homeless man challenged several public
library rules regulating patron behavior, one of which              Id. at 1263 n.25.
provided that:
                                                                       In this case, Neinast argues that he was “using the Library
  Patrons shall not be permitted to enter the building              for its intended purpose when he was asked to leave, and that
  without a shirt or other covering of their upper bodies or        his bare feet did not disrupt the library.” As the Third Circuit
  without shoes or other footwear. Patrons whose bodily             observed in Kreimer, however, “the Library is not confined to
  hygiene is offensive so as to constitute a nuisance to            prohibiting behavior that is actually disruptive.” 958 F.2d at
  other persons shall be required to leave the building.            1264 n.28. Here, according to the Board, the requirement that
                                                                    patrons of the Library wear shoes was promulgated “in order
958 F.2d at 1248. The district court found the rule to be “null     to protect the safety of Library patrons from documented
and void on [its] face” and enjoined the Library from               hazards within the Library – including blood, feces, semen
enforcing the rule, but later modified its order, explaining        and broken glass that have, on occasion, been found there.”
“that it was not invalidating the rule[] to the extent that [it]    Specifically, in an affidavit dated August 2, 2001, Black
required the wearing of shoes or shirts.” Id. at 1250. The          stated that he approved the requirement that patrons of the
Library appealed, and the Third Circuit reversed the district       Library wear shoes in order to protect “the health and safety
court. The court noted that the Library “has a significant          of Library patrons, who may be harmed in the Library if
interest in ensuring that ‘all patrons of the [Library] [can] use   allowed to enter barefoot” and “the economic well-being of
its facilities to the maximum extent possible during its            the Library, by averting tort claims and litigation expenses
regularly scheduled hours.’” Id. at 1264 (emphasis in               stemming from potential claims made by barefoot patrons
original). The court explained that the invalidated portion of      who could have suffered injuries that shoes could have
the rule “prohibits one patron from unreasonably interfering
with other patrons’ use and enjoyment of the Library” and
“further promotes the Library’s interest in maintaining its
facilities in a sanitary and attractive condition.” Id. In dicta,
the court added that the Library’s rules need not “condition
exclusion upon actual or imminent disruption.” Id. The court
also suggested that the portion of the rule requiring patrons to
wear shoes would pass constitutional muster:
  [I]t seems obvious that the Library may regulate conduct
  protected under the First Amendment which does not
No. 02-3482                      Neinast v. Bd. of Trs. of the             11     12    Neinast v. Bd. of Trs. of the                No. 02-3482
                              Columbus Metro. Library et al.                            Columbus Metro. Library et al.

prevented.”2    These concerns qualify as significant                             on the floor of the reading area (JA 161, 165, 168, 176, 266,
governmental interests.                                                           276, 291), and broken glass in the lobby (JA 185). The Board
                                                                                  also has submitted reports describing incidents where a patron
   “Throughout our history the several States have exercised                      scraped his arm on a staple in the carpet in the meeting room,
their police powers to protect the health and safety of their                     causing bleeding (JA 260), where a patron’s foot went into a
citizens. Because these are primarily, and historically, . . .                    gap between the bottom of a door and the ground, causing a
matter[s] of local concern, the States traditionally have had                     cut (JA 297), and where a barefoot patron’s toe was caught in
great latitude under their police powers to legislate as to the                   a door, causing bleeding and requiring the assistance of
protection of the lives, limbs, health, comfort, and quiet of all                 paramedics (JA 301). The Board thus has demonstrated the
persons.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996)                       existence of a significant health and safety risk to individual
(quotations and citations omitted). Here, the Board has                           barefoot patrons.
provided incident reports documenting various hazards to
barefoot patrons, including the presence of feces on the floor                       Having established the existence of a significant risk of
of the restroom and in the reading area (JA 133, 153, 163,                        harm to individual barefoot patrons, this court next must
176, 197, 212, 250, 252, 254, 256, 257), vomit on the floor of                    determine whether a significant cost to the general public also
the restroom and in the children’s area (JA 170, 224), broken                     has been shown. “To justify the state in . . . interposing its
ceiling tiles on the floor of the restroom (JA 134), splintered                   authority in behalf of the public, it must appear – First, that
chair pieces in the children’s area (JA 140), drops of blood on                   the interests of the public . . . require such interference; and,
the floor of the restroom (JA 184), urine in the elevator, on                     second, that the means are reasonably necessary for the
the floor of the bathroom, on a chair in the reading area, and                    accomplishment of the purpose, and not unduly oppressive
                                                                                  upon individuals.’” Fair Hous. Advocates Ass’n, Inc. v. City
                                                                                  of Richmond Heights, Ohio, 209 F.3d 626, 643 (6th Cir.
    2
      Neinast argues that the Board’s stated interests are not genuine and        2000) (quoting Lawton v. Steele, 152 U.S. 133, 137 (1894)).
notes that the Eviction Guidelines refer only to “[i]nappropriate dress,”         Courts consistently have upheld statutes primarily directed at
while making no m ention of health and safety or economic well-being.             preventing injury to an individual on the basis of the impact
There is some evidence in the record suggesting that the Board had an
interest in requiring pro per attire. As previously mentio ned, in a letter to
                                                                                  upon the general public. See, e.g., Picou v. Gillum, 874 F.2d
the Franklin County Prosecutor’s Office dated January 30, 2001, Black             1519, 1522 (11th Cir. 1989) (noting that although the
requested “the legal reasons that [the Library] can give for requiring its        “primary aim” of a state statute requiring motorcycle riders to
customers to dress appropriately for a public place.” As the Supreme              wear protective headgear “is prevention of unnecessary injury
Court has noted, in the intermediate scrutiny context the state is expected       to the cyclist himself,” the “costs of this injury may be borne
“to give its real reasons for passing an ordinance.” Watchtower Bible and         by the public”).
Tract Soc’y of New York, Inc. v. Vill. of Stratton, 536 U.S. 150, 170
(2002) (Breyer, J., concurring). However, the Court also explained that
the state may “rely on the rationale in the courts below,” as long as the            Here, the Board’s stated rationale for its requirement that
reviewing court itself “does not supply reasons.” Id. at 169-70. In this          patrons of the Library wear shoes is not only to protect
case, the interests advanced by the Bo ard in the district court and on           individual barefoot patrons from harm to themselves, but also
appeal are reflected in Black’s affidavit. Neither the d istrict court nor this   to protect the general public “by averting tort claims and
court manu factured these reasons. Consequently, consideration of the
Bo ard’s stated interests in health and safety and econ omic well-being is
                                                                                  litigation expenses stemming from potential claims by
appropriate.                                                                      barefoot patrons who could have suffered injuries that shoes
No. 02-3482                 Neinast v. Bd. of Trs. of the       13    14   Neinast v. Bd. of Trs. of the                No. 02-3482
                         Columbus Metro. Library et al.                    Columbus Metro. Library et al.

could have prevented.” Avoiding the expense of litigation is          occasion feces was found among the books (JA 212), that on
a legitimate governmental interest. See Listle v. Milwaukee           one occasion vomit was found in the children’s area (JA 224),
County, 138 F.3d 1155, 1160 (7th Cir. 1998). Injuries                 that on one occasion splintered pieces of a chair were found
suffered by individual barefoot patrons of the Library also           in the children’s area (JA 140), that on three occasions urine
impose broader societal costs. In this case, the Board has            was found in the elevator and in the reading area (JA 161,
presented evidence that on at least one occasion paramedics           266, 291), that on one occasion broken glass was found in the
were summoned to assist a barefoot patron who suffered an             lobby (JA 185), and that on one occasion a staple was found
injury to her feet while in the Library. Describing the costs         in the carpet of the reading room (JA 260). In light of the fact
borne by the general public as a result of the failure of             that the Board has documented the presence of hazards
motorcyclists to wear helmets, the Eleventh Circuit explained         throughout the Library buildings, we find the requirement that
that “[s]tate and local governments provide police and                patrons wear shoes to be narrowly tailored.
ambulance services, and the injured cyclist may be
hospitalized at public expense.” Picou, 874 F.2d at 1522.               Finally, the requirement that patrons wear shoes leaves
Similarly, in this case barefoot patrons of the Library who are       open alternative channels for communication. “[S]o long as
injured as a result of the hazards previously described impose        a patron complies with the rules, he or she may use the
costs on the general public. For these reasons, we conclude           Library’s facilities.” Kreimer, 958 F.2d at 1264. In this case,
that the Board has demonstrated a significant governmental            as long as Neinast wears shoes, he may receive information
interest in requiring that patrons of the Library wear shoes.         in the Library. Consequently, Neinast may be prohibited
                                                                      from going barefoot while in the limited public forum of the
   In addition, the Board’s requirement that patrons of the           Library.
Library wear shoes is sufficiently narrow. In order to satisfy
the “narrowly tailored” requirement, a regulation “need not be                                      C.
the least restrictive or least intrusive means” of serving the
government’s legitimate, content-neutral interests. Ward, 491            Neinast asserts that the Board’s enforcement of the
U.S. at 798. All that is required is “a fit that is not necessarily   requirement that patrons of the Library wear shoes deprived
perfect, but reasonable; that represents not necessarily the          him of his right of personal appearance under the First, Ninth,
single best disposition but one whose scope is in proportion          and Fourteenth Amendments. Specifically, Neinast argues
to the interest served.” Bd. of Trs. of State Univ. of New York       that the district court erred by failing “to recognize, as a
v. Fox, 492 U.S. 469, 480 (1989) (quotation omitted).                 matter of law, the existence of the right of personal
Neinast argues that the requirement that patrons of the Library       appearance, either as a fundamental right or as a protected
wear shoes is not narrowly tailored because although the              liberty interest.” Neinast claims that while rational basis
documented hazards occurred “almost exclusively in the                review may be appropriate in situations involving government
restrooms or outside the Library building,” the challenged            employees, the instant case requires strict scrutiny, since it
provision requires that patrons wear shoes “everywhere in the         involves “a member of the general public.”
Library buildings, even amongst the books.” Close scrutiny
of the record, however, reveals that hazards to barefoot                In Kelley v. Johnson, 425 U.S. 238 (1976), the Supreme
patrons can be found throughout the Library buildings.                Court observed that “whether the citizenry at large has some
Specifically, the Board has provided evidence that on one             sort of ‘liberty’ interest within the Fourteenth Amendment in
No. 02-3482                Neinast v. Bd. of Trs. of the      15    16   Neinast v. Bd. of Trs. of the              No. 02-3482
                        Columbus Metro. Library et al.                   Columbus Metro. Library et al.

matters of personal appearance is a question on which this          Peotone, 903 F.2d 510, 514 (7th Cir. 1990) (reviewing village
Court’s cases offer little, if any, guidance.” Kelley, 425 U.S.     regulation prohibiting off duty police officers from wearing
at 244. Although the Court went on to assume, for the               ear studs under rational basis test).
purposes of the case, that a liberty interest existed, it did not
affirmatively acknowledge such an interest. Id. However, a             “Even foolish and misdirected provisions are generally
considerable body of precedent suggests the existence of a          valid if subject only to rational basis review.” Craigmiles v.
liberty interest in one’s personal appearance.                      Giles, 312 F.3d 220, 223-24 (6th Cir. 2002). Consequently,
                                                                    this court will not overturn the Board’s requirement that
   In general, “[l]iberty under law extends to the full range of    patrons of the Library wear shoes unless the varying treatment
conduct which the individual is free to pursue.” Bolling v.         of barefoot persons “is so unrelated to the achievement of any
Sharpe, 347 U.S. 497, 499 (1954); see also Poe v. Ullman,           combination of legitimate purposes that we can only conclude
367 U.S. 497, 543 (1961) (Harlan, J., dissenting) (describing       that the [Board’s] actions were irrational.” Kimel v. Florida
liberty as “a rational continuum which, broadly speaking,           Bd. of Regents, 528 U.S. 62, 84 (2000) (quotation omitted).
includes a freedom from all substantial arbitrary impositions       In order to prevail, Neinast must negate “every conceivable
and purposeless restraints”). Other circuits specifically have      basis that might support” the requirement that patrons wear
found the existence of a liberty interest in personal               shoes. Craigmiles, 312 F.3d at 224 (quoting Lehnhausen v.
appearance. See DeWeese v. Town of Palm Beach, 812 F.2d             Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). Here,
1365, 1367 (11th Cir. 1987) (prohibiting shirtless male jogger      as previously discussed, the Board has made the reasonable
unreasonable); Domico v. Rapides Parish Sch. Bd., 675 F.2d          determination that the requirement that patrons of the Library
100, 101 (5th Cir.1982) (noting that “there is a constitutional     wear shoes is necessary to protect both “the health and safety
liberty interest in choosing how to wear one’s hair”). “[S]ince     of Library patrons, who may be harmed in the Library if
Kelley, the nation’s courts have assumed or found [a liberty        allowed to enter barefoot,” and “the economic well-being of
interest] in a veritable fashion show of different factual          the Library, by averting tort claims and litigation expenses
scenarios.” Zalewska v. County of Sullivan, New York, 316           stemming from potential claims made by barefoot patrons
F.3d 314, 321 (2d Cir. 2003).                                       who could have suffered injuries that shoes could have
                                                                    prevented.” Consequently, the Board’s requirement that
   Assuming the existence of a liberty interest in personal         patrons of the Library wear shoes satisfies rational basis
appearance, we must next determine whether the Board                review.
unconstitutionally infringed upon Neinast’s liberty interest by
mandating that he wear shoes in the Library. The Sixth                                           D.
Circuit previously has held that personal appearance is not a
fundamental right. See Gfell v. Rickelman, 441 F.2d 444, 446          Neinast claims that Black presently is “enforcing a barefoot
(6th Cir. 1971) (“We are unable to agree with some courts           policy that is not authorized by State Law” or by the Board,
that the freedom of choosing one’s hair style is a fundamental      and that Johnson “enforced that barefoot policy in a manner
right.”). Since the Board’s requirement that patrons of the         sanctioned by neither State Law, nor the Eviction Procedure,”
Library wear shoes does not implicate a fundamental right, it       thereby depriving Neinast of procedural due process. These
is subject to rational basis scrutiny. See DeWeese, 812 F.2d        claims lack merit.
at 1367; see also Domico, 675 F.2d at 102; Rathert v. Vill. of
No. 02-3482                    Neinast v. Bd. of Trs. of the           17     18     Neinast v. Bd. of Trs. of the                        No. 02-3482
                            Columbus Metro. Library et al.                           Columbus Metro. Library et al.

  First, Neinast cannot base his procedural due process claim                 of state law – namely, the amount of rulemaking authority the
on the Board’s allegedly “improper adoption of a rule of                      Board properly can delegate to its Executive Director under
general applicability.” Reichelt v. Gates, 967 F.2d 590, 1992                 Ohio Revised Code § 3375.40 – and thus falls outside the
WL 127057, at *2 (9th Cir. June 11, 1992) (citing United                      scope of § 1983.
States v. Florida East Coast Ry. Co., 410 U.S. 224, 244-46
(1973)). “Governmental determinations of a general nature                       With regard to his second claim, Neinast argues that the
that affect all equally do not give rise to a due process right to            procedures employed by Johnson when serving Neinast with
be heard.” Nasierowski Bros. Inv. Co. v. City of Sterling                     a one-day eviction from the Library departed from the
Heights, 949 F.2d 890, 896 (6th Cir. 1991). Since the                         Eviction Procedure, thereby depriving him of procedural due
requirement that all patrons of the Library wear shoes is of                  process. The Eviction Procedure states that patrons wearing
general applicability, Neinast’s procedural due process rights                “inappropriate dress, to include but not be limited to: no shirts
have not been violated with respect to the provision’s                        and no shoes” are to be “asked to leave [the] premises to
adoption.                                                                     correct the problem.” After violating this provision on
                                                                              March 2, 2001, however, Neinast was served with a one-day
   Neinast admits that the Board “properly promulgated their                  eviction for a violation described as “improper dress/staff
Patron Regulations,” but observes that the Patron Regulations                 harassment.”
themselves contain no express requirement that patrons of the
Library wear shoes. However, the issue of whether the                            While “[t]he touchstone of due process is protection of the
Board’s delegation of authority to the Executive Director to                  individual against arbitrary action of government,” Wolff v.
establish the Eviction Procedures was proper is a matter of                   McDonnell, 418 U.S. 539, 558 (1974), the fact that Johnson
state law. Section 1983, upon which Neinast bases his claim,                  did not follow the Eviction Procedure, standing alone, does
authorizes courts to redress violations of “rights, privileges,               not establish a denial of due process. “Due process of law
or immunities secured by the Constitution and [federal] laws”                 guarantees ‘no particular form of procedure; it protects
that occur under color of state law. “The statute is thus                     substantial rights.’” Mitchell v. W. T. Grant Co., 416 U.S.
limited to deprivations of federal statutory and constitutional               600, 610 (1974) (quoting NLRB v. Mackay Co., 304 U.S. 333,
rights. It does not cover official conduct that allegedly                     351 (1938)). It is unclear what level of process Neinast
violates state law.” Huron Valley Hosp., Inc. v. City of                      claims he was entitled to receive. The Supreme Court has
Pontiac, 887 F.2d 710, 714 (6th Cir. 1989) (citing Baker v.                   observed that “‘[d]ue process is flexible and calls for such
McCollan, 443 U.S. 137, 146 (1979)). Neinast concedes that                    procedural protections as the particular situation demands.’”
the Board’s delegation of authority to Black “regarding                       Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting
internal polices and procedures” was proper, but argues that                  Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). At a
Black “was not granted the authority to create and enforce an                 minimum, however, “‘[p]arties whose rights are to be affected
external regulation.”3 Neinast’s claim turns upon a question                  are entitled to be heard; and in order that they may enjoy that
                                                                              right they must first be notified.’” Goss v. Lopez, 419 U.S.

    3
      Neinast mischaracterizes the extent of the authority granted to Black
by the Board . As previously noted , Black was not merely limited to          relations, relations with the community, . . . and the handling of all other
“internal policies and procedures,” b ut also was responsible fo r “pub lic   matters involved with the operation of the library system.”
No. 02-3482               Neinast v. Bd. of Trs. of the   19
                       Columbus Metro. Library et al.

565, 579 (1975) (quoting Baldwin v. Hale, 1 Wall. 223, 233,
17 L.Ed. 531 (1864)). Here, immediately prior to Neinast’s
eviction on March 2, 2001, Chris Taylor (another employee
of the Library) and Johnson discussed the eviction procedure
with Neinast. Neinast was notified of the charges against him
by Johnson, who stated that “he was harassing the staff by
continuing to come in without his shoes on.” Neinast
expressed his disagreement and “reminded [Taylor and
Johnson] that [the Library’s] procedure only states that [the
Library] may ask him to leave.” Neinast thus was provided
with notice of the charges against him and “‘an opportunity
to present his side of the story.’” Boals v. Gray, 775 F.2d
686, 690 (6th Cir. 1985) (quoting Goss v. Lopez, 419 U.S.
565, 581 (1975)). Regardless of what procedure is generally
due when a patron of a public library contests charges giving
rise to a proposed short-term eviction, under the particular
facts of this case the procedure by which Neinast was evicted
was constitutional. Consequently, summary judgment for
defendants-appellees was proper.
                            III.
  For all of the foregoing reasons, we affirm the judgment of
the district court.
