Morris v. City of New Orleans

350 F.Supp.3d 544

Neal MORRIS

v.CITY OF NEW ORLEANS

CIVIL ACTION NO. 18-2624

United States District Court, E.D. Louisiana.

Signed October 18, 2018

Bruce W. Hamilton, American Civil Liberties Union Foundation, Ronald Lawrence Wilson, Law Office of Ron Wilson, New Orleans, LA, for Neal Morris.

Mary Katherine Kaufman, Cherrell Simms Taplin, Rebecca H. Dietz, David Joseph Patin, Jr., New Orleans City Attorney's Office, Sunni Jones LeBeouf, City of New Orleans, New Orleans, LA, for 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937 ).

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, 129 S.Ct. 1937 )(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, 127 S.Ct. 1955 (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, 129 S.Ct. 1937 ("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...