Bell et al v. City of Boise, Idaho et al

Filing 170

MEMORANDUM DECISION AND ORDER ON DEFENDANTS' MOTION TO STRIKE AND DISMISS PORTIONS OF THE SECOND AMENDED COMPLAINT. ACCORDINGLY, IS HEREBY ORDERED that Defendants' Motion to Strike and Dismiss Portions of Plaintiffs' Second Amended Complaint 156 is GRANTED, in part, and DENIED, in part. Plaintiffs shall file a Revised Second Amended Complaint by 7/31/2014. The stipulated litigation plan is due on or before 8/7/2014. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

JANET F. BELL, BRIAN S. CARSON,
ROBERT MARTIN, LAWRENCE LEE
SMITH, ROBERT ANDERSON, PAMELA S. Case No. 1:09-cv-00540-REB
HAWKES, JAMES M. GODFREY, and BASIL
E. HUMPHREY,
MEMORANDUM DECISION
Plaintiffs,
AND ORDER ON DEFENDANTS’
MOTION TO STRIKE AND
vs.
DISMISS PORTIONS OF THE
SECOND AMENDED
CITY OF BOISE; BOISE POLICE
COMPLAINT
DEPARTMENT; and MICHAEL
MASTERSON, in his official capacity as Chief
of Police,
Defendants.

Pending before the Court is Defendants’ Motion to Strike and Dismiss Portions of
Plaintiffs’ Second Amended Complaint (Dkt. 156). The Court has carefully reviewed the
record, considered oral arguments, and now enters the following Order granting, in part,
and denying, in part, Defendants’ Motion.
BACKGROUND
The Plaintiffs are individuals who either are, or were, homeless in Boise. They
allege that Defendants (Boise City and its Police Department) have criminalized
MEMORANDUM DECISION AND ORDER - 1

homelessness in the manner in which they enforce certain Boise City ordinances.1 The
factual and procedural background of this case has been described at length in earlier
decisions and it need not be repeated in full here for purposes of the present motion,
except as necessary in the “Discussion” section below.
Relevant here, Defendants ask the Court to dismiss Plaintiffs’ First Claim for
Relief, made pursuant to 42 U.S.C. § 1983, and to strike from the Second Amended
Complaint all allegations related to Defendants’ enforcement of Boise City Code §
13-03-05(E), referred to as the “Park After Dark” ordinance.2 For the reasons explained
below, the Court, in large part, grants Defendants’ Motion, and will require Plaintiffs to
remove one claim and several allegations from their Second Amended Complaint.3

1

The ordinances are Boise City Code Section 9-10-02 02 (the “Camping Ordinance”)
and Boise City Code Section 6-01-05(A) (which prohibits disorderly conduct and is referred to
throughout this order as the “Sleeping Ordinance”). They are referred to as “the Ordinances” in
this Memorandum Decision and Order.
2

Boise City Code § 13-03-05(E) prohibits any person from “enter[ing] or remain[ing] in
the park during times of closure, except for purposes of transit through the park, or as authorized
by permit.”
3

Plaintiffs have withdrawn their demand for a jury trial and that demand is stricken from
the Second Amended Complaint. See Opp’n, p. 3, n.1 (Dkt. 159).
MEMORANDUM DECISION AND ORDER - 2

DISCUSSION
A.

Plaintiffs’ § 1983 Claim
Defendants argue that Plaintiffs’ § 1983 claim is barred by Heck v. Humphrey, 512

U.S. 477 (1994), and, therefore, should be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6).4
1.

Standards of Law

Dismissal under Rule 12(b)(6) for failure “to state a claim upon which relief can be
granted,” may be based on the lack of a cognizable legal theory or on the absence of
sufficient facts alleged under a cognizable legal theory. See Navarro v. Block, 250 F.3d
729, 732 (9th Cir. 2001); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1988). At issue here is whether Plaintiffs have a legal basis for their § 1983 Claim.
2.

Discussion

In Heck, the United States Supreme Court held that:
[I]n order to recover damages for [an] allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a ... plaintiff must prove that
the conviction or sentence has been reversed on direct appeal,

4

Defendants also seek dismissal under Federal Rules of Civil Procedure 12(f) and 16(f),
but because dismissal is warranted under Rule 12(b)(6), the Court need not address these
additional arguments raised as bases for striking the § 1983 Claim.

MEMORANDUM DECISION AND ORDER - 3

expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas
corpus.
Id. at 486–87.
In the prior Memorandum Decision and Order on Defendants’ Motion for
Summary Judgment, this Court applied Heck’s favorable termination requirement to bar
Plaintiffs’ claims for relief under § 1983:
A judgment finding the Ordinances unconstitutional in this
case necessarily would imply the invalidity of Plaintiffs’
convictions under those Ordinances. The fulcrum of
Plaintiffs’ § 1983 claims is the allegation of unconstitutional
convictions. None of those convictions, however, was
reversed on direct appeal or otherwise called into question,
and none of the Plaintiffs raised a constitutional challenge in
his or her criminal case, including on appeal. The holding of
Heck is a close fit to such circumstances. Accordingly, the
Heck bar applies to Plaintiffs’ claims that would necessarily
imply the invalidity of the convictions or sentences. Here, that
includes the relief requesting expungement of the records of
any camping and sleeping ordinance violations,
reimbursement for any fines or incarceration costs, recovery
of damages for the alleged civil rights violations, and any
other claim or recovery tied to events that have already
occurred.
Bell v. City of Boise, Case No. 1:09–cv–00540–REB, 2014 WL 295189, *4 (D.Idaho Jan.
27, 2014) (footnote omitted). However, the Court allowed Plaintiffs leave to assert a

MEMORANDUM DECISION AND ORDER - 4

§ 1983 claim for prospective declaratory and injunctive relief, despite the Court’s ruling
that Heck bars all other relief requested under § 1983, if Plaintiffs provided authority to
support such a claim.
To that end, Plaintiffs’ Second Amended Complaint references two cases as
support for a narrowed § 1983 claim seeking only prospective relief—Steffel v.
Thompson, 415 U.S. 452 (1974) and Vasquez v. Rackauckas, 734 F.3d 1025 (9th Cir.
2013). 2d Amd. Compl., p. 3 (Dkt. 154). Neither decision, however, provides authority
or guidance that outweighs Wilkinson v. Dotson, in which the United States Supreme
Court explained that certain “cases, taken together, indicate that a state prisoner’s § 1983
action is barred (absent prior invalidation) – no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner’s suit (state conduct leading to
conviction or internal prison proceedings) – if success in that action would necessarily
demonstrate the invalidity of confinement or its duration”. 544 U.S. 74, 81–82 (2005)
(emphasis added).5
5

Steffel was decided twenty years before Heck and did not involve state criminal
convictions, but rather only threatened state prosecution. Thus, it is of little import on the
question of Heck’s applicability. Vasquez concerned the “procedures constitutionally required”
before individuals are denied the opportunity to defend against imposition and enforcement of
civil injunction orders. 734 F.3d. at 1030. Heck’s bar was never raised in Vasquez, nor was the
Heck case cited or discussed.
Similarly, in another case discussed by Plaintiffs at oral argument, American Civil
Liberties Union, et al. v. Boise, Case No. 1:13-cv-00478-EJL, the Heck bar was neither raised by

MEMORANDUM DECISION AND ORDER - 5

Here, every iteration of Plaintiffs’ Complaint has alleged as the factual basis for
their claims the fact that they were cited and convicted under the Ordinances. See, e.g.,
Dkt. 1, ¶¶ 7-9; Dkt. 53, ¶¶ 7-9; Dkt. 154, ¶¶ 7-10. See also Dkt. 141-1; Dkt. 143, p. 1.
None of the Plaintiffs raised an Eighth Amendment challenge in their criminal
proceedings. Hence, a ruling in favor of Plaintiffs on even a prospective § 1983 claim
would demonstrate the invalidity of any confinement stemming from those convictions.
In this way, the relief requested by Plaintiffs in this case differs significantly from what
the plaintiff sought in Osborne v. District Attorney’s Office for Third Judicial District,
423 F.3d 1050 (9th Cir. 2005), a case on which Plaintiffs rely. In Osborne, the plaintiff
sued under § 1983 to compel release of certain evidence used to convict him; he did not
argue that his statute of conviction was unconstitutional. See Osborne, 423 F.3d at 1054
(plaintiff’s “success would yield only access to . . . evidence—nothing more”); see also
id. at 1055 (noting that the Supreme Court in Wilkinson v. Dotson, 544 U.S. 74, “found it
key” that “at most, success [for the plaintiffs] meant a new parole hearing, at which the
prisoners might—or might not—receive reduced sentences”). In essence, in Osborne

the parties nor considered by the district court. That case involved a constitutional challenge to a
Boise City ordinance brought under § 1983, similar to the claim brought here. The rule set out in
Heck, however, was not considered when the court addressed the standing challenge raised by
the Boise City defendants, nor in its Order on a Motion for Preliminary Injunction (Dkt. 18).
Shortly thereafter, the parties stipulated to dismissal of that case (Dkt. 21).

MEMORANDUM DECISION AND ORDER - 6

(and other cases in which courts have found that Heck does not bar § 1983 claims), the
plaintiffs challenged a procedure or process and not the statute of conviction. See also,
e.g., Edwards v. Balisok, 520 U.S. 641, 643 (1997) (prisoner’s § 1983 action alleged “that
the procedures used in his disciplinary proceeding violated his Fourteenth Amendment
due process rights,” not the disciplinary decision itself) (emphasis added).
Plaintiffs have not provided any authority sufficient to persuade the Court that
there should be some revision to the Court’s prior decision that Heck bars Plaintiffs’ §
1983 claims. Accordingly, the Court will not revise its prior decision on the application
of Heck to the facts of this case.6
B.

Allegations and Claims Related to Boise City Code § 13-03-05(E)
Defendants ask that the Court strike all allegations in the Second Amended

Complaint related to the Park After Dark ordinance, Boise City Code § 13-03-05(E),
under Federal Rules of Civil Procedure 12(f) and 16(f). Although much of the parties’

6

This ruling does not preclude all categories of potential plaintiffs from bringing a §
1983 claim challenging these ordinances. Those who are cited under the Ordinances and raise an
Eighth Amendment claim in their criminal proceedings would not necessarily be barred by Heck
from later bringing an § 1983 claim, and those who are never cited or arrested may still bring a
claim if they demonstrate a realistic danger of injury. See, e.g., Valle del Sol Inc. v. Whiting, 732
F.3d 1006, 1015 (9th Cir. 2013) (explaining that, to establish standing, a plaintiff “must
demonstrate a realistic danger of sustaining a direct injury as a result of a statute’s operation or
enforcement,” but “does not have to await the consummation of threatened injury to obtain
preventive relief”) (citation and internal quotation marks omitted).

MEMORANDUM DECISION AND ORDER - 7

argument is focused on whether these allegations may be stricken under the standards of
Rule 12(f), the proper focus is on Rule 16(f) because the amendment was made after the
deadline for amending pleadings and without prior leave of the Court.
There is no question that Plaintiffs’ allegations regarding the Park After Dark
ordinance seek to bring a wholly separate claim against Defendants—specifically, that
Defendants’ enforcement of this ordinance violates the Eighth Amendment—and that
such a claim was not previously raised. Even though the Park After Dark ordinance may
have been mentioned in discovery, that ordinance was never alleged as a basis for an
Eighth Amendment claim, nor have Plaintiffs sought at any time permission to amend
their original Complaint to add such a claim.
The deadline for amending pleadings expired long before this claim was made.
Moreover, in the appeal that preceded the return of this case to this Court, the Ninth
Circuit considered the claims and issues Plaintiffs brought in this case and ruled that some
of Plaintiffs’ claims were properly dismissed and others abandoned on appeal. The
Circuit clearly identified only one portion of the case that remained at issue on remand.
Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013). Thus, there is no room left for
Plaintiffs to argue that they should be allowed to remodel the case or add new claims at

MEMORANDUM DECISION AND ORDER - 8

this point in the litigation. And, indeed, they have not sought the leave of court required
to amend a pleading after the case management deadline has passed.
“A schedule may be modified only for good cause and with the judge’s consent.”7
Fed. R. Civ. P. 16(b)(4). The Court has discretion to modify the schedule, Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992), but Plaintiffs have not
demonstrated good cause to do so at this stage of the litigation. The parties’ claims,
defenses, and positions on this case have been formed and litigated at length, and this
case is before the Court on remand, having been pared down extensively before and after
an appeal. Some additional discovery on the one remaining claim is warranted to give
full and fair consideration to that claim; however, there is no good cause to add claims
and extensively remodel the case at this point.
Additionally, unlike “Rule 15(a)’s liberal amendment policy, which focuses on the
bad faith of the party seeking an amendment and the prejudice to the opposing party, the
‘good cause’ standard set forth in Rule 16 primarily focuses on the diligence of the party

7

Plaintiffs cite to and discuss the standard from Federal Rule of Civil Procedure 15,
which provides that leave to amend should be freely given. Pls.’ Opp’n, p. 14 (Dkt. 159).
However, the deadline to amend pleadings has expired and Rule 16 governs any request for
amendment after that deadline has passed. The Court’s order requiring Plaintiffs to amend their
Complaint was for the purpose of removing the dismissed claims and cleaning up the record after
remand, thereby providing a cleaner slate upon which to proceed.

MEMORANDUM DECISION AND ORDER - 9

requesting the amendment.” Sadid v. Vailas, 943 F.Supp.2d 1125, 1138 (D.Idaho. 2013)
(Winmill, J.) (citing Johnson, 975 F.2d at 607). Here, Plaintiffs filed a First Amended
Complaint on June 28, 2010. (Dkt. 53). Not long thereafter, in August 2010, depositions
occurred in which Plaintiffs learned that Defendants may be enforcing the Park After
Dark ordinance against homeless individuals. See, e.g., O’Rourke Dep., pp. 37-64 (Dkt.
159-2). The parties filed motions for summary judgment over a month later, on
September 30, 2010, but Plaintiffs did not seek leave to amend their First Amended
Complaint or to include the Park After Dark ordinance in their summary judgment
arguments, despite learning in August that citations were being issued under that
ordinance. See Dkt. 85, p. 1. In short, neither the fact of the Park After Dark ordinance,
nor the fact of its enforcement, was something recently discovered.
In summary, although Plaintiffs refer to their Park After Dark additions as “an
additional theory of harm” and “additional grounds to find for Plaintiffs on both claims,”
Pls.’ Opp’n, p. 13 (Dkt. 159), they really raise a new claim, which Plaintiffs have neither
requested leave to add, nor demonstrated the requisite good cause for doing so.
C.

Other New Factual Allegations in the Second Amended Complaint
A motion to strike is meant to target “spurious issues,” “matter . . . that has no

essential or important relationship to the claim for relief or the defense being plead,” or

MEMORANDUM DECISION AND ORDER - 10

“statements that do not pertain to the issues in [the case].” Whittlestone, Inc. v.
Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010). Additionally, Rule 12(f) motions are
generally viewed with disfavor and are not frequently granted. Neilson v. Union Bank of
Cal., N.A., 290 F.Supp.2d 1101, 1152 (C.D.Cal. 2003).
The Court agrees with Plaintiffs that the Second Amended Complaint properly
updates information related to the Plaintiffs’ standing to bring their claims, adds statistics
on Boise’s homeless population, and references reports and other information about
actions taken with regard to the homeless and enforcement of the challenged Ordinances.
Such revisions include allegations related to Plaintiffs’ health, homeless status, additional
ordinance violation citations that they may have received, statistics regarding Boise’s
homeless population, the availability of shelter beds, and actions taken by the Boise
Police Department and Boise City over the past four years regarding the Ordinances and
the homeless population. Such information is properly brought into the new pleading.
However, allegations related to the newly-alleged Park After Dark claim do not
pertain to the claims raised in this case and should be stricken. This does not mean that
Plaintiffs are precluded from presenting evidence related to that ordinance at trial if it is
relevant to the claims properly raised and the evidence otherwise meets all the
requirements of the Federal Rules of Evidence.

MEMORANDUM DECISION AND ORDER - 11

CONCLUSION & ORDER
ACCORDINGLY, IS HEREBY ORDERED that Defendants’ Motion to Strike
and Dismiss Portions of Plaintiffs’ Second Amended Complaint (Dkt. 156) is
GRANTED, in part, and DENIED, in part, as set forth in more detail above. Claim One
(made pursuant to Section 1983) and Plaintiffs’ demand for a jury trial are stricken from
the Second Amended Complaint.
Additionally, to the extent the Second Amended Complaint seeks a Declaratory
Judgment regarding Boise Municipal Code § 13-03-05(E) and raises any factual
allegations related to that ordinance, those portions of the Second Amended Complaint
also are stricken. See, e.g., 2d Amd. Compl., ¶¶ 3, 4, 14, 15, 20, 34, 36, 39, 48, 53, 57, 61
(Dkt. 154). However, new information about the Plaintiffs, such as details of their
medical and mental health history and their homelessness status, as well as citations to
articles, reports, and statistics, is not stricken. See, e.g., 2d Amd. Compl., ¶¶ 1, 7-10, 16,
18, 21-27, 29, 31, 40-45, 48-53 (Dkt. 154).
Plaintiffs shall remove all stricken matters from their Second Amended Complaint
and, without changing any allegations or making any new claims, file a Revised Second
Amended Complaint by July 31, 2014. Defendants’ response to that pleading shall be
filed in the ordinary course under the applicable rules.

MEMORANDUM DECISION AND ORDER - 12

Finally, the parties shall meet and confer and submit a new stipulated litigation
plan proposing deadlines for this case going forward to trial. The stipulated litigation
plan is due on or before August 7, 2014. The Court will allow some additional discovery
on the factual allegations and Declaratory Judgment claim contained in the Revised
Second Amended Complaint. However, that discovery may be limited to the time period
from the Ninth Circuit’s remand of this case to the present time. When proposing case
management deadlines for discovery, dispositive motions, and ADR,8 counsel should
consider that the Court’s preference is for this case to continue on an expedited schedule
to allow for a trial to occur as soon as possible.
DATED: July 16, 2014.

Honorable Ronald E. Bush
U. S. Magistrate Judge.

8

The deadline for initial disclosures and to amend pleadings and add parties has expired
and the litigation plan accordingly need not include proposed deadlines for those events.

MEMORANDUM DECISION AND ORDER - 13