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Fitzgerald v. City of Portland

United States District Court, D. Maine

October 27, 2014

DANIEL FITZGERALD, et al., Plaintiffs,
v.
CITY OF PORTLAND, et al., Defendants.

ORDER ON DEFENDANTS' MOTION TO DISMISS

NANCY TORRESEN, District Judge.

Before the Court is the Defendants' motion to dismiss the Plaintiffs' First Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (ECF No. 41). For the reasons stated below, the motion is GRANTED in part and DENIED in part.

BACKGROUND

The Plaintiffs in this action are Daniel Fitzgerald, Marguerite Fitzgerald, in their own right and as next of kin to minor children, L.M.F., J.P.F., and Leslie Sneddon (the "Plaintiffs"). The Defendants are the City of Portland, Michael F. Brennan, Kevin J. Donoghue, David A. Marshall, Edward J. Suslovic, Cheryl A. Leeman, John R. Coyne, Jon C. Hinck, Nicholas M. Mavodones, Jr., and Jill C. Duson (the "Defendants").

On November 18, 2013, the Portland City Council voted 9-0 to enact an ordinance titled "Access to Reproductive Health Care Facilities" (the "Ordinance"). See Portland, Me., Code § 17-108-112 (2013) (repealed July 7, 2014). The Ordinance prohibited anyone other than clinic visitors, employees, law enforcement, passers-by, and public-transit users from entering within thirty-nine feet of any reproductive health care facility ("RHCF") in Portland. Id. at § 17-110. The Ordinance affected a single RHCF, run by Planned Parenthood of Northern New England, located in downtown Portland. The stated purpose of the Ordinance was "to balance both the fundamental right to assemble peacefully and to demonstrate on matters of public concern, with the right to seek and obtain reproductive health care services." Id. at § 17-108(e).

The Ordinance was modeled after a Massachusetts law passed in 2007, titled "An Act Relative to Public Safety at Reproductive Health Care Facilities" (the "Massachusetts Act"). See Mass. Gen. Laws, ch. 266 § 120E ½ (2014), invalidated by McCullen v. Coakley, 134 S.Ct. 2518 (2014), repealed by 2014 Mass. Legis. Serv. Ch. 197 (S.B. 2283) (West). The Massachusetts Act withstood repeated constitutional challenges in the District of Massachusetts and the First Circuit. See McCullen v. Coakley, 573 F.Supp.2d 382 (D. Mass. 2008) (denying facial challenge to the Massachusetts Act); McCullen v. Coakley, 571 F.3d 167 (1st Cir. 2009) (affirming denial of facial challenge); McCullen v. Coakley, 759 F.Supp.2d 133 (D. Mass. 2010) (dismissing all but one as-applied challenge to the Massachusetts Act); McCullen v. Coakley, 844 F.Supp.2d 206 (D. Mass. 2012) (dismissing remaining as-applied challenge to the Massachusetts Act); McCullen v. Coakley, 708 F.3d 1 (1st Cir. 2013) (affirming dismissal of as-applied challenges).[1] Some of the McCullen plaintiffs appealed, and on June 24, 2013, the Supreme Court granted certiorari. See McCullen v. Coakley, 708 F.3d 1 (1st Cir. 2013), cert. granted, 81 U.S.L.W. 3557 (U.S. June 24, 2013) (No. 12-1168).

On February 12, 2014, with McCullen v. Coakley still pending before the Supreme Court, Plaintiffs initiated the present action by filing a complaint (the "Original Complaint") (ECF No. 1) claiming that the Ordinance, on its face and as applied, violated rights guaranteed by the First and Fourteenth Amendments of the Constitution. On March 10, 2014, Plaintiffs filed an amended complaint (the "Amended Complaint") (ECF No. 16) and a motion for a preliminary injunction enjoining enforcement of the Ordinance (ECF No. 17). Shortly thereafter, the Defendants filed a motion to stay the case pending a ruling from the Supreme Court (ECF No. 21).

In April of 2014, the Defendants filed a motion to dismiss the Amended Complaint ("MTD I") (ECF No. 23) as it pertained to each of the individually-named City Council members (the "Individual Defendants" or the "City Council Members"), asserting that they were entitled to qualified immunity. The Defendants argued that notwithstanding the Supreme Court's grant of certiorari, when the City Council Members voted to pass the Ordinance, they were acting pursuant to valid First Circuit authority upholding the similar Massachusetts Act regarding buffer zones around reproductive health care centers. MTD I 5 (citing McCullen v. Coakley, 708 F.3d 1 (1st Cir. 2013)).

This Court denied the Defendants' motion to stay the case on May 28, 2014 (ECF No. 33). The Supreme Court held on June 26, 2014, that the Massachusetts Act was not narrowly tailored to serve a significant governmental interest, and therefore violated the First Amendment. See McCullen v. Coakley, 134 S.Ct. 2518 (2014). At that time, this Court had not yet ruled on the Plaintiffs' Preliminary Injunction Motion or the Defendants' Motion to Dismiss I.

In response to the Supreme Court's McCullen ruling, the City Council met on July 7, 2014 and voted to repeal the Ordinance, effective immediately. See July 8, 2014 Aff. of Katherine L. Jones (ECF No. 41-1); Portland City Council Order 10-14/15 (ECF No. 41-2). The Defendants now move to dismiss Plaintiffs' claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), [2] asserting that the City Council's repeal of the Ordinance has rendered all issues before this Court moot and that Plaintiffs have no remaining claims upon which relief may be granted. Defs.' Mot. to Dismiss Pls.' First Am. Compl. 3 ("MTD II") (ECF No. 41).

LEGAL STANDARD

Lack of Subject-Matter Jurisdiction: Rule 12(b)(1)

"The doctrine of mootness enforces the mandate that an actual controversy must be extant at all stages of the review, not merely at the time the complaint is filed.'" Davidson v. Howe, 749 F.3d 21, 26 (1st Cir. 2014) (quoting Am. Civil Liberties Union of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 52 (1st Cir. 2013)). "Simply stated, a case is moot when the issues presented are no longer live' or the parties lack a legally cognizable interest in the outcome.'" Am. Civil Liberties Union of Mass., 705 F.3d at 52 (quoting D.H.L. Assocs., Inc. v. O'Gorman, 199 F.3d 50, 54 (1st Cir. 1999)). Further, "[i]f events have transpired to render a court opinion merely advisory, Article III considerations require dismissal of the case.'" Am. Civil Liberties Union of Mass., 705 F.3d at 52-53 (quoting Mangual v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003)). The party raising mootness has the burden of establishing it. Davidson, 749 F.3d at 26 (citing Am. Civil Liberties Union of Mass., 705 F.3d at 52).

Motion for Judgment on the Pleadings: Rule 12(c)

A motion for judgment on the pleadings pursuant to Rule 12(c)[3] "is treated much like a Rule 12(b)(6) motion to dismiss." Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (citing Curran v. Cousins, 509 F.3d 36, 43-44 (1st Cir. 2007)). "Because such a motion calls for an assessment of the merits of the case at an embryonic stage, the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom to the nonmovant's behoof." R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006) (internal citations omitted). In assessing a Rule 12(c) motion a "court may supplement the facts contained in the pleadings by considering documents fairly incorporated therein and facts susceptible to judicial notice." Id. To withstand a Rule 12(c) motion, "a complaint must contain factual allegations that raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true....'" Perez-Acevedo, 520 F.3d at 29 (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). In sum, "to survive a motion for judgment on the pleadings, the complaint must state a claim that is plausible on its face." Pineiro v. Gemme, 937 F.Supp.2d 161, 168-69 (D. Mass. 2013) (citing Twombly, 550 U.S. at 570).

DISCUSSION

The Defendants argue that because the challenged Ordinance is no longer in effect, Plaintiffs have received the relief they sought, and there is no longer any controversy for this Court to decide. MTD II 2-3. Plaintiffs counter that: (1) they suffered harm when they were prohibited from exercising their First Amendment rights throughout the existence of the Ordinance; (2) the City Council's repeal of the Ordinance has not rendered their requests for declaratory relief or nominal damages moot; and (3) the voluntary cessation exception prevents mootness where the City Council is likely to enact a similar ordinance in the future. Pls.' Resp. to Defs.' Mot. to Dismiss 2, 4-6 ("Pls.' Resp.") (ECF No. 42).[4]

I. Claims Against the City

A. Equitable Relief

The City Council's repeal of the Ordinance has rendered Plaintiffs' claims for injunctive and declaratory relief moot. See Princeton Univ. v. Schmid, 455 U.S. 100, 102 (1982) (mooting challenge to a since-altered regulation); New England Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 18 (1st Cir. 2002) (mooting challenge to a former permitting policy and observing that "it would be pointless either to enjoin the enforcement of a regulation that is no longer in effect or to declare its constitutional status."); D.H.L. Assocs., Inc., 199 F.3d at 54-55 (mooting claims for injunctive and declaratory relief on former versions of an ordinance); see also Am. Civil Liberties Union of Mass., 705 F.3d at 53-54 (explaining that a controversy must be "immediate" and "real" for declaratory relief to withstand a mootness challenge). As the Supreme Court has instructed, federal courts "are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong." Spencer v. Kemna, 523 U.S. 1, 18 (1998). Indeed, "[a] declaratory judgment on the validity of a repealed ordinance is a textbook example of advising what the law would be upon a hypothetical state of facts.'" Nat'l. Adver. Co. v. City & Cnty. of Denver, 912 F.2d 405, 412 (10th Cir. 1990) (quoting Blinder, Robinson & Co., Inc. v. U.S. S.E.C., 748 F.2d 1415, 1418 (10th Cir. 1984)) (mooting claims for injunctive and declaratory relief on a since-repealed ordinance, but allowing a damage claim under § 1983 to proceed).

Contrary to the Plaintiffs' assertions, the voluntary cessation exception does not save their claims for equitable relief from mootness. As the First Circuit has explained, this exception exists to target "a manipulative litigant immunizing itself from suit indefinitely, altering its behavior long enough to secure a dismissal and then reinstating it immediately after." Am. Civil Liberties Union of Mass., 705 F.3d at 54-55 (internal citations omitted). "The exception, to be invoked, also requires some reasonable expectation of recurrences of the challenged conduct." Id. at 55. The voluntary cessation exception is "highly sensitive to the facts of a given case."[5] Id. at 56 (internal citation omitted).

Some City Council Members did express reluctance in repealing the Ordinance and indicated a desire to identify alternative polices to protect individuals seeking healthcare services. Ex. 1 to Pls.' Resp. ("City Council Meeting Tr.") (ECF No. 42-1). For example, one member stated:

I think this council made the right decision when it took action several months ago.... [W]e listened to people. I think this council feels very strongly about this issue. I don't agree with the Supreme Court, but that doesn't mean too much tonight. I will vote to repeal the ordinance. I feel very strongly... should this pass, and I suspect it will, that we come back very quickly with something that does meet muster and does provide the protection for people who want health services.

City Council Meeting Tr. 22. As this comment suggests, the City Council may indeed take future action to address access to healthcare services in Portland. However, there is no "reasonable expectation of recurrences of the challenged conduct, " Am. Civil Liberties Union of Mass., 705 F.3d at 55, where the City Council swiftly repealed the Ordinance in response to newly decided Supreme Court precedent, and indicated a desire to enact a different, constitutionally-permissible policy in the future. This is not a case where a city revised an ordinance, but announced an intention to revive the original version post-suit, see City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 & n.11 (1982), or where a city enacted a new, but sufficiently similar ordinance to the one challenged. See Ne. Fla. Chapter of the Assoc. Gen. Contractors v. Jacksonville, 508 U.S. 656, 662 & n.3 (1993).

Further, the Supreme Court granted certiorari in McCullen v. Coakley before Plaintiffs brought the present action. See supra 3. The City Council did appear motivated in part by the present lawsuit when it decided to repeal the Ordinance, [6] but it was not until the Supreme Court decided McCullen v. Coakley that it actually did so. The City Council Meeting Transcript indicates that the City Council repealed the Ordinance to conform to newly decided Supreme Court precedent, not to evade review, secure dismissal, and reinstate the Ordinance shortly thereafter.[7] If the City Council does pass a restriction similar to the Ordinance in the future, such a constraint may be challenged on its own terms in light of appropriate legal precedent. Reading the City Council Meeting Transcript in the light most favorable to the Plaintiffs, there are no facts suggesting that the City Council will enact a subsequent unconstitutional ordinance. The voluntary cessation exception does not apply; Plaintiffs' claims for equitable relief are moot.

B. Nominal Damages

A valid claim for nominal damages avoids mootness. See Kuperman v. Wrenn, 645 F.3d 69, 73 & n.5 (1st Cir. 2011). In Kuperman, the First Circuit considered a former prisoner's § 1983 claim that being forced to shave during his incarceration violated his First Amendment rights to free exercise of his religion. Because the plaintiff was no longer incarcerated, he conceded that his claims for injunctive relief were moot. Id. at 73. However, because he could still obtain nominal and punitive damages, his § 1983 damage claims could move forward. Id. [8] See also Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1258-59 (10th Cir. 2004) (mooting claims for injunctive and declaratory relief regarding an expired and later-amended ordinance, but finding that claim for nominal damages kept the case alive); 13C Charles Allen Wright & Arthur R. Miller, Fed. Prac. & Proced. § 3533.3 (3d ed. 2014) ("A valid claim for nominal damages should avoid mootness.").

Defendants argue that Plaintiffs could only be entitled to nominal damages if they had alleged a due process violation, because nominal damages are only appropriate for infringements on due process rights, not First Amendment rights. Defs.' Reply 2. The Defendants are incorrect. In Cortes-Reyes v. Salas Quintana, 608 F.3d 41, 53 (1st Cir. 2010), the First Circuit chose not to overturn an (albeit unchallenged) award of nominal damages for a First Amendment violation. In so doing, the Cortes-Reyes court noted that several circuits have held that nominal damages are appropriate for First Amendment violations, in addition to procedural due process violations. Id. at 53 n.15 (collecting cases). Courts in this circuit have since entertained nominal damage claims for constitutional violations beyond due process, including for First Amendment violations. See Kuperman, 645 F.3d at 74-77 (proceeding to the merits of former prisoner's claim for nominal damages under § 1983, including for First Amendment violations); Pineiro v. Gemme, 937 F.Supp.2d 161, 175-76 (D. Mass. 2013) (proceeding to the merits of a claim for nominal damages under § 1983 for violations of Second Amendment right to bear arms and Fourteenth Amendment right to equal protection); Rodriguez-Melendez v. Fortuno-Burset, No. 10-2044, 2011 WL 3442471, at *5 (D.P.R. Aug. 8, 2011) (declining to dismiss prisoner's nominal and punitive damages claim for Eighth Amendment violations).[9]

As the Supreme Court has recognized, nominal damages serve an important function in the protection of constitutional rights. See Carey v. Piphus, 435 U.S. 247, 266 (1978) ("By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed...."). A nominal damage award allows a plaintiff who cannot demonstrate a compensable injury, but has nonetheless suffered a constitutional violation, to vindicate that harm in court. See Farrar v. Hobby, 506 U.S. 103, 115 (1992) (holding that a plaintiff who achieves nominal damages is a "prevailing party" under 42 U.S.C. § 1988). Plaintiffs' § 1983 claim for nominal damages for violations of their First Amendment rights is not moot.[10]

On the one hand, it may seem an anomalous result that a claim for declaratory relief can be moot, while a claim for nominal damages, which requires a court to make a determination as to constitutional injury, survives. Other courts have similarly observed this apparent incongruity. See, e.g. Utah Animal Rights Coal., 371 F.3d at 1257; see also Boston's Children First v. City of Boston, 395 F.3d 10, 16-18 (1st Cir. 2005) (analyzing whether an award of nominal damages necessarily included a finding of a constitutional violation); 13C Charles Allen Wright & Arthur R. Miller, Fed. Prac. & Proced. § 3533.3 (3d ed. 2014) ("The very determination that nominal damages are an appropriate remedy for a particular wrong implies a ruling that the wrong is worthy of vindication by an essentially declaratory judgment."). On the other hand, this result is appropriate here, where the parties do not need any prospective relief from this Court regarding the constitutionality of the since-repealed Ordinance, but Plaintiffs have plausibly alleged a past constitutional harm capable of vindication.

II. The Individual Defendants

Plaintiffs no longer have any live claims against the Individual Defendants. Although Plaintiffs' seek nominal damages from "Defendants" generally in their Amended Complaint 20, Plaintiffs have since repeatedly clarified that they are not seeking damages from the Individual Defendants. Instead, Plaintiffs are only pursuing equitable relief from the Individual Defendants.[11] As described above, because the City Council has repealed the Ordinance, all claims for injunctive and declaratory relief are moot. See supra 7-9. Therefore, all claims against the Individual Defendants are likewise moot.[12]

CONCLUSION

For the reasons stated above, the Court GRANTS Defendants' motion to dismiss with respect to the claims against Michael F. Brennan, Kevin J. Donoghue, David A. Marshall, Edward J. Suslovic, Cheryl A. Leeman, John R. Coyne, Jon C. Hinck, Nicholas M. Mavodones, Jr., and Jill C. Duson; GRANTS Defendants' motion to dismiss with respect to the requests for injunctive and declaratory relief against the City of Portland; and DENIES Defendants' motion to dismiss with respect to the request for nominal damages against the City of Portland. In light of this order, Plaintiffs' Motion for Preliminary Injunction (ECF No. 17) and Defendants' Motion to Dismiss the Individual Defendants (ECF No. 23) are DENIED AS MOOT. The parties are directed to contact the Clerk's Office to set a scheduling conference with the Court to discuss next steps in this matter.

SO ORDERED.


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