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Morris v. City of New Orleans

United States District Court, E.D. Louisiana

October 18, 2018

NEAL MORRIS
v.
CITY OF NEW ORLEANS

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE

         Before 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 Amendment.

         Background

          This 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.

         Neal 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.

         Just a 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.

         Morris 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.

         Ms. Cecil said Morris should contact her once the mural was removed so that she could re-inspect the property.

         Morris 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.[1] The City did not respond.

         Fearing 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.[2] 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] (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;[4] and (4) the City engages in selective enforcement of its mural regulations in violation of the Equal Protection Clause.[5] 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.

         About 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.[6] 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.

         Then, 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.

         About a 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.[7] 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.

         I.

         Rule 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)).

         Under 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 unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         In 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 678).

         To 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).

         II.

         As a 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.[8] Accordingly, the plaintiff's motion to strike the City's supplemental memorandum is granted.

         III.

         The 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.

         “Article 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 standing:

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 decision.

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)).

         Morris 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.[9] 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.[10]

         IV.

         Morris 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.

         A.

         The 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.”).

         B.

         To 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.[11] 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.

         On the 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.

         Morris 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 their content.

         Morris first alleges that § 21.6.V is a content-based regulation because it subjects murals to a regulatory framework based on their content.[12] 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 application.

         In its 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.[13]

         The 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, ” provides:

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. ...

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