United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE
the Court are two motions: (1) the defendant's Rule
12(b)(6) motion to dismiss; and (2) the plaintiff's
motion to strike the defendant's supplemental memorandum
in support of its motion to dismiss. For the reasons that
follow, the plaintiff's motion to strike is GRANTED, and
the defendant's motion to dismiss is GRANTED in part, as
to the plaintiff's “class of one” Equal
Protection claim under the Fourteenth Amendment, and DENIED
in part, as to the plaintiff's pled claim that the
City's Comprehensive Zoning Ordinance, § 21.6.V,
constitutes an unconstitutional content-based regulation and
prior restraint of speech in violation of the First
civil rights lawsuit challenges the constitutionality of the
City's murals-permit scheme, which regulates the
installation of artwork on all private property throughout
the City of New Orleans.
Morris lives in Orleans Parish, where he owns residential and
commercial properties. In late 2017, seeking information
concerning the City's murals permit process and the
criteria used to determine approval, Morris visited New
Orleans City Hall. No City employee gave him the information
he requested. Nevertheless, on November 4, 2017, Morris
commissioned a local artist to paint a mural on a commercial
property he owns at 3521 South Liberty Street. The mural
quotes a comment made by President Donald Trump, recorded in
a 2005 “Access Hollywood” segment; the mural
replaces with pictograms two vulgar words used by Trump.
few days after the mural was painted, a local news outlet
publicized a story about the mural and noted that murals
“are typically regulated by the Historic District
Landmarks Commission and the City Council.” The same
day the news story was published, on November 8, 2017, the
City of New Orleans Department of Safety and Permits sent
Morris a letter advising him that the mural violated a zoning
ordinance. Specifically, Jennifer Cecil, the purported
director of the City's “One Stop for Permits and
Licenses, ” wrote that an inspection of the property on
November 8 revealed a violation of Section 12.2.4(8) of the
Comprehensive Zoning Ordinance, which, according to the
letter, concerns “Prohibited Signs-Historic
District.” Ms. Cecil described the violation:
The mural on the building on this property is not allowed in
that the property is zoned residentially and murals shall not
be permitted in any residentially zoned historic district.
was told to remove the mural, and warned that his failure to
do so by November 22, 2017
will cause the Department of Safety and Permits to initiate
appropriate legal action to secure compliance. The penalty
for failure to comply is a maximum fine or jail for each and
every day the violation continues plus court cost as
prescribed by law.
Cecil said Morris should contact her once the mural was
removed so that she could re-inspect the property.
discovered several inaccuracies in the November 8 letter:
Section 12.2.4(8) does not exist; there is no section titled
“Prohibited Signs-Historic District” in the CZO;
nor does the CZO contain a blanket prohibition on murals in
residentially zoned historic districts. On November 17, 2017,
Morris wrote to the City requesting clarification in light of
his discovery of the inaccuracies in Ms. Cecil's
letter. The City did not respond.
prosecution, Morris sued the City on March 13, 2018, alleging
that the “murals-permit scheme (Comprehensive Zoning
Ordinance § 216.V et seq. and Municipal Code §
134-78A et seq.)” violate his First and Fourteenth
Amendment rights. His complaint alleges that: (1) the
City's requirement that property owners obtain advance
government approval before receiving a mural permit, or face
criminal punishment, subjects him and other property owners
to an unconstitutional prior restraint on speech where
approval or denial of a permit is left to the unfettered
discretion of City officials; (2) the City's
murals-permit process is an unconstitutional, content-based
restriction on speech insofar as an applicant must pay a $500
fee and must submit a drawing, which will be subject to the
City's “acceptability” review before a mural
is approved; (3) the City's murals-permit process
violates Morris' and other property owners' due
process rights by subjecting their artistic expression to
prior review, indefinite in duration, by unspecified
officials using vague, overbroad, or nonexistent
standards; and (4) the City engages in selective
enforcement of its mural regulations in violation of the
Equal Protection Clause. Morris' complaint requests:
• A preliminary (and ultimately permanent) injunction
barring the City from enforcing the murals-permit scheme,
Comprehensive Zoning Ordinance §21.6.V et seq. and
Municipal Code § 134-78A et seq.
• A declaratory judgment that the City's actions,
policies, and procedures embodied in the murals-permit scheme
are unconstitutional violations of the plaintiff's rights
under the First Amendment, as well as the Due Process and
Equal Protection Clauses of the Fourteenth Amendment of the
United States Constitution.
• Reasonable attorney's fees, expenses, and costs
under 42 U.S.C. § 1988.
two months after Morris filed suit, on May 24, 2018, the New
Orleans City Council enacted M.C.S., Ordinance No. 27783,
which removed Sections 134-78A and 134-78B from the Municipal
Code. As a result, the City's murals-permitting scheme is
now found only at CZO Section 21.6.V. In addition, the City agreed
that it would not enforce its murals-permitting scheme
against Mr. Morris for existing murals on his property, or
any additional murals painted on any of his properties,
during the pendency of this lawsuit. In light of the
City's non-enforcement pledge, this Court, in its Order
and Reasons dated May 31, 2018, denied as moot Mr.
Morris' motion for preliminary injunctive relief.
on June 6, 2018, the City moved to dismiss the
plaintiff's claims under Rule 12(b)(6) on the grounds
that its murals-permitting scheme, now located only at CZO
Section 21.6.V, is facially constitutional as a valid time,
place, and manner restriction, and that the plaintiff's
due process and equal protection claims are without merit.
Morris filed an opposition to the motion to dismiss on June
19, 2018, and the City was granted leave to file a reply on
June 27, 2018.
month later, on August 2, 2018, the City was granted leave to
file a supplemental memorandum in support of its motion to
dismiss. In this paper, the City informs the Court that
Morris “appears” to have violated his agreement
with the City. In response, Morris moved to strike the
City's supplemental memorandum under Federal Rule of
Civil Procedure 12(f)(2), contending that this pleading was
untimely filed, is legally irrelevant to the pending motion,
and was submitted solely to prejudice him.
12(b)(6) of the Federal Rules of Civil Procedure allows a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. Such a motion
is rarely granted because it is viewed with disfavor. See
Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247
(5th Cir. 1997) (quoting Kaiser Aluminum & Chem.
Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045,
1050 (5th Cir. 1982)).
Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009)(citing Fed.R.Civ.P. 8). "[T]he pleading
standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an
accusation." Id. at 678 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
considering a Rule 12(b)(6) motion, the Court
“accept[s] all well-pleaded facts as true and view[s]
all facts in the light most favorable to the
plaintiff.” See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe
ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel.
Keys, 675 F.3d 849, 854 (5th Cir. 2012)(en banc)). But,
in deciding whether dismissal is warranted, the Court will
not accept conclusory allegations in the complaint as true.
Id. at 502-03 (citing Iqbal, 556 U.S. at
survive dismissal, “‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.'”
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotation marks omitted). “Factual allegations must be
enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (citations and footnote
omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678 (“The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.”). This is a “context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
“Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops short
of the line between possibility and plausibility of
entitlement to relief.” Id. at 678 (internal
quotations omitted) (citing Twombly, 550 U.S. at
557). “[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief'”, thus, “requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (alteration in original) (citation omitted).
threshold matter, the Court addresses Morris' motion to
strike the City's supplemental memorandum in support of
its motion to dismiss. This challenged pleading contains
extraneous allegations regarding Morris' purported
violation of his “agreement” with the City. In
particular, the City informs the Court that Morris agreed to
give the City notice prior to erecting any new mural and that
he has erected additional murals without providing such
notice. The City also relates that Morris has formed the
“Nola Mural Project” in an effort to “defy
New Orleans ordinances.” While such conduct might seem
to some as contemptuous and immature, the Court may only rely
on factual allegations contained within the plaintiff's
complaint when deciding a Rule 12(b)(6) motion to dismiss, so
it may not consider this submission. Accordingly, the
plaintiff's motion to strike the City's supplemental
memorandum is granted.
Court next considers whether the plaintiff has standing to
prosecute this lawsuit. In its motion to dismiss, the City
contends that the plaintiff lacks standing because he has
failed to establish that he has suffered an injury-in-fact.
The City submits that the plaintiff has paid no “fees,
” did not even apply for a permit, and will not have to
take down his murals or pay a fine for failing to do so, in
light of the City's pledge to stay enforcement against
his murals during the pendency of this lawsuit.
III of the Constitution limits federal courts'
jurisdiction to certain 'Cases' and
'Controversies.'” Clapper v. Amnesty
Int'l USA, 568 U.S. 398, 408 (2013) (“The law
of Article III standing, which is built on
separation-of-powers principles, serves to prevent the
judicial process from being used to usurp the powers of the
political branches.”). Three elements comprise the
“irreducible constitutional minimum” for
A plaintiff must show (1) it has suffered an “injury in
fact” that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
Friends of the Earth, Inc. v. Laidlaw Env'l Services
(TOC), Inc., 528 U.S. 167, 185 (2000)(citing Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
alleges that by installing a mural on his property, he
engaged in activity that is protected by the First Amendment,
and the City sought to curtail that activity. He further
alleges that he seeks to continue expressing his rights under
the First Amendment by installing additional murals.
Accordingly, Morris seeks an injunction against the
enforcement of the City's ordinance requiring a permit
for his murals, a declaratory judgment that this scheme is
unconstitutional, and reasonable attorneys' fees,
expenses, and costs. Because Morris seeks to redress the
threatened enforcement of an allegedly unconstitutional law,
he clearly has standing. The City's pledge to stay
enforcement of the permit scheme against the plaintiff's
murals during the pendency of this lawsuit only rendered moot
his request for preliminary injunctive relief.
complains that the City's murals-permit scheme violates
the First Amendment as (1) a content-based regulation of
speech and (2) a prior restraint on speech.
First Amendment, applicable to the states through the
Fourteenth Amendment, instructs that a state “shall
make no law . . . abridging the freedom of speech[.]”
U.S. Const. amend. I; XIV. Murals are artwork, which has long
been held to be expression protected by the First Amendment.
Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, 515 U.S. 557, 569, 574 (1995)(noting that
“the Constitution looks beyond written or spoken words
as mediums of expression, ” and that “the . . .
painting of Jackson Pollock, music of Arnold Schoenberg, or
Jabberwocky verse of Lewis Carroll [are] unquestionably
shielded” by the First Amendment); White v. City of
Sparks, 500 F.3d 953, 956 (9th Cir. 2007)(holding that
plaintiff's “self-expression through painting
constitutes expression protected by the First
Amendment”); ETW Corp. v. Jireh Pub., Inc.,
332 F.3d 915, 924 (6th Cir. 2003)(“The protection of
the First Amendment is not limited to written or spoken
words, but includes other mediums of expression, including
music, pictures, films, photographs, paintings, drawings,
engravings, prints, and sculptures.”); Bery v. City
of New York, 97 F.3d 689, 695 (2d Cir.
1995)(“Visual art is as wide ranging in its depiction
of ideas, concepts and emotions as any book, treatise,
pamphlet or other writing, and is similarly entitled to full
First Amendment protection.”).
evaluate the constitutionality of a municipal ordinance that
regulates a form of expression, a court must first determine
whether the regulation is content-based or content-neutral
and then apply the appropriate level of scrutiny. See
Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2226
(2015). “Content-based laws - those that target speech
based on its communicative content - are presumptively
unconstitutional and may be justified only if the government
proves that they are narrowly tailored to serve compelling
state interests.” Id. (citations omitted). The
Supreme Court has emphasized that there are two different
categories of content-based regulations. See id. at
2227. First, a regulation of speech is “content
based” where the law “‘on its face'
draws distinctions based on the message the speaker
conveys.” Id. (citations omitted). A facial
distinction based on message may be obvious, “defining
regulated speech by particular subject matter, ” or
subtle, “defining regulated speech by its function or
purpose.” Id. In either case, the regulation
“is subject to strict scrutiny regardless of the
government's benign motive or content-neutral
justification.” Id. at 2228.
Alternatively, a content-based regulation exists where a
statute is facially neutral but “cannot be
‘justified without reference to the content of the
regulated speech,' or [was] adopted by the government
‘because of disagreement with the message [the speech]
conveys.'” Id. at 2227 (quoting Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
Accordingly, “strict scrutiny applies either when a law
is content based on its face or when the purpose and
justification for the law are content based.”
Id. at 2228.
other hand, a content-neutral regulation of speech is subject
to what the high court calls the time, place, and manner
test. See Ward, 491 U.S. at 791. Such regulations
are constitutional provided “that they are narrowly
tailored to serve a significant governmental interest, and
that they leave open ample alternative channels for
communication of the information.” Id.
alleges that the murals-permit scheme is an unconstitutional
content-based regulation of speech in two ways: (1)
“murals” are regulated differently from
“signs” based on their content; and (2) murals
are subjected to “acceptability” review based on
first alleges that § 21.6.V is a content-based
regulation because it subjects murals to a regulatory
framework based on their content. The plaintiff also
alleges that § 21.6.V is an unconstitutional
content-based regulation because it subjects murals to
“acceptability” review based on their content and
gives City officials unfettered discretion to approve or
disapprove a permit. To support this allegation, the
plaintiff points to CZO § 21.6.V.2(b), which requires an
applicant to submit a “general drawing and written
description of the type of mural” along with his permit
motion to dismiss, the City contends that the plaintiff's
complaint “intentionally left out” part of the
drawing submittal requirement. Section 21.6.V.2(b) provides
in full: “General drawing and written description of
the type of mural (painted, mosaic, etc).” The City
declares that it is simply attempting to determine the type
of mural insofar as the medium used and that the contents of
a mural are not reviewed. It further submits that the
standards of approval do not even contemplate the contents of
a mural, but rather, seek to ensure that the historic fabric
of the City remains intact and that the health, safety, and
welfare of the public are maintained.
Court turns to the provisions of the CZO regarding murals to
determine whether their plain language allows for content
review. Section 21.6.V.1(a), entitled “Application,
No person, firm, or corporation may commence a mural
installation on a site without development plan and design
review approval by the Executive Director of the City
Planning Commission and the Design Advisory Committee in
accordance with Section 4.5. ...