Bethel et al v. City of Montgomery et al (MAG+)

Filing 71

REPORT AND RECOMMENDATIONS: 1. That the plaintiffs' motion for a preliminary injunction 39 be DENIED; 2. That the defendants' motion to dismiss 12 be DENIED; 3. The plaintiffs' motion to waive posting of security 43 and motion fo r judgment on the pleadings 48 be and are hereby DENIED; 4. That the plaintiffs' motion to admit exhibit and "Yy" and additional memorandum 44 be and is hereby GRANTED; 5. The plaintiffs' motions for a declaratory judgment 2 & 6 , motion for summary judgment 29 be DENIED and this case DISMISSED with prejudice; 6. That, for the reasons as stated, the defendants' motion for summary judgment 36 be GRANTED. Objections to R&R due by 3/16/2010. Signed by Honorable Charles S. Coody on 3/2/2010. (jg, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION O R L A N D O BETHEL and G L Y N I S BETHEL, P l a in tif f , v. C IT Y OF MONTGOMERY, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) )

C I V I L ACTION NO. 2:04cv743-MEF [W O ]

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE In this 42 U.S.C. § 1983 action, the pro se plaintiffs complain that the defendants v io la te d their First Amendment rights by requiring them to obtain a permit before exercising their right to free speech on a public right of way and by failing to act on a request for a p e rm it to exercise their right to free speech. The plaintiffs name as defendants the City of M o n tg o m e ry, the City of Montgomery Police Department, Chief of Police John Wilson, Lt. C o l. M.B. Pierce, Maj. C.J. Dixon, and Officer Roderick F. Byrne ("the defendants"). The d e f e n d a n t s are sued in their official and individual capacities. P en d in g before the court are the following: the plaintiffs' motions for a declaratory ju d g m e n t (docs. # 2 & 6); the defendants' motion to dismiss (doc. # 12) 1 ; the plaintiffs' m o tio n for summary judgment (doc. # 29); the defendants' motion for summary judgment ( d o c . # 36); the plaintiffs' motion for a preliminary injunction (doc. # 39); the plaintiffs'

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In light of this Recommendation, this motion is due to be DENIED as moot.

m o tio n to waive posting of security (doc. # 43) 2 ; the plaintiffs' motion to admit exhibit and " Y y" and additional memorandum (doc. # 44)3 ; the plaintiffs' motion for judgment on the p le a d in g s (doc. # 48); and the plaintiffs' motion to refuse to consent to the jurisdiction of the M ag istrate Judge (doc. # 51).4 P R O C E D U R A L HISTORY In the plaintiffs' "First Amended Complaint for Declaratory, Preliminary and P e rm a n e n t Injunctive Relief and Damages" (doc. # 5), they seek to enjoin the defendants f ro m enforcing the city ordinance that they maintain requires them to obtain a "Public A s s e m b ly Permit" before exercising their right to free speech on a public right of way, and from a c tin g in such a manner as to violate Plaintiff's liberties and rights to Freedom o f Speech, Freedom to Assembly, Free Exercise of Religion and Equal P r o te c tio n , guaranteed under the First and Fourteenth Amendments to the U n ite d States Constitution; . . . (A m e n d e d Compl., doc. # 5, at p. 2, ¶1). The plaintiffs make a facial and an "as-applied" c h a lle n g e to the ordinance.5 (Id. at p. 3, ¶ 2).
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This motion is due to be DENIED as moot. This motion is due to be GRANTED.

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On August 11, 2004, this case was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A). (Doc. # 24). The Magistrate Judge is not exercising jurisdiction over this matter based on the plaintiffs' consent. Any objections to the referral to the Magistrate Judge lack merit. Thus, this motion is due to be DENIED. Although the plaintiffs allege an "as-applied" challenge to the ordinance, the court looks to the plaintiffs' "cause of action for what it actually is, not for what the plaintiff would have it be." DA Mortgage, Inc. v. City of Miami Beach, 486 F.3d 1254, 1262 (11th Cir. 2007). The undisputed evidence presented by the parties demonstrate that the plaintiffs were permitted to protest and preach on May 28, 2004 on Montgomery, Commerce, Bibb and Coosa streets in downtown Montgomery. The plaintiffs were not
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In Counts I, II, and IV of the amended complaint, the plaintiffs allege that the d e f e n d a n t s violated their rights to freedom of speech, freedom of assembly, and free exercise o f their religion, respectively, under the First Amendment to the United States Constitution. In Count III, the plaintiffs complain that they were denied equal protection under the law in a c c o rd a n c e with the Equal Protection Clause of the Fourteenth Amendment. Finally, in C o u n t V, the plaintiffs allege that an unnamed defendant deprived them of "their right to be f re e from unreasonable seizure" by threatening to arrest them in violation of the Fourth A m e n d m e n t to the United States Constitution. T h e plaintiffs seek both monetary damages and injunctive relief on their claims. S p e c if ic a lly, the plaintiffs request declaratory relief and permanent injunction prohibiting the d e f e n d a n ts from enforcing the "City of Montgomery Application for a Public Assembly Permit" a n d to enjoin the Defendants . . . from obstructing Plaintiffs from exercising P lain tiff s' constitutional rights to street preach, evangelize, and hold signs with th e ir religious messages on public right-of-ways without first obtaining a " p e rm it," . . . (A m en d ed Compl., doc. # 5, at p. 35). T h e parties have filed cross motions for summary judgment on the grounds that there a re no genuine issues of material fact, and they are entitled to judgment as a matter of law. T h e legal positions taken by the parties, in light of the undisputed facts, are difficult to

arrested, accosted, or otherwise prohibited from exercising their right to protest or preach. Despite plaintiff Glynis Bethel's hyperbole and rhetoric that she was harassed by Montgomery City police officers, the evidence does not support her contention. Consequently, the ordinance was not applied to the plaintiffs to require them to have a permit. Thus, the plaintiffs' sole challenge to the ordinance is a facial challenge. Id.

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d esc rib e in any coherent fashion. Nonetheless, the central question for the Court is whether, o n the undisputed facts, either party is entitled to summary judgment. It is to that question th a t the Court now turns. FACTS P la in tiff s Orlando and Glynis Bethel are "HOLY GHOST filled Christians with s i n c e r e l y held religious beliefs . . . who desire to share their Christian faith in JESUS C H R IS T . . . through peaceful street preaching and street evangelizing. . ." (Amended C o m p l ., doc. # 5, at p. 7, ¶ 23). According to the plaintiffs, they have been permitted to p re a ch on street corners in Montgomery without the necessity of a permit and without police in te rf e re n c e . (Id. at p. 8, ¶ 28). The City of Montgomery Police Department "Traffic Division is responsible for a c c e p tin g and processing Public Assembly Permits." See City of Montgomery website, h ttp ://w w w .m o n tg o m e rya l.g o v /in d e x .a sp x ? p a g e = 1 1 4 6 , accessed February 22, 2010. A lth o u g h the website indicates that there is a "permits page" with more detail about public a ss e m b ly permits, the only information provided on the City's web page is the Public A s s e m b ly Permit Application. The application requires the name of the organization, the p e rs o n or organization responsible and the mailing addresses and phone numbers of the o r g a n i z a tio n and responsible persons. In addition, the Application reads as follows. It is respectfully submitted that a public assembly permit be issued to the ab o v e-n am ed person or organization. The following items of information are s u b m itte d :

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(1) (2 ) (3 ) (4 ) (5) (6 )

T h e purpose of the public assembly is: D a te of Assembly H o u rs : Begin End N u m b e r of Persons: F lo a ts: R o u te of parade and/or location of public assembly (attach map if n ee d ed ): D e sc rip tio n as to size and wording of all signs, placards, flags or cards to be carried and the names and words of all songs to be sung, chants to be chanted and cheers to be yelled:

(P l's Ex. A). T h e re is a space on the application for the permit to be granted or denied by the City o f Montgomery Chief of Police. The application further cautions that the request for a permit "m u st be submitted at least ten (10) days before the event is to take place. If barricades are n ee d ed for your event, there is a thirty-five ($35.00) dollar charge that must be paid before th e y can be ordered." (Id.) The application contains additional information regarding the C ity's policy about reimbursement of all costs incurred by the City as the result of a parade o r similar event on the City's streets. (Id.) Finally, the application explains the appeals p ro c e ss if the permit application is denied. If your permit has been denied, you have the right to appeal this denial to the C i ty Council. This appeal must be filed with the City Clerk within three (3) d a ys from your notification of denial. ( I d .) . A lth o u g h the plaintiffs detail several instances in which they have preached in M o n tg o m e ry with a permit, their claims spring from their request for a permit for May 28 and

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2 9 , 2004.6 The plaintiffs first requested and received a permit to hold a "religious protest" o n June 23, 2004. (Id. at p. 14, ¶ 60). They made this request on May 10, 2004. (Id.) Some tim e thereafter, the plaintiffs discovered that the City of Montgomery would be hosting " Ju b ile e CityFest" on May 28 and 29, 2004. Consequently, on May 17, 2004, the plaintiffs fa x ed to the defendants another assembly permit application requesting a permit for a "re lig iou s protest" during Jubilee CityFest (hereinafter referred to as the "CityFest protest").7 (Id . at ¶ 61). The application for a permit for the CityFest protest was nearly identical to the a p p lic a tio n for the June 23 "religious protest" with one exception: the CityFest protest a p p lic a tio n sought permission to protest on streets different from the planned protest on June 2 3 , 2004. (Id. at ¶ 62). For the CityFest protest, the plaintiffs sought to protest and preach o n "Montgomery, Commerce, Bibb and Coosa streets (downtown)." (Id. at ¶ 62). On May 20, 2004, Major Dixon telephoned the plaintiffs and informed them that they " w o u ld have to pick other streets because "Jubilee" had the rights to the streets listed on the P la in tif f s' permit application." (Id. at p. 14-15, ¶ 63). After studying the Jubilee CityFest's d e sig n a te d site map on the festival's website, the plaintiffs determined that their selection of s tre e ts was not encompassed within Jubilee's boundaries. (Id. at p. 15, ¶ 65).

On at least three occasions, the plaintiffs applied for, and were granted, permits to protest and preach on streets in Montgomery, Alabama. Specifically, the plaintiffs submitted applications for permits dated February 5, 2004, May 4, 2004, and November 2, 2005, all of which were granted by the Chief of Police. The application was dated May 16, 2004. The plaintiffs' refer to this permit application as the "May 16, 2004" application. Consequently, for clarity's sake, the court will also utilize the May 16 date to refer this application.
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O n May 21, 2004, Chief of Police Wilson informed the plaintiffs, by facsimile, that th e ir permit application was "pending" until they provided alternative locations for their p lann ed CityFest protest. (Amended Compl., Ex. E). Specifically, the plaintiffs were a d v is e d [ i]n response to your permit, I understand Major Dixon has given you some a lte rn a tiv e locations to your permit. At this time we will put your permit on h o ld until we receive a location of the streets you desire. Please let us know a s soon as possible of the location you have chosen. We will be waiting for yo u r response. (Id . at 1). O n May 21, 2004, the plaintiffs responded to the defendants' facsimile. T o reiterate, as discussed with Major Dixon, we are not going to change the lo c a tio n of the streets (Montgomery, Commerce, Bibb and Coosa) so there is n o need for us to choose an "alternative location." Again per your c o rre sp o n d e n c e that was faxed to us today the "location of the streets you d e s ir e " are the same streets (Montgomery, Commerce, Bibb and Coosa) that a re on the permit dated for 5/16/04. (A m en d ed Compl., Ex. G). A f te r noting "PENDING" and the date, May 21, 2004, on the bottom of the permit ap p lica tio n , the city took no further action on the plaintiffs' application for a permit. (Pl's E x . E.) O n May 28, 2004, the plaintiffs conducted a peaceful protest and preached on the s tre e ts they had requested. Glynis Bethel carried signs with the messages "Repent Whore," " R e p e n t or Burn in Hell Drunkards," and "Abortion is Killing . . . Repent" while Orlando B ethe l preached. Although the plaintiffs were observed and videotaped by two Montgomery 7

C ity police officers, they were in no way impeded in their ability to peacefully protest and p re a ch their message of repentance. At one point, one of the officers asked Glynis Bethel to stay on the grass median; she refused citing her constitutional rights to protest on public p ro p e rty. No adverse action was taken against Glynis Bethel as a result of her refusal. She c ontinu e d protesting, and Orlando Bethel continued preaching. At no time were the plaintiffs a s k e d to present a permit. STANDARD OF REVIEW 1 . Injunctive Relief. The plaintiffs seek both a preliminary and permanent injunction e n jo in in g the defendants from enforcing the Ordinance requiring them to secure a permit b e f o re protesting or preaching in Montgomery, Alabama. A preliminary injunction is an e x t ra o r d in a r y and drastic remedy which should not be granted unless the movant clearly c a rrie s the burden of persuasion as to all prerequisites. United States v. Jefferson County, 7 2 0 F.2d 1511 (11 th Cir. 1983) (emphasis added). A district court may grant injunctive relief only if the moving party shows that: (1 ) it has a substantial likelihood of success on the merits; (2) irreparable in ju ry will be suffered unless the injunction issues; (3) the threatened injury to th e movant outweighs whatever damage the proposed injunction may cause the o p p o s in g party; and (4) if issued, the injunction would not be adverse to the p u b lic interest. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11 th Cir. 2004) quoting Siegel v. L e P o r e , 234 F.3d 1163, 1176 (11 th Cir. 2000) (en banc) (per curiam). See also This That and O th e r Gift & Tobacco, Inc. v. Cobb County, Ga.,285 F.3d 1319, 1321-1322 (11 th Cir. 2002); H o r to n v. City of St. Augustine, Fla., 272 F.3d 1318, 1326 (11 th Cir. 2001); Telef v. Reno, 8

1 8 0 F.3d 1286, 1295 (11 th Cir. 1999); American Red Cross v. Palm Beach Blood Bank, Inc., 1 4 3 F.3d 1407 (11 th Cir. 1998); Haitian Refugee Ctr., Inc. v. Christopher, 43 F.3d 1431 (11 th C ir. 1995); Levi Strauss & Co. v. Sunrise Int'l Trading Inc., 51 F. 3d 982 (11 th Cir. 1995); C a te v. Oldham, 707 F.2d 1176 (11 th Cir. 1983). "The standard for a permanent injunction is essentially the same as for a preliminary injunction except that the plaintiff must show a c t u a l success on the merits instead of a likelihood of success." Klay, 376 F.3d at 1097 q u o tin g Siegel, 234 F.3d at 1213. Finally, "most courts do not consider the public interest e le m e n t in deciding whether to issue a permanent injunction." 8 Id. T h e requesting party's failure to demonstrate a "substantial likelihood of success on th e merits" may defeat the party's claim, regardless of its ability to establish any of the other e l e m e n ts . See Church v. City of Huntsville, 30 F.3d 1332, 1342 (11 th Cir. 1994). In other w o r d s , irreparable injury must be demonstrated by the plaintiffs to succeed on their claims. H e re , the court readily concludes that the plaintiffs fail to demonstrate irreparable injury. T h e plaintiffs have been permitted to protest and preach and were permitted to do so on the d a y in question without any adverse consequences. The plaintiffs' claims that they may be a rre ste d if they protest or preach without a permit are purely speculative. Consequently, the p la in tif f s have failed to demonstrate that they meet the second prerequisite for the issuance o f a preliminary injunction. 2. Summary Judgment. Under FED. R. CIV. P. 56(c), summary judgment is proper

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The Third Circuit is the exception. See Shields v. Zuccarini, 254 F.3d 476, 482 (3rd Cir. 2001).

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" if the pleadings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material fact and that th e moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U .S . 317, 322 (1986).9 The party moving for summary judgment "always bears the initial r e sp o n s ib i lity of informing the district court of the basis for its motion, and identifying those p o rtio n s of the `pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any,' which it believes demonstrate the absence of a genuine is s u e of material fact." Id. at 323. The movant may meet this burden by presenting evidence showing there is no dispute o f material fact, or by showing that the nonmoving party has failed to present evidence in s u p p o rt of some element of its case on which it bears the ultimate burden of proof. Id. at 3 2 2 -3 2 4 . If the movant succeeds in demonstrating the absence of a material issue of fact, the b u rd e n shifts to the non-movant to establish, with evidence beyond the pleadings, that a g e n u in e issue material to the non-movant's case exists. See Fitzpatrick v. City of Atlanta, 2

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In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the court stated:

"[Where the nonmoving party will bear the burden of proof at trial on a dispositive issue...Rule 56(e)...requires the nonmoving party to go beyond the pleadings and by...affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial. . . .We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment...Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c) except the mere pleadings themselves. . . . Id. at 324.

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F .3 d 1112, 1115-17 (11 th Cir. 1993); see also FED. R. CIV. P. 56(e). ("When a motion for su m m ary judgment is made and supported ... an adverse party may not rest upon the mere a lleg a tio n s or denials of [his] pleading, but [his] response ... must set forth specific facts s h o w i n g that there is a genuine issue for trial."). What is material is determined by the s u b s ta n tiv e law applicable to the case. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1 9 8 6 ). A dispute of material fact "is `genuine' . . . if the evidence is such that a reasonable ju ry could return a verdict for the nonmoving party." Id. at 248. The non-movant "must do m o re than simply show that there is some metaphysical doubt as to the material facts." M a ts u s h ita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the n o n -m o v a n t must present "affirmative evidence" of material factual conflicts to defeat a p ro p e rly supported motion for summary judgment. Anderson, 477 U.S. at 257. If the n o n - m o v a n t 's response consists of nothing more than conclusory allegations, the court must e n te r summary judgment for the movant. See Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11 th Cir. 1997); Harris v. Ostrout, 65 F.3d 912 (11 th Cir. 1995). H o w e v e r, if there is a conflict in the evidence, "the evidence of the non-movant is to b e believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. a t 255; Molina v. Merritt & Furman Ins. Agency, 207 F.3d 1351, 1356 (11 th Cir. 2000). After th e nonmoving party has responded to the motion for summary judgment, the court must g ra n t summary judgment if there remains no genuine issue of material fact and the moving

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p a rty is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). With these principles o f law in mind, the court will determine now whether summary judgment is appropriate and s h o u ld be granted. D IS C U S S IO N A . First Amendment Violations I n Counts I, II, and IV of the amended complaint, the plaintiffs allege that their First A m e n d m e n t rights to freedom of speech, assembly and exercise of religion, respectively, h a v e been infringed upon by the defendants' actions. The defendants deny that the plaintiffs' c o n stitu tio n a l rights were violated. Furthermore, the defendants argue that the plaintiffs only c h a llen g e the permit application, not MONTGOMERY, ALA., CODE §§ 25-157 through 25-175 (1 9 8 3 ), that apply to Parades and Processions. The court quickly disposes of this argument w h ic h , quite frankly, is ludicrous. The pro se plaintiffs are entitled to a liberal construction o f their claims. Hughes v. Rowe, 449 U.S. 5 (1980). But more pointedly, any fair reading o f their complaint shows that the plaintiffs very clearly challenge the application requirement a s well as the ordinances that mandate a permit to protest or preach on the streets of M o n tg o m e ry County. In fact, the plaintiffs repeatedly assert that they are bringing a facial a n d "as-applied" challenge to the ordinance. See Amended Compl. at ¶¶ 2, 5, 97, 108, 114, 1 1 5 , 116, 117, 118, 119, 120, 121, 122, 130, 132, 133, 134, 135, 136, 137, 138, 139, 140, 1 4 2 , 157, 165, 166, 167, 168, 169, 170, 171, 172). The court construes the plaintiffs' alleg atio n s as a challenge to the ordinances that require them to submit an application for a

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p e rm it. The First Amendment of the United States Constitution provides that Congress shall make no law respecting an establishment of religion, or p ro h ib itin g the free exercise thereof; or abridging the freedom of speech, or of th e press, or the right of the people peaceably to assemble, and to petition the G o v e r n m e n t for a redress of grievances. U .S . CONST. amend. I. The First Amendment is made applicable to state and local

g o v e rn m e n t by the Fourteenth Amendment. See Wallace v. Jaffree, 472 U.S. 38, 49 (1985). T h e law is well settled that "the oral and written dissemination of . . . religious views a n d doctrines is protected by the First Amendment." Heffron v. Int'l Soc. for Krishna C o n s c io u s n e ss , Inc., 452 U.S. 640, 647 (1981). Moreover, public streets and sidewalks have b e e n held to be the "quintessential public forum," in which the "government may not prohibit a ll communicative activity." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 3 7 , 45 (1983). See also Frisby v. Schultz, 487 U.S. 474, 480 (1988) ("public streets as the a rc h e typ e of a traditional public forum.") It is also well established, "however, that the First Amendment does not guarantee the rig h t to communicate one's views at all times and places and in any manner that may be d e sire d ." Heffron, 452 U.S. at 647. [E]ven in a public forum the government may impose reasonable restrictions o n the time, place, or manner of protected speech, provided the restrictions " a re justified without reference to the content of the regulated speech, that they a re narrowly tailored to serve a significant governmental interest, and that they le a v e open ample alternative channels for communication of the information." W a r d v. Rock Against Racism, 491 U.S. 781, 791 (1989). See also Frisby, 487 U.S. at 481 13

q u o t in g Perry, supra. 1 . Facial Challenge to the Ordinance.1 0 The plaintiffs make a facial challenge to th e City's ordinance that requires them to apply for a public assembly permit. "A facial c h a lle n g e , as distinguished from an as-applied challenge, seeks to invalidate a statute or re g u la tio n itself." United States v. Frandsen, 212 F.3d. 1231, 1235 (11 th Cir. 2000). "The g e n e r a l rule in this circuit is that for "[a] facial challenge to be successful, [a plaintiff] `must e sta b lis h that no set of circumstances exists under which the [law] would be valid.'" Id. The Montgomery ordinance applicable to parades and permits requires persons to s e c u re a permit before participating in a public assembly. See MONTGOMERY, ALA., CODE § § 25-157 through 25-175 (1983). Specifically, the ordinance defines a parade as "any p a ra d e , march, ceremony, show, exhibition, pageant, footrace, or procession of any kind, or a n y similar display, in or upon any street, park or other place in the city." See

M ONTGOME RY, ALA., CODE § 25-157, Defs' Ex. 1. The ordinance further defines a public a ss e m b ly as "any gathering of persons on public streets or other public places for the purpose o f conducting social, recreational or residential functions." (Id.) (emphasis added). Sections 2 5 -1 5 8 through 168 govern the issuance of a permit, the process of submitting a permit
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Although the defendants assert in their motion for summary judgment that the plaintiffs do not have standing to challenge the ordinance, (Defs' Mot. for Summ. J., doc. # 36, at 1; Defs' Br., doc. # 37, at 8), they allege no facts in support of this claim and their brief contains no discussion of the applicable law related to the issue of standing. The argument of counsel is not evidence. It is not the court's responsibility to seek out facts in support of a party's position; rather, the burden is on the parties to formulate arguments and present facts in support of their positions. See generally Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994). More importantly, however, it would appear to any reasonable person reading the ordinance that a permit was necessary based upon the language of the ordinance as well as the actions of the defendants.

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a p p lic a tio n , the standards for issuing a permit, and appeals procedure if a permit is denied. ( I d .) In their brief, the defendants argue that [ t]h e public assembly permit requirement and process, as set out in the M o n tg o m e ry Municipal Code, is for parades and public assemblies, not in d iv id u a ls . . . . P lain tiff s contend, in error, that an individual must get a permit prior to e x e rc is in g free speech in the City of Montgomery. Plaintiffs have requested a n d had been granted permits On (sic) February 27, 2004 and May 10, 2004. P la in tif f s have always indicated more than 5 or more individuals on the p e r m its . P la in tif f s were never denied their right to public speech however due to another group, Jubilee CityFest, already present at the requested location, D e f en d a n ts suggested another location for Plaintiffs to assemble. Plaintiffs re f u se d and exercised their constitutional right to free speech on the streets th e y requested in front of Jubilee CityFest entrance gates. . . . T h e statutes of the municipal code which apply to parades and p ro c e ss io n s in the City do not apply to individuals wanting to express their c o n s titu tio n a l rights and are not an unconstitutional prior restraint. . . . P la in tif f s allege that the City of Montgomery Police Department W e b site (sic) requires an individual apply for a permit prior to exercising h is/h e r right to free speech. However, it is clear that the law does not apply to a n individual. Plaintiffs' claims of unconstitutional prior restraint should be d is m is s e d and summary judgment in favor of Defendants is due to be granted. (D ef s' Br., doc. # 37, at 8 & 9). T h e positions taken by the defendants are startlingly inconsistent. On one hand, the d e f e n d a n ts argue that the ordinance does not apply to individuals and that the plaintiffs did n o t need a permit to protest or preach on May 28, 2004. On the other hand, the defendants a rg u e that the plaintiffs were not denied their right to protest because they had applied for a n d were granted permits on other dates. The defendants can't have it both ways: either the

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p la in tif f s needed a permit or they didn't. Moreover, according to the defendants, the p la in tif f s were not denied their right to assemble on May 28, 2004; the Chief of Police m e re ly "suggested another location for Plaintiffs to assemble." (Defs' Br. at 8). This a rg u m e n t simply is a blatant misrepresentation of the facts which shows that the responsible o f f ic ia ls told the plaintiffs their permit application was "pending" their selection of other lo c a tio n s . Any reasonable person would understand that no permit would be issued until they c o m p lie d . That the plaintiffs were allowed to protest and preach on this occasion is of no m o m e n t to their facial challenge. T h e defendants first assert that the plaintiffs did not need a permit for their planned p ro tes t and preaching on May 28, 2004. To be entitled to summary judgment, the defendants m u s t demonstrate that there are no disputed issues of material fact and they are entitled to ju d g e m e n t as a matter of law. The broad conclusory arguments are not appropriate The

s u b s titu te s for evidence which meets the requirements of FED. R. CIV. P. 56.1 1

d e f en d a n ts have submitted no evidence in support of their position that the plaintiffs did not n e e d a permit. Rather, the undisputed evidence demonstrates that the plaintiffs were never to l d they did not need a permit to protest on May 28, 2004, and the facts show that in the past they were granted a permit. When the plaintiffs submitted their May 16 application for a p e rm it to protest and preach on May 28, 2004, the defendants engaged in conduct that im p lie d that the plaintiffs needed a permit. The plain language of the ordinance also conveys

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FED. R. CIV. P. 56(e) requires that evidence be of "such facts as would be admissible in evidence."

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to any reasonable person that to engage in a public assembly on the streets of the City of M o n tg o m e ry, the person would be required to have to a permit. Section 25-158 is clear: "No p e rs o n shall engage in, participate in, aid, form or start any parade or public assembly, unless a parade or public assembly permit shall have been obtained from the chief of police." M ONTGOME RY, ALA., CODE § 25-158 (1983) (emphasis added). The ordinance further d e f i n e s a public assembly as "any gathering of persons on public streets or other public p la c e s for the purpose of conducting social, recreational or residential functions." M ONTGOME RY, ALA., CODE § 25-157 (1983) (emphasis added). To the extent that the d e f e n d a n ts argue that the ordinance does not apply to the plaintiffs because it does not apply to individuals, a clear reading of the ordinance demonstrates that the defendants are simply w r o n g . The ordinance prohibits any person from engaging in a public assembly without first o b ta in in g the requisite permit. The defendants also appear to suggest that one reason the plaintiffs were required to o b tain a permit for other protests was the number of persons listed on their permit a p p lic a tio n . (Defs' Mot. for Summ. J. at 5) "Plaintiffs, in the past, have submitted a p p lic a tio n s for five or more person to assemble and have been granted permits." (Id). The o rd in a n c e does not base the need for a permit on the number of persons attending the a s s e m b ly.1 2 See MONTGOMERY, ALA., CODE § 25-157 (1983). Consequently, to the extent

In fact, a specific numeric delineation is contained only in the definition of a footrace. "Footrace is an athletic event involving two (2) or more persons for the purpose of competition, recreation, or for the purpose of promotional publicity." MONTGOMERY, ALA., CODE § 25-157 (1983) (emphasis in original).

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th a t the defendants argue that they are entitled to summary judgment because the plaintiffs d id not need a permit for their planned protest and preaching on May 28, 2004, their motion o n this basis is due to be denied. 2. Prior restraint. Now, the court turns to the plaintiffs' argument that the City's o rd in a n c e requiring a permit is an unconstitutional prior restraint on their First Amendment rig h ts . "A prior restraint on speech prohibits or censors speech before it can take place." C o o p e r v. Dillon, 403 F.3d 1208, 1215 (11 th Cir. 2005) (internal citations omitted). B e c a u se statutes silencing speech before it happens are inimical to the tenets o f free expression underlying a free society, these statutes are characterized as p rio r restraints on speech and are subjected to strict scrutiny. See Burk v. A u g u s ta - R ic h m o n d County, 365 F.3d 1247, 1251 (11 th Cir. 2004). Because s ta tu te s representing governmental favoritism of preferred speech or s u p p re s s io n of disfavored speech are likewise antithetical to a free society, th e s e content-based restrictions are also subjected to strict scrutiny. See Boos v . Barry, 485 U.S. 312, 321, 10 S.Ct. 1157, 1164, 99 L.Ed.2d 333 (1988). S t a t u t e s which prescribe the time, place, and manner in which First A m e n d m e n t rights may be exercised irrespective of the message being c o n v e ye d are deemed to be content-neutral statutes which are analyzed under a lower standard of scrutiny. See City of Renton v. Playtime Theatres, Inc., 4 7 5 U.S. 41, 47, 106 S.Ct. 925, 928, 89 L.Ed.2d 29 (1986). Id ., at 1214-15. A n ordinance also constitutes a prior restraint when public officials have the "power to deny use of a forum in advance of actual expression." Ward, 491 U.S. at 795 n. 5 (1989). " P rio r restraints have also been found where the government has unbridled d is c r e t i o n to limit access to a particular public forum. See United States v. F r a n d s e n , 212 F.3d 1231, 1236-37 (11 th Cir. 2000) (finding prior restraint here a National Park Service licensing scheme gave park official unlimited power to grant or deny permits to protest in a park).

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C o o p e r, 403 F.3d at 1215. B e c a u s e the ordinance requires the Chief of Police to approve the permit request b e f o re the speech occurs, the ordinance constitutes a "prior restraint on speech." Forsyth C o u n ty , Ga. v. Nationalist Movement, 505 U.S. 123, 130 (1992). See also Burk v. AugustaR ich m o n d County, 365 F.3d 1247, 1250 (11th Cir. 2004) (Ordinance that requires permission to protest or demonstrate constitutes a prior restraint on speech.); Frandsen, 212 F.3d at 1 2 3 6 -3 7 ("A prior restraint of expression exists when the government can deny access to a f o ru m before expression occurs."). The streets of Montgomery are "quintessential public f o ru m s ." Nationalist Movement v. City of Cumming, Ga. 92 F.3d 1135, 1139 (11 th Cir. 1 9 9 6 ). Thus, "the City's right to limit expressive activity on these streets is "sharply c irc u m s c rib e d ." " Id. Although prior restraints are presumptively invalid, the defendants can overcome that p re su m p tio n if the ordinance at issue contains certain safeguards, including contentn e u tra lity. "When the government seeks regulation that restricts content neutral expressive a c tiv ity in a public forum, the First Amendment requires that the regulation satisfy the time, p la c e, and manner test." Int'l Caucus of Labor Comms. v. City of Montgomery, 111 F.3d 1 5 4 8 , 1550 (11 th Cir. 1997). T h e principal inquiry in determining content neutrality, in speech cases g e n e ra ll y and in time, place, or manner cases in particular, is whether the g o v e rn m e n t has adopted a regulation of speech because of disagreement with th e message it conveys. The government's purpose is the controlling c o n s id e ra tio n . A regulation that serves purposes unrelated to the content of e x p re s s io n is deemed neutral, even if it has an incidental effect on some 19

s p e a k ers or messages but not others. Government regulation of expressive a c tiv i ty is content neutral so long as it is "justified without reference to the c o n te n t of the regulated speech." W a r d , 491 U.S. at 791 (internal citations omitted). See also Hill v. Colorado, 530 U.S. 703, 7 1 9 (2000). See also Burk, 365 F.3d at 1251 ("Prior restraints are presumptively

u n c o n stitu tio n a l and face strict scrutiny. Nonetheless, a prior restraint may be approved if it qualifies as a regulation of time, place, and manner of expression rather than a regulation o f content."). Thus, the court turns to the question of whether the ordinance is contentn e u tr a l. "[A] regulation that serves purposes unrelated to the content of expression is deemed n e u tra l, even if it has an incidental effect on some speakers or messages but not on others." C o o p e r, 403 F.3d at 1215 quoting Ward, 491 U.S. at 791. The ordinance requires, in p e rtin e n t part, the following. (2) Contents. The application for a parade or public assembly permit shall set f o r the following information: a. b. T h e name, address and telephone number of the person seeking to conduct such parade or public assembly. If the parade of public assembly is proposed to be conducted for, o n behalf of, or by any organization, the name, address and te le p h o n e number of the headquarters of the organization, and o f the authorized and responsible heads of such organization. T h e name, address and telephone number of the person who will b e the parade or public assembly chairman who will be re sp o n sib le for its conduct. T h e date when the parade or public assembly is to be conducted. T h e hours when such parade or public assembly will start and te rm in a te . A statement as to whether the parade or public assembly will 20

c.

d. e. f.

g. h. i. j.

o c c u p y all or only a portion of the width of the streets proposed to be traversed. T h e location by streets of any assembly areas for such parade or p u b lic assembly. T h e time at which units of the parade or public assembly will b e g in to assemble at any such assembly area or areas. T h e interval of space to be maintained between units of such p a ra d e . If the parade or public assembly is designed to be held by and on b e h a lf of or for, any person other than the applicant, the a p p lic a n t for such permit shall file with the chief of police a c o m m u n ic a tio n in writing from the person proposing to hold the p a ra d e or public assembly authorizing the applicant to apply for th e permit on his behalf.

M ONTGOME RY, ALA., CODE § 25-159 (1983). The Montgomery ordinance neither targets the content of nor attempts to regulate s p e e ch . Rather, the ordinance regulates the place, time and manner of public assembly in the C ity of Montgomery. There is no evidence, and the plaintiffs point to none, that suggests that t h e ordinance was adopted because the defendants disagreed with or were attempting to c o n tro l the message of any protesters. The ordinance's objectives are not aimed at the c o n ten t of the plaintiffs' message. "[Go]vernment regulation of expressive activity is " c o n te n t neutral" if it is justified without reference to the content of the regulated speech." H ill, 530 U.S. at 720. The ordinance applies to all demonstrators regardless of their message o r speech. The Montgomery ordinance "places no restrictions on - and clearly does not p r o h ib it - either a particular viewpoint or any subject matter that may be discussed by a s p e a k er." Id., at 723. Finally, the City's interest in protecting its streets and its citizenry is n o t related to the content of any speech. Consequently, the court concludes the ordinance is 21

c o n ten t-n e u tra l. In addition to content-neutrality, "a time, place, and manner regulation [must] contain a d e q u ate standards to guide the official's decision and render it subject to effective judicial re v ie w ." Thomas v. Chicago Park Dist., 534 U.S. 316, 323 (2002). E v e n a facially content-neutral time, place, and manner regulation may not vest p u b lic officials with unbridled discretion over permitting decisions. See S h u ttle sw o r th v. Birmingham, 394 U.S. 147, 150-51. 89 S.Ct. 935, 938-39, 22 L .E d .2 d 162 (1969); Forsyth County v. Nationalist Movement, 505 U.S. 123, 1 3 0 -3 1 , 112 S.Ct. 2395, 2401-02, 120 L.Ed.2d 101 (1992). Excessive d isc re tio n over permitting decisions is constitutionally suspect because it c re a te s the opportunity for undetectable censorship and signals a lack of n a rr o w tailoring. See id.; Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F .3 d 1358, 1362 (11 th Cir. 19990; Miami Herald Pub. Co. v. City of H a lla n d a le , 734 F.2d 666, 675 (11 th Cir. 1984). Therefore, time, place, and m a n n e r regulations must contain "narrowly drawn, reasonable and definite s ta n d a rd s ," Thomas, 534 U.S. at 324, 122 S.Ct. at 781, "to guide the official's d e c is io n and render it subject to effective judicial review," id. at 323, 122 S.Ct. a t 780. B u r k , 365 F.3d at 1256. T h e Montgomery ordinance mandates the standard for issuance of a permit for a p a ra d e or public assembly. (a) The chief of police shall issue a permit as provided for hereunder when, f ro m a consideration of the application and from such other information as m a y otherwise be obtained, he finds that: (1 ) T h e conduct of the parade or public assembly will not substantially in ter ru p t the safe and orderly movement of other traffic contiguous to its route or location. T h e conduct of the parade or public assembly will not require the d iv e rsio n of so great a number of police officers of the city to properly p o l ic e the line of movement and the areas contiguous thereto as to 22

(2 )

p re v e n t normal police protection to the city. (3 ) T h e conduct of the parade or public assembly will not require the d iv e rs io n of so great a number of ambulances as to prevent normal a m b u l a n c e service to portions of the city other than that to be occupied b y the proposed line of march and areas contiguous thereto. T h e concentration of persons, animals and vehicles at assembly points o f the parade will not unduly interfere with proper fire and police p ro te c tio n of, or ambulance service to, areas contiguous to such a s s e m b l y areas. T h e conduct of such parade or public assembly will not interfere with th e movement of fire fighting equipment enroute to a fire. T h e conduct of the parade or public assembly is not reasonably likely to cause injury to persons or property, to provoke disorderly conduct or c re a te a disturbance. T h e parade is scheduled to move from its point of origin to its point of te rm in a tio n expeditiously and without unreasonable delays enroute. T h e parade or public assembly is not to be held for the sole purpose of a d v e rtisin g any product, goods or event, and is not designed to be held p u re ly for private profit. T h e chief of police, if he deems necessary, may require the applicant to d e sig n a te a certain number of parade marshals who shall be responsible fo r conducting the parade or assembly in an orderly manner.

(4 )

(5 )

(6 )

(7 )

(8 )

(9 )

M ONTGOME RY, ALA., CODE § 25-160 (1983) (emphasis added). While ordinances that "vest unbridled discretion" in a city official to determine w h e th e r to grant or deny a permit"are constitutionally suspect, see Ward, 491 U.S. at 793, th e court concludes that the ordinance at issue does not vest such discretion in the Chief of P o lic e . The ordinance does not allow the Chief of Police to consider the content of the

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s p e e ch to be uttered during the parade or public assembly. Rather, the ordinance requires the C h ie f of Police to consider the safety and protection of citizens, protesters, and the a v a ilab ility of community resources. The Chief of Police must issue the permit unless he f in d s that the parade or public assembly would disrupt the ability of the City to provide esse n tial services.1 3 The grounds upon which the Chief of Police may deny the permit are " re a so n a b ly specific and objective, and do not leave the decision "to the whim of the a d m i n is tra to r." Thomas, 534 U.S. at 324. "Regulations of the use of a public forum that e n su re the safety and convenience of the people are not "inconsistent with civil liberties but . . . [are] one of the means of safeguarding the good order upon which [civil liberties] u ltim a te ly depend." Id., at 323 quoting Cox. v. New Hampshire, 312 U.S. 569, 574 (1941). T h u s , the court concludes that the ordinance provides adequate standards to guide the Chief o f Police's decision and allow his decision to be subjected to effective review. The City of Montgomery "may enforce reasonable restrictions on the time, place and m a n n e r of the speech if [the restrictions] are "content neutral, are narrowly tailored to a c h ie v e a significant government interest, and leave open ample alternative channels of c o m m u n ic a tio n ." Nationalist Movement, 92 F.3d at 1139. The court now turns to whether

Although the plaintiffs do not challenge the ordinance on the basis of overbreadth, "the Supreme Court has permitted facial challenges based on overbreadth where an ordinance delegates overly broad discretion to enforcement officers, . . ." DA Mortgage, Inc., 486 F.3d at 1269 quoting United States v. Salerno, 481 U.S. 739, 745 (1987). Even if the court were to construe the plaintiffs' complaint as raising an overbreadth argument, the defendants would be entitled to judgment as a matter of law as the ordinance clearly cabins the discretion of the police chief and mandates the issuance of permits except in limited specific circumstances.

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th e "[t]he city's regulation is also "narrowly tailored to serve a significant governmental in te re st." Ward, 491 U.S. at 796. See also Hill, 530 U.S. at 725. The ordinance serves the g o v e rn m e n tal interest of protecting citizens, ensuring the availability of community re s o u rc e s , and coordinating the use of public property. See Central Fla. Nuclear Freeze C a m p a ig n v. Walsh, 774 F.2d 1515, 1528 (11 th Cir. 1985) (government has a compelling in te re st in protecting the safety of its citizens.) In addition, "[s]tates and municipalities p lain ly have a substantial interest in controlling the activity around certain public and private p la c es ." Hill, 530 U.S. at 728. Finally, the ordinance does not have to be the least restrictive o r least intrusive means of serving the City's objective. [W]e reaffirm today that a regulation of the time, place, or manner of protected s p e e ch must be narrowly tailored to serve the government's legitimate, c o n te n t-n e u tra l interests but it need not be the least restrictive or least intrusive m e a n s of doing so. Rather, the requirement of narrow tailoring is satisfied "as lo n g as the . . . regulation promotes a substantial government interest that w o u ld be achieved less effectively absent the regulation." W a r d , 491 U.S. at 798-99. The court concludes that the ordinance is narrowly tailored to p ro tec t and promote the City's interest in protecting its citizens, managing the use of public p r o p e r ty and ensuring the availability of community protective services. F in a lly, the court considers whether the ordinance "leave[s] open ample alternative c h a n n els for communication of the information." Ward, 491 U.S. at 791; Frisby, 487 U.S. a t 481 quoting Perry, supra, 460 U.S. at 45. The plaintiffs allege no facts and makes no a rg u m e n t in response to the defendants' motion for summary judgment that the ordinance p ro v id e s "ample alternative channels" for communication. The plaintiffs have failed to state 25

w ith any coherent degree of specificity why the ordinance does not provide ample alternative o p p o rtu n ity to communicate their religious beliefs. The ordinance does not ban all protesting or street preaching. Rather, the ordinance a llo w s demonstrations and protests on the City's streets provided that the demonstration or a ss e m b ly does not impede traffic and emergency vehicles. Clearly, the ordinance "preserves a m p le alternative channels of communication." See Frisby, 487 U.S. at 484. For the reasons as stated, the court concludes that although the ordinance is a prior re stra in t of speech, the ordinance is a reasonable time, place and manner restriction that is " ju s ti f ie d without reference to the content of the regulated speech, that . . . [is] narrowly tailo re d to serve a significant governmental interest, and that . . . leave[s] open ample a lte rn a tiv e channels for communication of the information." Ward, 491 U.S. at 791. C o n se q u e n tly, the court concludes that the ordinance does not violate the First Amendment, a n d the plaintiffs' facial challenge to the ordinance fails. B . Equal Protection Claims U n d e r the Equal Protection Clause of the Fourteenth Amendment, "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. am en d . XIV § 1. The plaintiffs' amended complaint states, in a convoluted and conclusory f a sh io n , that the defendants' conduct violated their equal protection rights. To establish a claim cognizable under the Equal Protection Clause, the plaintiffs must allege that they are s im ila rly situated with other persons who were treated differently and that the reason for the

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d if f ere n tia l treatment was based on race, religion, national origin, poverty or some other c o n s titu tio n a lly protected interest. Jones v. Ray, 279 F.3d 944, 947 (11 th Cir. 2001); D a m ian o v. Florida Parole & Probation Comm'n, 785 F.2d 929 (11 th Cir. 1986). A d d itio n a lly, to succeed on an equal protection claim, the plaintiffs must prove the existence o f discriminatory intent; arbitrary action without discriminatory intent is insufficient to d e m o n s tra te a violation of the Equal Protection Clause. Jones v. White, 992 F.2d 1548, 1573 (1 1 th Cir. 1993); E & T Realty v. Strickland, 830 F.2d 1107 (11 th Cir. 1987). In response to the defendants' motion for summary judgment, the plaintiffs merely re ite ra te that "[t]he Defendants' actions in denying the Plaintiffs' their rights to . . . equal p ro tec tio n under the United States Constitution has been proven by the mere existence of this c u sto m ordinance (or law) of forcing the "City of Montgomery Application for a Public A s s e m b ly Permit." 1 4 (Reply to Defs' Reply, doc. # 41 at 2). The plaintiffs do not identify s im ila rly situated other persons who were treated differently because of their religion. They p o i n t the court to no facts from which the court could identify these other people. They p r e s e n t no facts from which the court could conclude they was similarly situated to these o th e r people. Their unsworn reply is simply insufficient to defeat the defendants' motion for

The ordinance at issue does not create any classifications, but to the extent that the plaintiffs make this type challenge, it certainly survives an equal protection challenge under the rational basis test. That test asks (1) whether the government has the power or authority to regulate the particular area in question, and (2) whether there is a rational relationship between the government's objective and the means it has chosen to achieve it. Cash Inn of Dade, Inc. v. Metro. Dade County, 938 F.2d 1239, 1241 (11th Cir. 1991). As noted in the discussion about the First Amendment, the City certainly has an interest in protecting its citizens and the ordinance is plainly rationally related to that end.

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s u m m a ry judgment. Moreover, the plaintiffs have presented no competent evidence from which a re a so n a b le jury could conclude that their treatment by the defendants was due to a c o n s titu tio n a lly impermissible reason. Discriminatory purpose . . . implies more than intent as volition or intent as a w a re n e s s of consequences. It implies that the decisionmaker . . . selected . . . a particular course of action at least in part `because of,' not merely `in spite o f ,' its adverse effects upon an identifiable group. Personnel Administrator o f Mass. v. Feeney, 442 U.S. 256, 279 (1979) (footnote and citation omitted); s e e also McCleskey v. Kemp, 481 U.S. 279, 297-299 (1987). H e r n a n d e z v. New York, 500 U.S. 352, 359 (1991). See also e.g., Mencer v. Hammonds, 134 F .3 d 1066, 1069 (11 th Cir. 1998) (holding that a government actor cannot violate a plaintiff's e q u a l protection rights unless the defendant has the intent to discriminate); Parks v. City of W a r n e r Robins, Ga., 43 F.3d 609, 616 (11 th Cir. 1995) ("[P]roof of discriminatory intent or p u rp o s e is a necessary prerequisite to any Equal Protection Clause claim."). In the absence of proof indicating the plaintiffs were similarly situated to other p e rs o n s , that they were treated differently because of their religious views, or that the c o n d u c t of the defendants was intentionally discriminatory, the defendants are entitled to s u m m a ry judgment as a matter of law. C . Fourth Amendment Unreasonable Seizures Claim In count V of the amended complaint, the plaintiffs allege that they were deprived of " th e ir right to be free from unreasonable seizure" by a threat of arrest. The Fourth

A m e n d m e n t guarantees that persons will be secure in their persons against unreasonable 28

s e a rc h e s and seizures. "The Fourth Amendment is implicated when a police officer either b rie f ly detains a citizen for investigatory purposes or holds a citizen pursuant to an arrest. U n i te d States v. Hastamorir, 881 F.2d 1551, 1556 (11 th Cir.1989)." Bryan v. Spillman, 217 F e d . Appx. 882, 884, *2 (11 th Cir. 2007) (No. 06-13970). It is undisputed that the plaintiffs w e re not arrested or otherwise seized at any time during their peaceful protest on May 28, 2 0 0 4 . Because the plaintiffs were not arrested or otherwise prevented from protesting or p re a ch in g , the court concludes that the plaintiffs have not asserted any facts or pointed to any e v id e n c e that would establish a Fourth Amendment violation. See Id. at *3. D . City of Montgomery Police Department The plaintiffs sued the City of Montgomery Police Department. In this circuit, the law is well established that sheriff departments and police departments are not legal entities s u b je c t to suit or liability under 42 U.S.C. § 1983. Dean v. Barber, 951 F.2d 1210, 1214 (11 th C ir. 1992). Accordingly, the City of Montgomery Police Department's motion for summary ju d g m e n t is due to be granted. CONCLUSION A c c o r d in g ly, it is the RECOMMENDATION of the Magistrate Judge as follows: 1. 1. 2. T h a t the plaintiffs' motion for a preliminary injunction (doc. # 39) be DENIED. T h a t the defendants' motion to dismiss (doc. # 12) be DENIED. T h e plaintiffs' motion to waive posting of security (doc. # 43) and motion for

ju d g m e n t on the pleadings (doc. # 48) be and are hereby DENIED.

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3.

T h a t the plaintiffs' motion to admit exhibit and "Yy" and additional

m em o ra n d u m (doc. # 44) be and is hereby GRANTED. 4. T h e plaintiffs' motions for a declaratory judgment (docs. # 2 & 6), motion for

s u m m a ry judgment (doc. # 29) be DENIED and this case DISMISSED with prejudice. 5. T h a t, for the reasons as stated, the defendants' motion for summary judgment

(d o c . # 36) be GRANTED. It is further O R D E R E D that the parties shall file any objections to the said Recommendation on o r before March 16, 2010. Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation objected to. Frivolous, conclusive or general

o b jec tio n s will not be considered by the District Court. The parties are advised that this R e c o m m e n d a tio n is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on

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S e p te m b e r 30, 1981. D o n e this 2 n d d a y of March 2010.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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