Foddrill Motion to Dismiss

Case 5:13-cv-00051 Document 27 Filed 09/04/2013[Page l of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JOHN FODDRILL, §
§
Plaintiff,
§

V. § Civil Action No. SA-l3-CV-0005 1 -XR


WILLIAM MCMANU S, MICHAEL

BERNARD, AND THE CITY OF SAN

ANTONIO, §

Defendants.

On this day the Court considered Defendants’ Motion to Dismiss for failure to state a

ORDER

claim. Doc. No. 9. With respect to Plaintiffs claims for damages and declaratory relief, the

Court GRANTS the Motion in part and DENIES it in part. The Court GRANTS the Motion to

Dismiss with respect to Plaintiffs claim for injunctive relief.

I. BACKGROUND

Plaintiff John Foddrill was formerly employed by Defendant, the City of San Antonio,

as a telecommunications manager. The circumstances surrounding his termination are not

clear. On July l, 2009, Plaintiff received a Criminal Trespass Warning (“CTW”) under

Chapter 30 of the Texas Penal Code. Plaintiff alleges that under the terms of the CTW, he was

prohibited from entering San Antonio City Hall, the Municipal Plaza Building, the Public

Safety Building, or the Riverview Towers Building. These buildings are used for both private

governmental functions and for meetings that are open to the public. Plaintiff further alleges

that the CTW was issued after he requested the city to disclose “potentially embarrassing

Case 5:13­0v-00051 Document 27 Filed 09/O4/2013EPage 2 of lO

information concerning an ongoing criminal conspiracy inside the city.”1 Compl. 1I 5.1.3. The

CTW was signed by Defendants William McManus, the San Antonio Chief of Police, and

Defendant Michael Bernard, the City Attorney.

Plaintiff alleges that he was subject to arrest for trespass if he entered one of the

aforementioned buildings. Compl. 1] 4.7. The Complaint indicates that Plaintiff mader

numerous attempts to have the CTW lifted and never received a response from the City. In

addition, Plaintiff alleges that both Defendant McManus and Defendant Bernard made public

statements indicating that CTWs were issued against those individuals the city deemed

threatening. Compl. 1l 4.10  4.11.

On February 28, 2013, Plaintiff filed his original complaint with this Court. The

Complaint is brought under 42 U.S.C. § 1983 for alleged violations of Plaintiffs First and

Fourteenth Amendment rights. On March 27, 2013, this Court granted a preliminary

injunction in another case requiring the city to remove its CTW against another individual.

Cuellar v. Bernard, SA-l3-CV-91-XR, 2013 WL 1290215 (W .D. Tex. Mar. 27, 2013). In

response, on April l, 2013, the City withdrew the CTW from Plaintiff.

On May 22, 2013, the Defendants filed the Motion to Dismiss that is now before the

Court. 0n  30, 2013, this Court ordered the parties to appear for a hearing to discuss the

claims in this case. Plaintiff sought a continuance in order to fmd an attorney. That hearing is

now scheduled for September 27, 2013 (Doc. No. 26). This hearing has not been mooted by

this order.

l According to the Complaint, the CTW was just one means by which the city allegedly retaliated against
Plaintiff. He further alleges that he was roused in the middle of the night of July 5, 2011, by members ofthe
“Mental Health Unit” of the San Antonio Police Department. Compl. 1l 4.3. Further, Plaintiff asserts that he
received threatening phone calls from Canada which warned him to stop reporting on alleged corruption in the
city government. 1d. 1] 4.6.

2

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II. LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.”’ Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2Ó07)). “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.” Id.

While detailed factual allegations are not necessary, a plaintiff must provide “more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

T wombly, 550 U.S. at 555. However, a complaint can survive a motion to dismiss even if

actual proof of the facts alleged is “improbable” Id. at 556. Although the court must take all

of the factual allegations in the complaint as true, the court is “not bound to accept as true a

legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting lTwombly,

550 U.S. at 555). “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. (internal quotation marks omitted).

III. ANALYSIS

“To state a claim under  1983, a plaintiff must allege the violation of a right secured

by the Constitution and laws of the United States, and must show that the alleged deprivation

was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48

(1988). Plaintiff alleges that Defendants, acting under color of state law, violated his First

Amendment rights to “free expression, free assembly and freedom to petition for redress.”

Doc. No. 10. Plaintiff also asserts that the City violated his procedural due process rights by

Case 5:13-cv-00051 Document 27 Filed 09/04/2013EPage 4 of 10

not providing a hearing to review the issuance of the CTW. Finally, Plaintiff alleges that the

city violated his substantive due process rights by arbitrarily depriving him of his liberty

interest in remaining on city property. Plaintiff has sufficiently pled facts that constitute a

plausible claim that the Defendants violated his First and Fourteenth Amendment rights.

Moreover, the claim for damages is not Wholly barred by the statute of limitations. Since there

is a live case or controversy with respect to damages, the claim for declaratory relief also

remains viable. However, the claim for injunctive relief` is moot and is therefore dismissed.

A. First Amendment Claims

1. Free Speech and Assemblv

The core of Plaintiffs claim is that the prohibitions contained in the CTW violated his

_ First Amendment right to free speech and free assembly. The Supreme Court has used a three-

step approach to determine whether a First Amendment right has been violated. The ñrst step

is to determine whether the claim involves protected speech, the second step is to identify the

nature of the forum, and the third step is to assess Whether the justifications for exclusion from

the relevant forum satisfy the requisite standard. Cornelius v. NAACP Legal Defense & Educ.

Fund, Inc., 473 U.S. 788, 797 (1985).

The Complaint alleges that the CTW specifically prohibited Plaintiff from entering

four city-owned buildings that are used to host public meetings. In general, participation in

public meetings constitutes protected speech. There is no indication that the was

narrowly tailored to prohibit speech that falls into any of the categories that the Supreme Court

has held “unprotected” by the First Amendment.2 As to the nature ofthe forum, the Supreme

2 These include: (1) speech that incites imminent lawless action, (2) hate speech, (3) defamation or 4) obscenity.
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383, (1992)

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Court distinguishes between public forums, designated public forums, limited public forums

and non-public forums. Chiu v. Plano Independent School Dist., 260 F.3d 330, 344 (5th Cir.

2001) (per curiam). Although the CTW prohibited access to buildings which are not entirely

open to the public, the use of such a governmental facility for public meetings suggests that

the forum is a designated public forum. Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir.

1989) (“[T]he city commission designated their meeting a public forum when the commission

intentionally opened it to the public and permitted ­public discourse on agenda items”). The

third prong of the test requires the Court to address Whether the justifications for the exclusion

satisfy the requisite standard. Plaintiff pleads that the CTW constituted a prior restraint on

speech. Prior restraints are generally disfavored and subject to strict scrutiny. Se. Promotions,

Ltd., v. Conrad, 420 U.S. 546, 558, (1975) (“Any system of prior restraint, however, comes to

this Court bearing a heavy presumption against its constitutional validity”). Plaintiff

sufficiently alleges that the CTW prevented him, in advance, from exercising his free speech

rights by prohibiting hirn from attending public meetings at City Hall and other similar venues.

Defendants’ primary argument is that Plaintiffs claim for damages is barred by the

statute of limitations. Doc. No. 9 at 4-5. Under the Supreme Court’s decision in Owens v.

Okure, 488 US. 235 (î989), state law determines the applicable statute 0f limitations in

1983 actions. The Court therefore looks to Texas tort law to establish that there is a two-year

statute of limitations in this case. Pete v. Metcalfe, 8 F.3d. 214, 2l7 (5th Cir. 1993). However,

the accrual of  1983 claims is a matter of federal law. Id. In general,  1983 claims accrue

when the plaintiff becomes aware of his or her right to sue. Bohannan v. Doe, 2013 WL

2631197 (5th Cir. June 12, 2013). Accordingly, Defendants argue that the claim accrued on

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July 1, 2009, the date on which Plaintiff received the CTW. Applying the two-year statute of

limitations, Defendants contend that any claim brought after July l, 2011, is time-barred. Doc.

No. 9.

This argument mischaracterizes the nature of harm that Plaintiff allegedly suffered.

Plaintiff has pled a continuing injury.3 In a continuing injury case, the Wrongful conduct

continues to create an additional injury to the Plaintiff until the conduct stops. Courts

recognize a distinction between a continuing Violation and a single violation With a continuing

impact: United Airlines v. Evans, 431 U.S. 553, 558 (1977). In this case, the alleged

constitutional injury Ílows not from the issuance of the CTW, but from the fact that for close

to four years Plaintiff Was prohibited from exercising his rights to free speech and assembly at

several public buildings. The purpose of the continuing Violation doctrine is to permit claims

Where “it is the cumulative effect of the discriminatory practice, rather than any discrete

occurrence, that gives rise to the cause of action.” Huckabay v. Moore, 142 F.3d. 233, 239 (5th

Cir. 1998). The First Amendment does not protect an individual’s right to be free from a

CTW, it protects his or her right to free speech and assembly. The CTW Was the mechanism

by which the City deprived Plaintiff of this constitutionally guaranteed right.4 Each day that

Plaintiff was aliegedly barred from accessing public facilities he suffered a constitutional

injury.

3 The Court acknowledges that most continuing injury cases occur in the Title VII employment context, and that
the doctrines’ applicability to  1983 actions is an unsettled area ofthe law. However, courts can and do apply the
continuing injury theory to  1983 actions. See, e. g. Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001)
(Holding that in a  1983 Eighth Amendment case the plaintiff had a continuing violation when the defendant
prison refused to treat his medical condition).

4 The Supreme Court’s decision in Wallace v. Kato, 549 U.S. 384, (2007), does not compel the opposite result. ln
Wallace, the Court held that petitioner’s  1983 claim accrued when he was bound over for trial on the basis of
unconstitutionally obtained evidence, and that his subsequent confinement did not constitute a continuing injury
for limitations purposes. Petitioner’s confinement in Wallace was the effect of the unconstitutional act. In the
First Amendment context relevant in this case, the City’s continual denial of Plaintiffs free speech rights is itself
the injury and is not merely the effect of some other discrete unconstitutional act.

Case 5:13-cv­00051 Document 27 Filed 09/O4/2013EPage 7 of lO

The Filth Circuit has held that if:

[T]he violation does not occur at a single moment but in a series
of separate acts and if the same alleged Violation was committed
at the time of each act, then the limitations period begins anew
with each violation and only those violations preceding the filing

of the complaint by the full limitations period are foreclosed.

Perez v. Laredo Junior Coll., 706 F.2d 731, 733-34 (5th Cir. 1983). The allegedly

unconstitutional limitations on Plaintiffs free speech rights began when the CTW was

received by Plaintiff and only ended when it was lifted on April l, 2013. Plaintiff filed suit in

this Court on February 28, 2013. Claims for injury that occurred more than two-years before

this date are barred by the statute of limitations. Accordingly, Plaintiff has a claim for the

alleged unconstitutional actions that took place between February 28, 2011, and April l, 2013.

2. Retaliation Claim

Plaintiff also alleges that the CTW was issued in retaliation for protected speech

activities. The First Amendment protects a citizen’s right to be free from government

retaliation for engaging in protected speech. Pickering v. Board of Educ., 391  563, 574

(1968). In general, First Amendment retaliation claims accrue when the act of retaliation

occurs. Hitt v. Connell, 301 F.3d. 240, 246 (5th Cir. 2002). Here, the alleged retaliatory act

Was the issuance ofthe CTW. This occurred on July l, 2009. The Court applies the two-year

statute of limitations and ñnds that the retaliation claim is time-barred. i

B. Due Process Claims

1. Substantive Due Process

“Substantive due process analysis is appropriate only in cases in which government

arbitrarily abuses its power to deprive individuals of constitutionally protected rights.” Simi

Case 5:13-cv-00051 Document 27 Filed 09/04/2013ljßage 8 of 10

Inv. C0., Inc. v. Harris Cnty., Tex., 236 F.3d 240, 249 (5th Cir. 2000). Governmental action

will violate substantive due process guarantees if it lacks a rational basis. Id. citing FM Prop.

Operating C0. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996). The Complaint alleges that

Plaintiff “possesses a ñmdamental liberty interest... in being in public places like City Hall

and the Municipal Plaza Building.” Compl. 1I 5.3.3. In City of Chicago v. Morales, the

Supreme Court reiterated that an individual has a constitutionally protected right to be

physically present in a public place of his or her choosing. 528 U.S. 41 (1999). Plaintiff

alleges that the CTW interferes with this fundamental right “and is not narrowly tailored to

advance a law.” Plaintiff’ s claim is essentially that the Defendants use CTWs to arbitrarily

han individuals that they dislike from public places. Such allegations, if true, might constitute

an impingement on a ñlndamental right that lacks a rational basis. Finally, the Court must

consider Whether the statute of limitations bars the substantive due process claim. Plaintiff

frames his alleged harm as arbitrary exclusion from certain areas of the city. This vharm did

not occur when the CTW was issued, but instead persisted for the entire time it was in effect.

Therefore, Plaintiff has a viable substantive due process claim for the time period from

February l, 2011, to April 1, 2013.

2.' Procedural Due Process

Plaintiff asserts that the City violated his procedural due process rights. Plaintiff

alleges that the City deprived him of a liberty interest by prohibiting his participation in “any

of the myriad govemmental-individual interactions that regularly take place at City Hall and

city offices.” Compl. 1] 5.3.2. The Complaint further alleges that the City does not possess

substantive standards for when it Will issue a CTW. Compl. 11 5.4.1. Likewise, the city

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allegedly does not offer recipients of a CTW the chance to be heard. Id. Plaintiffs alleged

injury here stems therefore from: 1) a lack of substantive criteria for determining Who gets a

CTW, and 2) the city’s lack of a hearing. This harm was known to Defendant When-the CTW

was issued. Therefore, the procedural due process claim accrued on July l, 2009, and is now

time-barred.

C. Injunctive Relief

Plaintiff also seeks an injunction to prevent the city from enforcing the CTW against

him. Compl. 1l 8.3. Defendants argue that Plaintiff lacks standing for injunctive relief, because

the issue became moot when the CTW was removed. Doc. No. 9 1l 11. The Supreme Court

hasimade clear that the standards for standing and mootness are not identical. However, since

the Court finds that the claim for injunctive relief is moot, there is no need t0 conduct the

standing analysis.

The standard for determining Whether a case seeking injunctive relief has been mooted

by the defendant’s voluntary conduct is whether “subsequent events [make] it absolutely clear

that the allegedly Wrongful behavior could not reasonably be expected to recur.” Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000). With respect to Plaintiff,

Defendants voluntarily lifted the CTW in response to a court order in a related case.

Accordingly, as Defendants’ note, “there is no reasonable expectation that [Plaintiff] Will

be subject to another CTW.” Doc. No. 9 at 12. Plaintiff alleges that Defendants’ past

practice of retaliation gives him a “reasonable basis to fear additional retaliatory acts.” Compl.

1l 8.4. Taking these allegations as true, they nonetheless fall short of establishing an imminent

threat that Plaintiff is in danger of being subjugated again to an allegedly unconstitutional

y CTW. Plaintiff also argues that the claim is not moot because it is one “capable of repetition,

yet evading review.” Doc. No. 10 at ll. By partially denying the Motion to Dismiss on the

damages claims, the Court is currently engaged in “reviewing” the issues in this case.

Therefore, this doctrine does not apply and the Plaintiffs claims for injunctive relief are moot.

IV. CONCLUSION

In light of the foregoing analysis, Defendants’ Motion to Dismiss the claims for

damages and declaratory relief is DENIED in part with respect to the First Amendment free

speech and assembly claim, as well as for the substantive due process claim. Plaintiff may

bring a First Amendment claim for the alleged actions that took place between February 28,

2011, and April l, 2013. The First Amendment retaliation claim and the procedural due

process claim are time-barred. Accordingly, the Motion to Dismiss those counts is

GRANTED. Finally, the Court flnds that the Plaintiffs claim for injunctive relief is moot,

and therefore GRANTS the Motion to Dismiss as to that form of relief.

SIGNED this 4th day of September, 2013.

W

WHEEL ROD-RIGUEZ
UNITED STATES DISTRICT JUDGE '