Salman et al v. Phoenix, City of et al, No. 2:2011cv00646 - Document 29 (D. Ariz. 2011)

Court Description: ORDER granting 22 Motion to Dismiss. All claims are dismissed without prejudice. The clerk shall enter judgment. Signed by Judge Frederick J Martone on 10/20/11.(DMT)
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Salman et al v. Phoenix, City of et al 1 Doc. 29 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiffs, ) ) vs. ) ) City of Phoenix; Claude Mattox; Unknown) Mattox; Oscar Cortez; Unknown Cortez;) ) Frank Dancil; Unknown Dancil, ) ) Defendants. ) ) CV 11-00646-PHX-FJM Michael H. Salman; Suzanne Salman, ORDER 16 17 18 The court has before it defendants' motion to dismiss for lack of subject-matter jurisdiction (doc. 22), plaintiffs' response (doc. 24), and defendants' reply (doc. 28). I 19 20 Plaintiffs purchased their current residence in Phoenix, Arizona in 2005. Plaintiffs 21 are Christians who began inviting neighbors to their home for weekly bible studies and 22 prayer. In February 2007, plaintiffs were told by defendant Councilman Claude Mattox that 23 neighbors were concerned about plaintiffs' use of the property. Plaintiffs attended a meeting 24 with Mattox, their neighbors, and city officials. At the meeting plaintiffs were told that, 25 pursuant to city ordinances and codes, religious activity within a residence is considered 26 "Church Use," which is not permitted on plaintiff's property without the necessary permits. 27 As a result, plaintiffs were informed that bible studies were no longer allowed in either their 28 residence or the barn on their property. 1 In May 2007, plaintiffs submitted plans to construct a building they could use for bible 2 studies and worship. This application was withdrawn after Mattox moved for a change in 3 the parking requirements for places of worship in December 2007. Plaintiffs then filed for 4 a building permit to erect a structure in their backyard in November 2008. A permit was 5 issued in 2009 after reassurance from plaintiffs that the structure "would not be used for a 6 public place of worship," First Amended Complaint ("FAC") at 9, and the structure was built. 7 Plaintiffs aver that the building was not advertised as a public place of worship. Each week, 8 about forty to fifty of plaintiffs' family and friends would gather for bible studies or worship. 9 On June 11, 2009, plaintiffs were served with a search warrant and city inspectors 10 searched their property. During the inspection, plaintiffs allege that Defendant Police Officer 11 Oscar Cortez took a sign laying face down in the front yard that advertised dates and times 12 for Christian worship and placed it against a tree. As a result of the inspection, which 13 revealed building and zoning violations, defendant City Inspector Frank Dancil issued a 14 notice of violation to plaintiffs. 15 Plaintiff Michael Salman was ultimately convicted of sixty-seven building and zoning 16 code violations in 2010 by the Phoenix Municipal Court. He is appealing his conviction. In 17 the meantime, plaintiffs continue to worship at their residence with family and friends. 18 Defendant City of Phoenix filed charges against Suzanne Salman in January 2011 for 19 violating the city's sign ordinance by placing a sign with biblical scripture in the plaintiffs' 20 front yard. 21 March 21, 2011. Michael Salman was again charged with violating seven building codes on 22 Plaintiffs originally filed this action on April 4, 2011. An amended complaint (the 23 "FAC") was filed on April 14, 2011 (doc. 6). The thirty-nine page FAC seeks injunctive and 24 declaratory relief plus damages for seven counts pursuant to 42 U.S.C. § 1983 and state law: 25 (1) violation of the right to free exercise of religion under the United States and Arizona 26 Constitutions; (2) violation of the right to equal protection under the United States and 27 Arizona Constitutions; (3) violation of free exercise of religion under the Religious Land Use 28 and Institutionalized Person Act of 2000, 42 U.S.C. § 2000cc; (4) violation of free exercise -2- 1 of religion under the Arizona Freedom of Religious Exercise Act; (5) violation of the right 2 to due process under the United States and Arizona Constitutions; (6) civil conspiracy; and 3 (7) negligent supervision by defendant City of Phoenix. This court dismissed the civil 4 conspiracy claim on August 5, 2011 (doc. 21). Defendants move to dismiss all remaining 5 claims for lack of subject-matter jurisdiction. 6 II 7 Defendants argue that the court must abstain from adjudicating plaintiffs' federal 8 claims for injunctive and declaratory relief under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 9 746 (1971). The Younger doctrine instructs federal courts that, "[a]bsent 'extraordinary 10 circumstances', abstention in favor of state judicial proceedings is required if the state 11 proceedings (1) are ongoing, (2) implicate important state interests, and (3) provide the 12 plaintiff an adequate opportunity to litigate federal claims." Hirsh v. Justices of the Supreme 13 Court of the State of Cal., 67 F.3d 708, 712 (9th Cir. 1995).1 14 To determine whether a state proceeding is ongoing, we look at the status of the 15 proceedings "at the time the federal action was filed." Beltran v. State of Cal., 871 F.2d 777, 16 782 (9th Cir. 1988). Plaintiffs acknowledge that at the time they filed this action, they were 17 appealing plaintiff Michael Salman's conviction for violating the building code. Charges 18 were also pending against both plaintiffs for additional code violations. 19 nevertheless argue that these state proceedings are not ongoing, because they are not 20 requesting that their convictions for ordinance violations be overturned, but instead want "to 21 establish the existence of their constitutional rights and determine whether the ordinances and 22 building codes, as written, violate those rights." Response at 4-5. But this is a distinction 23 without a difference. Younger abstention applies to cases on direct appeal. See Dubinka 24 v. Judges of the Superior Court of the State of Cal. for the County of Los Angeles, 23 F.3d 25 218, 223 (9th Cir. 1994) (noting that Younger applies where a litigant "has not exhausted his Plaintiffs 26 1 27 28 Direct interference in a state proceeding is no longer required as a "threshold element" for Younger abstention. Gilbertson v. Albright, 381 F.3d 965, 968-69 (9th Cir. 2004). -3- 1 state appellate remedies," concluding that "even if [plaintiffs'] trials were completed at the 2 time of the district court's decision, the state court proceedings were still pending for 3 Younger abstention purposes"). And a declaration by this court that the building and zoning 4 ordinances plaintiffs were prosecuted under violate their constitutional rights would result 5 in the same impermissible disruption of state proceedings that led the Supreme Court to 6 extend the application of Younger from injunctions to declaratory relief. 7 Mackell, 401 U.S. 66, 72, 91 S. Ct. 764, 767 (1971). As in this case, the plaintiffs in Samuels 8 alleged that the state statute they were being prosecuted under violated their rights under the 9 First Amendment, and their due process and equal protection rights under the Fourteenth 10 Amendment. Id. at 67, 91 S. Ct. at 765. A declaration in this case that the City of Phoenix 11 ordinances as written violate plaintiffs' rights would necessarily undermine the validity of the 12 state proceedings. We conclude that the state proceedings against plaintiffs were ongoing 13 at the time that they commenced this action. See Samuels v. 14 For a federal court to abstain under Younger, the state proceeding must also "implicate 15 important state interests." Hirsh, 67 F.3d at 712. Plaintiffs contend that this prong is 16 inapplicable to their case because the statutes under which plaintiffs were charged were civil, 17 and it was "only through repeated violation and non-compliance that criminal charges were 18 brought against the [p]laintiffs." Response at 5. An ongoing state criminal proceeding, 19 however, implicates important state interests. Indeed, Younger abstention was originally 20 applied to prevent federal interference with state criminal proceedings. See Gilbertson, 381 21 F.3d at 970. In addition, the Ninth Circuit has recognized that actions by an Arizona city to 22 enforce zoning ordinances implicate an important state interest. In World Famous, the court 23 held that "an action, in aid of and closely related to Tempe's zoning ordinance and akin to a 24 criminal prosecution, clearly involves an important state interest" satisfying Younger's 25 second requirement. World Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d 26 1079, 1083 (9th Cir. 1987). Thus, whether the state proceedings against plaintiffs are 27 classified as criminal or civil, they implicate an important state interest. 28 -4- 1 Finally, Younger abstention is only appropriate where litigants had an opportunity to 2 present their federal constitutional claims in state court. Gilbertson, 381 F.3d at 972. 3 Plaintiffs contend that this prong is not met because they initially proceeded pro se in their 4 state court proceedings and "did not realize that defenses and evidence not raised at the initial 5 trial would be barred from future consideration." Response at 5. Younger demands "no 6 more than an opportunity" to present constitutional claims in state court; the "plaintiff's 7 failure to avail himself of that opportunity does not mean that the state procedures are 8 inadequate." Gilbertson, 381 F.3d at 972 (citing Juidice v. Vail, 430 U.S. 327, 337, 97 S. Ct. 9 1211, 1218 (1977)). In cases where a litigant does not attempt to present federal claims in 10 the state proceeding, we "should assume that state procedures will afford an adequate 11 remedy, in the absence of unambiguous authority to the contrary." Pennzoil Co. v. Texaco, 12 Inc., 481 U.S. 1, 15, 107 S. Ct. 1519, 1528 (1987). Rather than presenting evidence that 13 Arizona court procedures did not allow presentation of their federal claims, however, 14 plaintiffs acknowledge that they actually raised their constitutional claims in their appeal to 15 the state Superior Court. In sum, plaintiffs had an adequate opportunity to present their 16 constitutional claims in the state proceeding. 17 Two narrow exceptions to Younger abstention exist. Abstention is inappropriate 18 notwithstanding satisfaction of all three requirements where (1) the state proceeding is 19 motivated by harassment or bad faith, or (2) the "challenged statute is 'flagrantly and patently 20 violative of express constitutional prohibitions in every clause, sentence and paragraph. . . 21 against whomever an effort might be made to apply it.'" Huffman v. Pursue, Ltd., 420 U.S. 22 592, 611, 95 S. Ct. 1200, 1212 (1975) (internal quotation omitted). To establish bad faith, 23 the plaintiff must show that a prosecution was commenced "without a reasonable 24 expectation" of conviction. Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 621 (9th Cir. 25 2003). Plaintiffs argue that the defendants' actions were in bad faith because plaintiffs have 26 been threatened with multiple prosecutions for violations of the building codes. But 27 plaintiffs have not alleged that the City of Phoenix does not have a reasonable expectation 28 -5- 1 of obtaining conviction. To the contrary, plaintiffs admit that they have continued to hold 2 bible studies and worship at their residence despite the property's failure to conform to 3 current building codes. Plaintiffs have not shown that they meet the narrow exception of bad 4 faith. 5 Similarly, plaintiffs have not established that the statutes, ordinances, and building 6 codes in this case are "flagrantly violative. . . in every clause, sentence and paragraph" 7 Huffman, 420 U.S. at 611, 95 S. Ct. at 1212. Although plaintiffs argue that the codes do not 8 define "church" or "worship," and work in concert to violate plaintiffs' religious freedoms, 9 plaintiffs have not alleged that every clause and sentence of the challenged codes violate the 10 constitutional rights of every person - religious or not - against whom the codes might be 11 applied. 12 13 14 15 Because all three requirements of Younger are present and neither of the two exceptions apply, we must abstain from exercising jurisdiction. Baffert, 332 F.3d at 617 (noting that if Younger applies, a district court "must dismiss"). Accordingly, plaintiffs' federal claims for injunctive and declaratory relief are dismissed without prejudice. 16 17 III 18 We next turn to plaintiffs' § 1983 damage claims. The Younger doctrine applies to 19 § 1983 actions for money damages, but actions for damages should be stayed until state 20 proceedings are finished rather than dismissed. Gilbertson, 381 F.3d at 968. Damage claims 21 that are either untimely or meritless, however, do not need to be stayed. Equity Lifestyle 22 Props., Inc. v. County of San Juis Obispo, 548 F.3d 1184, 1196 n.23 (9th Cir. 2008). 23 Defendant argues that plaintiffs' § 1983 claims are untimely because they have not yet 24 accrued under Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994). Plaintiffs did not 25 address this issue in their response. Under Heck, a person seeking to recover § 1983 26 damages for conduct that, if unlawful, would render his conviction invalid must show that 27 the conviction has been reversed, expunged, declared invalid, or questioned by issuance of 28 a writ of habeas corpus. Id. at 486-87, 114 S. Ct. at 2372. Thus, a § 1983 action must be -6- 1 dismissed as untimely if the conviction arises out of the same facts and "is fundamentally 2 inconsistent with the unlawful behavior" for which damages are requested. Smithart v. 3 Towery, 79 F.3d 951, 952 (9th Cir. 1996). 4 In this case, an award of damages based on a finding that the ordinances under which 5 plaintiffs were convicted were unconstitutional would render the convictions invalid. 6 Plaintiffs have not shown that their convictions have been expunged or otherwise reversed. 7 Thus, the § 1983 damage actions have not yet accrued under Heck. We dismiss the § 1983 8 damage claims without prejudice. 9 IV 10 11 12 13 14 15 16 17 18 19 20 21 Having dismissed all federal claims, we turn to plaintiffs' state law claims. Defendant argues that the effect of dismissing the federal law claims under Younger is that the court "never had original jurisdiction over those claims." Mot. to Dismiss at 8. Thus, defendant argues, we must dismiss the state law claims because no other basis for federal subject-matter jurisdiction exists. Abstention under Younger, however, "does not lead to the determination that the federal courts have no basis for jurisdiction in the first instance." Canatella v. California, 404 F.3d 1106, 1116 (9th Cir. 2005). Instead, Younger "is a doctrine under which the federal courts have bound themselves pursuant to principles of comity to voluntarily decline to exercise jurisdiction that they have and would otherwise exercise." Id. Dismissing plaintiffs' federal claims under Younger, in other words, does not divest our jurisdiction over the entire case. 22 Once we dismiss all claims over which we had original jurisdiction (in this case, all 23 of plaintiffs' federal question claims), we may decline to exercise supplemental jurisdiction 24 over state law claims. 28 U.S.C. § 1367(c)(3). In the ordinary case where all federal claims 25 are dismissed, "the balance of factors to be considered under the pendent jurisdiction 26 doctrine—judicial economy, convenience, fairness, and comity—will point toward declining 27 to exercise jurisdiction over the remaining state-law claims." Sanford v. MemberWorks, Inc., 28 625 F.3d 550, 561 (9th Cir. 2010) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, -7- 1 350 n.7, 108 S. Ct. 614, 619 n.7 (1988)). This action is in the very early stages of discovery. 2 No depositions have been noticed, and the deadline for initial disclosures has just recently 3 passed. On balance, economy, comity, and fairness points towards declining to adjudicate 4 plaintiffs' state law claims. State claims are best resolved by state courts. 5 6 7 V IT IS ORDERED GRANTING defendant's motion to dismiss (doc. 22). All claims are dismissed without prejudice. The clerk shall enter judgment. 8 9 DATED this 20th day of October, 2011. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-