Webb v. Tempe, City of

Filing 25

ORDER - IT IS ORDERED: 1. Defendant's motion to dismiss (Doc. 15 ) is granted. 2. Plaintiff's motion for relief (Doc. 18 ) is denied. 3. The Clerk is directed to terminate this action. (See document for further details). Signed by Judge David G Campbell on 4/4/17. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gale-Lawrence; Webb, 10 Plaintiff, 11 ORDER v. 12 No. CV-16-03136-PHX-DGC City of Tempe, 13 Defendant. 14 15 Plaintiff, “Gale-Lawrence; Webb,” filed a complaint against Defendant City of 16 Tempe seeking monetary relief for an alleged violation of Plaintiff’s rights under the 17 Thirteenth and Fourteenth Amendments to the United States Constitution. 18 Defendant has filed a motion to dismiss pursuant to Rule 12(b)(7) of the Federal Rules of 19 Civil Procedure. Doc. 15. The motion is fully briefed (Docs. 15, 19, 20), and neither 20 party has requested oral argument. For the reasons set forth below, the Court will grant 21 Defendant’s motion to dismiss without prejudice.1 22 I. Doc. 1. Background. 23 Plaintiff resides in a single family home on a fenced lot in Tempe, Arizona. 24 Doc. 1, ¶ 2. The lot is bordered by Cairo Drive, two single family homes, and a public 25 alley. Id. Plaintiff has received several notices stating that he has violated Tempe City 26 27 28 1 Plaintiff also argues that Defendant violated 18 C.F.R. § 242. Doc. 1, ¶ 1. This provision refers to conservation of power and water resources. If Plaintiffs meant to refer to 18 U.S.C. § 242, this is a criminal provision that does not provide Plaintiff with a civil right of action. 1 Code Sections 29-2 and 21-3.b.8, and requesting that he take certain ameliorative action. 2 Doc. 1 at 6-13 (Exhibits 1-7). Section 29-2 requires “all persons to keep the sidewalks in 3 front of the premises owned, occupied or controlled by them and the land that lies 4 between the back of the curb and the right-of-way on the side of the street on which 5 their premises are located in good repair and free and clear of all grass, weeds and 6 rubbish.” 7 actionable nuisance: 8 9 10 11 12 13 Section 21-3.b.8 similarly provides that the following constitutes an Any landscaping, visible from public property, that is substantially dead, damaged, or characterized by uncontrolled growth, or presents a deteriorated or slum-like appearance; uncultivated plants, weeds, tall grass, uncultivated shrubs or growth (whether growing or otherwise) higher than twelve (12) inches; or any dead trees, bushes, shrubs or portions thereof, including stumps; or any palm or similar type tree having dead or dry fronds descending downward from the base of the lowest living frond more than eight (8) feet or dry fronds longer than five (5) feet and closer than eight (8) feet to the ground. 2 14 15 Plaintiff appears to have violated the identified sections of the Tempe City Code 16 by failing to remove weeds and debris from the alley adjacent to his home and overgrown 17 weeds and plants from his property. Id. Plaintiff alleges that, in response to threats of 18 civil citations and criminal charges, he spent seventeen hours working in his yard and the 19 adjacent alley to comply with the ordinances, resulting in a left leg joint stress that 20 limited his ability to walk. Id., ¶ 8. He argues that this amounts to involuntary servitude 21 or slavery in violation of the Constitution. Id. Plaintiff alleges that a $185.00 fine was 22 added to his water and utility bill in response to his violation of the relevant sections of 23 the Tempe City Code. Id., ¶ 13. He seeks removal of the $185.00 fee and any related 24 25 2 26 27 28 It is not clear from Plaintiff’s complaint whether he is also challenging Section 29-47 of the Tempe City Code, which provides: “Any tree or shrub which overhangs or is within the public right-of-way which in the opinion of the Public Works Director endangers the life, health, safety or property of the public shall be declared a public nuisance and the Public Works Director shall remove or trim such tree or shrub.” Whether or not Plaintiff is challenging this statute, the Court’s Rule 19 analysis will not change. -2- 1 record, as well as compensatory and punitive damages for “emotional distress, improper 2 cost, legal cost, and wasted time.” Id., ¶¶ 13, 15. 3 II. Analysis. 4 Defendant asks the Court to dismiss Plaintiff’s claim pursuant to Rule 12(b)(7) for 5 failure to join the State of Arizona as a party. Doc. 15 at 1. In the alternative, Defendant 6 asks the Court to order Plaintiff to join the State of Arizona and stay the case until 7 Plaintiff has done so. Id. Rule 12(b)(7) allows dismissal of an action for failure to join a 8 necessary and indispensable party under Rule 19. Rule 19 provides: 9 10 11 12 13 a three-step process for determining whether the court should dismiss an action for failure to join a purportedly indispensable party. First, the court must determine whether the absent party is “necessary[.]” . . . If the absent party is “necessary,” the court must determine whether joinder is “feasible.” Finally, if joinder is not “feasible,” the court must decide whether the absent party is “indispensable,” i.e., whether in “equity and good conscience” the action can continue without the party. 14 15 16 17 18 19 20 21 22 23 24 United States v. Bowen, 172 F.3d 682, 688 (9th Cir. 1999) (citations omitted); see also Paiute-Shoshone Indians of Bishop Cmty. of Bishop Colony, Cal. v. City of Los Angeles, 637 F.3d 993, 997 (9th Cir. 2011). Defendant contends that the State of Arizona is a required party because, absent joinder, Defendant “will be subjected to a substantial risk of inconsistent obligations.” Doc. 15 at 4. Neither party addresses the issues of feasibility or indispensability.3 A. Required Party. Rule 19 defines a person or entity as a “required” party if he is subject to service of process and his joinder will not deprive the court of subject matter jurisdiction. Additionally, at least one of the following conditions must be met: 25 26 27 28 3 Although neither party raised the issue of the feasibility of joining the State of Arizona, the Court may “consider sua sponte the absence of a required person and dismiss for failure to join.” Republic of Philippines v. Pimentel, 553 U.S. 851, 861 (2008). -3- 1 2 3 4 5 6 7 8 (A) in that person’s absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fed. R. Civ. P. 19(a). Defendant argues that the State of Arizona, by statute, has mandated that “all cities pass an ordinance requiring those in control of property to remove weeds and rubbish from the adjacent alley. [Defendant] will be subject to substantial risk of inconsistent obligations and losing state share revenue if the State of Arizona is not joined as a party.” Doc. 15 at 2. Arizona statutes provide that: “The governing body of a city or town, by ordinance, shall compel the owner, lessee or occupant of property to remove from the property and its contiguous sidewalks, streets and alleys any rubbish, trash, weeds or other accumulation of filth, debris or dilapidated buildings that constitute a hazard to public health and safety.” A.R.S. § 9-499 (emphasis added). If the governing body of a county, city, or town acts in a way that violates state law, the state may withhold and redistribute state shared monies that would otherwise go to that county, city, or town. A.R.S. § 41-194.01. As a result, if this Court finds the Tempe City Code provisions invalid, but does not address A.R.S. § 9-499, Defendant must decide whether to comply with this Court’s order or state law. The former decision carries a risk of losing state funding, while the latter exposes Defendant to possible findings of contempt. As a result, the Court agrees that the failure to join the State of Arizona exposes Defendant to a substantial risk of inconsistent obligations. Fed. R. Civ. P. 19(a)(1)(B)(ii); see also Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty. v. California, 547 F.3d -4- 1 962, 976 (9th Cir. 2008) (finding that inconsistent obligations occur “when a party is 2 unable to comply with one court’s order without breaching another court’s order”) 3 (citation omitted). 4 B. 5 Joinder of an entity is not feasible if that entity enjoys immunity from suit 6 pursuant to the Eleventh Amendment. See Dawavendewa v. Salt River Project Agr. Imp. 7 & Power Dist., 276 F.3d 1150, 1159 (9th Cir. 2002); Cyanotech Corp. v. U.S. 8 Nutraceuticals, LLC, No. CIV. 12-00352 JMS, 2013 WL 504862, at *8 (D. Haw. Feb. 7, 9 2013); A123 Sys., Inc. v. Hydro-Quebec, 626 F.3d 1213, 1220 (Fed. Cir. 2010); Thomas 10 Feasible Party. v. FAG Bearings Corp., 50 F.3d 502, 505 (8th Cir. 1995). 11 The Eleventh Amendment provides that “[t]he Judicial power of the United States 12 shall not be construed to extend to any suit in law or equity, commenced or prosecuted 13 against one of the United States by Citizens of another State, or by Citizens or Subjects of 14 any Foreign State.” “The Eleventh Amendment has been authoritatively construed to 15 deprive federal courts of jurisdiction over suits by private parties against unconsenting 16 States.” Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 952 (9th Cir. 2008). The 17 Eleventh Amendment protects unconsenting states “from suits brought in federal courts 18 by her own citizens as well as by citizens of another state.” Pennhurst State Sch. & 19 Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (citation omitted). Thus, if the State of 20 Arizona were joined pursuant to Rule 19, it would be subjected to a suit for damages in 21 federal court by one of its own citizens, in apparent violation of the Eleventh 22 Amendment. 23 A state may waive sovereign immunity, but there is no evidence that Arizona has 24 waived immunity here. Congress may also abrogate state sovereign immunity when, 25 acting pursuant to a valid exercise of power, it unequivocally expresses its intent to do so. 26 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996). The Court’s task of 27 determining whether Congress has abrogated Arizona’s sovereign immunity in this case 28 is complicated by the fact that Plaintiff has not clearly stated the authority under which he -5- 1 brings his Thirteenth and Fourteenth Amendment claims. 2 Thirteenth Amendment and section 5 of the Fourteenth Amendment, Congress has the 3 power to create civil remedies and criminal punishments to prevent or redress violations 4 of those Amendments. See United States v. Nelson, 277 F.3d 164, 184 (2d Cir. 2002); 5 Tennessee v. Lane, 541 U.S. 509, 518 (2004). But neither party has identified any such 6 relevant Congressional action. Because Plaintiff has not brought his claims pursuant to a 7 federal statue which has clearly abrogated state sovereign immunity, the Court will not 8 find abrogation here.4 Under section 2 of the 9 Additionally, the Ex Parte Young doctrine “permits actions for prospective non- 10 monetary relief against state or tribal officials in their official capacity to enjoin them 11 from violating federal law, without the presence of the immune State or tribe.” Salt River 12 Project Agr. Imp. & Power Dist. v. Lee, 672 F.3d 1176, 1181 (9th Cir. 2012). But 13 Plaintiff is seeking damages, not prospective relief.5 As such, the Ex Parte Young 14 exception does not apply. 15 Because the Court has seen no evidence that the sovereign immunity of Arizona 16 has been waived for purposes of this case, and cannot conclude that an exception to 17 immunity applies, the Court concludes that sovereign immunity prevents the State from 18 being joined pursuant to Rule 19. 19 C. 20 When a necessary entity cannot be joined as a party, the Court must determine 21 whether the entity is indispensable. Fed. R. Civ. P. 19(b). This is a context-specific 22 determination. Pimentel, 553 U.S. at 862-63 (“the determination whether to proceed will Indispensable Party. 23 4 24 25 26 Notably, “[t]he Supreme Court has held that Congress did not abrogate the States’ Eleventh Amendment immunity in enacting [42 U.S.C.] § 1983.” Phiffer v. Oregon, 586 F. App’x 425 (9th Cir. 2014) (citing Kentucky v. Graham, 473 U.S. 159, 169 n.17 (1985)). 5 27 28 Ex Parte Young also requires that the suit be brought against an officer of the state, not the state itself. See Merideth v. Burlington N. & Santa Fe Ry. Co, No. CV-0830-BLG-RFC-CSO, 2008 WL 4560720, at *4 (D. Mont. Oct. 10, 2008). Because Plaintiff is seeking damages, the Court need not consider whether a state officer could be sued in his official capacity in place of the State of Arizona. -6- 1 turn upon factors that are case specific, which is consistent with a Rule based on 2 equitable considerations”). The central consideration is “whether, in equity and good 3 conscience, the action should proceed among the existing parties or should be dismissed.” 4 Fed. R. Civ. P. 19(b). The Court should consider the following factors: “(1) the prejudice 5 to any party or to the absent party; (2) whether relief can be shaped to lessen prejudice; 6 (3) whether an adequate remedy, even if not complete, can be awarded without the absent 7 party; and (4) whether there exists an alternative forum.” Dawavendewa, 276 F.3d at 8 1161-62; Fed. R. Civ. P. 19(b). 9 Importantly, “[i]f the necessary party is immune from suit, there may be ‘very 10 little need for balancing Rule 19(b) factors because immunity itself may be viewed as the 11 compelling factor.’” Kescoli v. Babbitt, 101 F.3d 1304, 1311 (9th Cir. 1996) (citation 12 omitted); Delano Farms Co. v. California Table Grape Comm’n., No. 1:07CV1610 13 OWWSMS, 2010 WL 2952358, at *5 (E.D. Cal. July 26, 2010); cf. Dawavendewa, 276 14 F.3d at 1162 (9th Cir. 2002) (noting that the Ninth Circuit still consistently applies the 15 four factor balancing test when “the necessary party enjoys sovereign immunity from 16 suit, [even though] some courts have noted that there may be very little need for 17 balancing Rule 19(b) factors because immunity itself may be viewed as one of those 18 interests compelling by themselves, which requires dismissing the suit”) (citations and 19 quotation marks omitted). 20 1. Prejudice. 21 When a necessary party cannot be joined, Rule 19(b) instructs the Court to 22 consider the impact of continuing the suit absent the necessary party. Paiute-Shoshone 23 Indians, 637 F.3d at 1001. This consideration encompasses possible prejudice to the 24 absent party and to any existing party. Id. “As examples of interests a defendant might 25 have, the [Supreme] Court observed that a defendant ‘may properly wish to avoid 26 multiple litigation, or inconsistent relief, or sole responsibility for a liability he shares 27 with another.’” Id. (quoting Provident Tradesmens Bank & Trust Co. v. Patterson, 390 28 U.S. 102, 110 (1968)). The Court has already determined that resolution of Plaintiff’s -7- 1 claim in his favor will likely result in inconsistent obligations for Defendant. There does 2 not appear to be any way to shape relief that would lessen the prejudice Defendant would 3 suffer from inconsistent obligations. 4 Plaintiff appears to concede that A.R.S. § 9-499 requires Defendant to enact and 5 enforce the city ordinances at issue here, arguing that the state statute itself is also 6 unconstitutional. Doc. 19, ¶¶ 3, 4. Plaintiff argues that Defendant has an independent 7 obligation to challenge the Arizona statute and thus resolve any inconsistencies between 8 Arizona state law and the Constitution. Id. By seeking joinder of the State of Arizona, 9 Defendant attempted to avoid any possible inconsistencies, but Arizona’s sovereign 10 11 immunity prevents it from being joined. 2. Adequate Remedy. 12 “Adequacy refers to the ‘public stake in settling disputes by wholes, whenever 13 possible.’” Pimentel, 553 U.S. at 870-71 (quoting Provident Tradesmens Bank, 390 U.S. 14 at 111). Resolution of Plaintiff’s claim against Defendant, without consideration of the 15 constitutionality of A.R.S. § 9-499, would not settle this dispute. 16 A.R.S. § 9-499 would still be unanswered, as would the validity of every local action 17 undertaken pursuant to that state statute. As a result, continuance of this suit without the 18 State of Arizona likely would lead to incomplete, inconsistent, and inefficient settlement 19 of the issues raised by this case. Provident Tradesmens Bank, 390 U.S. at 111. 20 21 3. The validity of Alternative Forum. State immunity from suit applies in both federal and state courts. As a result, 22 Plaintiff does not have an alternative forum in which to bring his claims. 23 dismissing a claim when the plaintiff has no alternative remedy may be a harsh result, 24 courts do so when a necessary party cannot be joined because of sovereign immunity. 25 See Pimentel, 553 U.S. at 872 (“Dismissal under Rule 19(b) will mean, in some 26 instances, that plaintiffs will be left without a forum for definitive resolution of their 27 claims. But that result is contemplated under the doctrine of foreign sovereign 28 immunity.”); Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1025 (9th Cir. 2002) -8- While 1 (“we have regularly held that the tribal interest in immunity overcomes the lack of an 2 alternative remedy or forum for the plaintiffs”); Wilbur v. Locke, 423 F.3d 1101, 1115 3 (9th Cir. 2005), abrogated on different grounds by Levin v. Commerce Energy, Inc., 560 4 U.S. 413 (2010). 5 As discussed, the necessary party’s sovereign immunity is often considered a 6 compelling factor supporting dismissal of a claim under Rule 19(b). While continuation 7 of the suit would not likely prejudice the interests of the State of Arizona, the Court notes 8 that Plaintiff’s claim is essentially one against the State. Arizona has ordered local 9 governing bodies to “compel the owner, lessee or occupant of property to remove from 10 the property and its contiguous sidewalks, streets and alleys any rubbish, trash, weeds or 11 other accumulation of filth, debris or dilapidated buildings that constitute a hazard to 12 public health and safety.” A.R.S. § 9-499. Defendant’s contested actions were allegedly 13 taken to comply with this state mandate. Thus, the ultimate issue appears to be the 14 constitutionality of A.R.S. § 9-499. Society has “consciously opted,” however, to shield 15 states from suit without congressional or state consent. Wichita & Affiliated Tribes of 16 Oklahoma v. Hodel, 788 F.2d 765, 777 (D.C. Cir. 1986). Plaintiff’s inability to seek 17 monetary relief for an alleged harm caused by the State does not weigh heavily in favor 18 of continuing this suit, as Plaintiff may not seek such relief directly from Arizona, and 19 does not outweigh the interests protected by sovereign immunity. 20 III. Plaintiff’s Motion for Relief. 21 Plaintiff has also brought a motion for relief from violation of constitutional rights 22 and compensation for damages incurred. Doc. 18 at 1. This motion is little more than a 23 recitation of Plaintiff’s complaint and seeks no additional relief or action from the Court. 24 The Court will deny Plaintiff’s motion. 25 26 27 28 -9- 1 IT IS ORDERED: 2 1. Defendant’s motion to dismiss (Doc. 15) is granted. 3 2. Plaintiff’s motion for relief (Doc. 18) is denied. 4 3. The Clerk is directed to terminate this action. 5 Dated this 4th day of April, 2017. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 -

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