Monumental Task Committee, Inc. et al v. Foxx et al
Filing
135
ORDER & REASONS. It is ORDERED that Defendants' 112 Motion to Dismiss is GRANTED. Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 10/3/2016. (Reference: 16-12495)(gec)
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 1 of 26
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MONUMENTAL TASK
COMMITTEE, INC., ET AL.
CIVIL ACTION
VERSUS
NO: 15-6905
Consolidated with
16-12495
ANTHONY N. FOXX, ET AL.
SECTION: “J”(3)
ORDER & REASONS
Before the Court is a Rule 12(b)(6) Motion to Dismiss filed
by Defendants, Jason R. Williams and Mayor Mitchell J. Landrieu
(Mayor Landrieu) (R. Doc. 112), an opposition thereto filed by
Plaintiff, Richard A. Marksbury (R. Doc. 117), a reply thereto
filed by Defendants (R. Doc. 124), and a sur-reply (R. Doc. 127)
filed
by
Plaintiff.
Having
considered
the
motion
and
legal
memoranda, the record, and the applicable law, the Court finds
that Defendant’s motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
The Court will provide only a brief summary of the facts
surrounding this litigation. This case is related to the New
Orleans City Council’s (City Council) decision to remove three
monuments honoring Confederate leaders and a fourth commemorating
an 1874 battle between the White League and the City of New
Orleans’ first integrated police force. On June 26, 2015, Mayor
Landrieu called upon the City Council to initiate the process to
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 2 of 26
remove these four public monuments. On July 9, 2015, following the
remarks from Mayor Landrieu in support of the monuments’ removal,
the City Council adopted a resolution soliciting recommendations
from various City agencies regarding whether the monuments should
be deemed a nuisance and removed from public property. On December
1, 2015, the City Council introduced an ordinance providing for
the removal of the monuments. On December 17, 2015, the City
Council affirmatively voted to remove the monuments, and the
ordinance was signed into law.
On August 21, 2015, Plaintiff, submitted a letter to the City
Council asking to appear before the City Council to propose that
the iconic Andrew Jackson statue in Jackson Square violated Section
City Code. 1 Section 146-611(b)
146-611(b) of the New Orleans
provides:
On its own motion or upon presentation of a request of
an elector of the city, the council may conduct a hearing
to determine whether or not any monument, statue, or
similar thing honoring or commemorating any person or
event that is located on property owned or controlled by
the city should be removed from public outdoor display.
New Orleans, La., Code of Ordinances § 146-611(b) (1995). On
Thursday, March 31, 2016, Plaintiff appeared before the Government
Affairs Committee of the City Council (GAC). 2 Plaintiff was granted
the opportunity to make a fifteen-minute presentation to the GAC
1
R. Doc. 1 at 8. Record Document 1 refers to Plaintiff’s complaint that was
originally listed in case 16-12495, but later consolidated with 15-6905. See
Case No. 16-12495, R. Doc. 5.
2 R. Doc. 1 at 8.
2
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 3 of 26
explaining why the review process should be initiated to consider
removing the Andrew Jackson statue. Despite Plaintiff’s efforts,
the City Council has currently not decided to conduct a hearing to
determine whether the Andrew Jackson statue should be removed.
On July 7, 2016, in response to the City Council not acting
upon
his
lawsuit. 3
request
On
July
to
conduct
28,
2016,
a
hearing,
this
case
Plaintiff
was
filed
this
consolidated
with
Monumental Task Committee, Inc., et al v. Anthony R. Foxx, et al. 4
“Plaintiff asserts that the above-named Defendants violated his
rights guaranteed under the ‘Equal Protection Clause’” of the
Fourteenth Amendment to the United States Constitution. 5 Plaintiff
also argues that he did not receive adequate due process. 6 On
August 15, 2016, Defendants filed a motion to dismiss Plaintiff’s
complaint
for
failure
to
state
a
claim
under
the
Fourteenth
Amendment. 7 Plaintiff filed a timely opposition, 8 which was then
met with a reply by Defendants. 9 Plaintiff filed a brief, one-page
sur-reply to Defendants’ reply. 10 Defendants’ motion to dismiss is
now before the Court on the briefs and without oral argument.
3
See id.
See n. 1.
5 R. Doc. 1 at 1.
6 See id. at 4-5; R. Doc. 117 at 8-9 (“Plaintiff maintains his complaint is
clear and concise in establishing that he believes his Constitutional rights,
under the Fourteenth Amendment, had been violated and that he did not receive
due process following his hearing before, [sic] the City Council on 31 March.”)
7 R. Doc. 112.
8 R. Doc. 117.
9 R. Doc. 124.
10 R. Doc. 127.
4
3
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 4 of 26
PARTIES’ ARGUMENTS
1.
Plaintiff’s Arguments
The primary claim set forth in Plaintiff’s complaint is that
he was denied Equal Protection under the Fourteenth Amendment. 11
“Plaintiff contends that his Constitutional rights were violated
by the transparent failure of the defendants to apply [Section
146-611 of the New Orleans City Code] equally and with exact
justice.” 12 Plaintiff argues that he did not receive the same due
process that Mayor Landrieu received when Plaintiff petitioned the
City Council to consider removing the Andrew Jackson statue.
Specifically, Plaintiff argues that when Mayor Landrieu petitioned
the City Council pursuant to Section 146-611 to consider removing
four monuments, Mayor Landrieu was permitted to address the City
Council in its entirety. 13 However, when Plaintiff petitioned the
City Council pursuant to Section 146-611(b) he was only heard by
the GAC and three City Council members. 14 It was at this point that
Plaintiff contends Mayor Landrieu was given preferential treatment
and that Plaintiff’s rights under the Fourteenth Amendment were
violated. 15 Plaintiff argues that he was granted a “hearing” under
Section 146-611(b) and that the City Council did not subsequently
11
12
13
14
15
R. Doc. 117 at 5.
R. Doc. 1 at 1.
Id. at 3-5.
Id.
R. Doc. 1 at 4.
4
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 5 of 26
fulfill the requirements of Section 146-611(c); 16 thus, Plaintiff
argues that Mayor Landrieu was “accorded preferential and biased
treatment” which also violated Plaintiff’s Fourteenth Amendment
rights. 17
Throughout his complaint and reply memoranda, Plaintiff also
references that his due process rights were violated. 18 Construed
liberally,
it
appears
that
Plaintiff
argues
that
Defendants
deprived him of his due process right to petition a fully empaneled
City Council. This argument stems from the previous argument—Mayor
Landrieu was granted a hearing in front of a fully empaneled City
Council, whereas Plaintiff’s presentation was only heard by three
City Council members. Plaintiff asks that this Court issue a
judgment requiring Defendant Jason R. Williams to initiate the
review process outlined Section 146-611 and prohibiting Defendant
16
Section 146-611(c) provides:
In any hearing conducted pursuant to this section, the council shall
solicit the recommendations of the city planning commission when
required by the City Charter and comments and recommendations of
the historic district landmarks commission, the Vieux Carre
Commission (if applicable), other government or private historical
offices or societies, the chief administrative officer, the city
attorney, the superintendent of police, and the director of the
department of property management. In any such hearing, the council
shall also provide for the submission of comments and testimony by
the public. Prior to any such hearing, the council shall request
that public hearings be conducted by and recommendations obtained
from the human relations commission or other appropriate agencies.
New Orleans, La., Code of Ordinances § 146-611(c) (1995). Thus, Plaintiff argues
because he was granted a “hearing” that the council was required to solicit
recommendations to remove the Andrew Jackson statue pursuant to Section 146611(c). In actuality, the opportunity that Plaintiff was afforded to present
his arguments to the GAC does not seem to be the hearing under Section 146611(b), but rather a presentation of a request of an elector of the city.
17 R. Doc. 1 at 5.
18 See id. at 1, 4, 5; see also R. Doc. 117 at 8-9, 14, 19.
5
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 6 of 26
Mayor Landrieu from speaking with any person who may be affiliated
with the removal of the Andrew Jackson statue. 19
2.
Defendants’ Arguments
Defendants argue that Plaintiff’s complaint fails to state a
valid claim under the Fourteenth Amendment. 20 Defendants first
argue that the City Council’s refusal to act upon Plaintiff’s
request did not “distinguish between classes of individuals or
groups” nor did it have a “disparate impact on members of a suspect
class.” 21 Thus, Defendants argue that Plaintiff’s complaint fails
to identify any way in which a group of citizens have been treated
differently. Further, Defendants argue that Plaintiff’s complaint
does not set forth any facts tending to prove that the City Council
acted irrationally and with discriminatory intent by refusing to
entertain
Plaintiff’s
request
to
remove
the
Andrew
Jackson
statue. 22 As to Mayor Landrieu’s allegedly preferential treatment,
Defendants argue that the mayor’s authority to address the City
Council and have a voice in such proceedings arises from Home Rule
Charter Section 4-206, 23 rather than New Orleans City Ordinance
19
20
21
22
23
R. Doc. 1 at 7.
R. Doc. 112-1 at 1.
Id. at 9.
Id. at 10.
Home Rule Charter § 4-206(2), “Powers with Respect to Council”, provides:
(a)
Present to the Council messages or information which in the Mayor’s
opinion are necessary or expedient.
(b)
Attend Council meetings and have a voice in the proceedings.
(c)
Call special sessions of the Council.
(d)
Veto ordinances.
6
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 7 of 26
Section
146-611(b). 24
In
fact,
Defendants
argue
that
the
presentation Plaintiff presented to the GAC was a privilege, rather
than a right, because not every elector of the city is granted the
right to summon the City Council for policy discussions. 25 Finally,
Defendants argue that the City is entitled to reasonable attorney’s
fees
for
Plaintiff’s
allegedly
frivolous
and
unreasonable
lawsuit. 26
LEGAL STANDARD
1.
12(b)(6) Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides
that an action may be dismissed for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive
a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)). “Factual
allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 556. A claim is facially
plausible when the plaintiff has pleaded facts that allow the court
to “draw a reasonable inference that the defendant is liable for
the misconduct alleged.” Id. at 570.
24
25
26
R. Doc. 112-1 at 12.
See id. at 13.
Id.
7
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 8 of 26
On
a
motion
to
dismiss,
asserted
claims
are
liberally
construed in favor of the claimant, and all facts pleaded are taken
as true. McCoy v. Housing Auth. of New Orleans, No. 15-389, 2015
WL 9204434, at *5 (E.D. La. Dec. 17, 2015) (citing Leatherman v.
Tarrant Ctny. Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 164 (1993)). However, although required to accept all “wellpleaded facts” as true, a court is not required to accept legal
conclusions as true. Iqbal, 556 U.S. at 677-78. Legal conclusions
must be supported by factual allegations. See id. at 679. The
complaint need not contain detailed factual allegations, but must
offer more than mere labels, legal conclusions, or formulaic
recitations of the elements of a cause of action. Id. at 678. From
the face of the complaint, there must be enough factual matter to
raise a reasonable expectation that discovery will reveal evidence
as to each element of the asserted claims. Lormand v. U.S. Unwired,
Inc., 565 F.3d 228, 257 (5th Cir. 2009). If factual allegations
are insufficient to raise a right to relief above the speculative
level, or if it is apparent from the face of the complaint that
there
is
an
“insuperable”
bar
to
relief,
the
claim
must
be
dismissed. Moore v. Metro Human Serv. Dep’t, No. 9-6470, 2010 WL
146224, at *2 (E.D. La. Apr. 8, 2010) (citing Jones v. Bock, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 n. 9 (5th
Cir. 2007)).
8
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 9 of 26
2.
Fourteenth Amendment: Equal Protection
The
Equal
Protection
Clause
of
the
Fourteenth
Amendment
protects individuals from state governmental action that works to
treat similarly situated individuals differently. John Corp. v.
City of Houston, 214 F.3d 573, 586 (5th Cir. 2000). To state a
claim
under
demonstrate
the
that
Equal
he
has
Protection
been
Clause,
treated
a
plaintiff
differently
due
must
to
his
membership in a protected class and that the unequal treatment
stemmed from discriminatory intent. Mills v. City of Bogalusa, 112
F. Supp. 3d 512, 516 (5th Cir. 2015) (citing Hampton Co. Nat. Sur.,
LLC v. Tunica Cnty., Miss., 543 F.3d 221, 228 (5th Cir. 2008)).
“[A] violation of equal protection occurs only when the government
treats someone differently than others similarly situated; if the
challenged
government
action
does
not
appear
to
classify
or
distinguish between two or more relevant persons or groups, then
the action—even if irrational—does not deny them equal protection
of the laws.” Brennan v. Stewart, 843 F.2d 1248, 1257 (5th Cir.
1988).
An equal protection claim depends on either identifying a
class or showing that the aggrieved party is a “class of one.” Gil
Ramirez Grp., LLC v. Houston Indep. Sch. Dist., 786 F.3d 400, 419
(5th Cir. 2015). The Supreme Court has recognized successful equal
protection claims brought by a “class of one,” where a plaintiff
does
not
allege
membership
in
a
9
class
or
group,
but
rather
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 10 of 26
individually,
the
plaintiff
alleges
that
she
has
been
intentionally treated differently from others similarly situated
and there is no rational basis for the difference in treatment.
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). The
Court noted that “the purpose of the equal protection clause of
the Fourteenth Amendment is to secure every person within the
State’s
jurisdiction
against
intentional
and
arbitrary
discrimination, whether occasioned by express terms of a statute
or by its improper execution through duly constituted agents.” Id.
(citing Sioux City Bridge Co. v. Dakota Cnty, 260 U.S. 441 445
(1923). To establish a “class-of-one” claim, a plaintiff must show
that (1) he or she was treated differently from others similarly
situated and (2) there was no rational basis for the disparate
treatment. Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812,
824 (5th Cir. 2007) (citing Olech, 528 U.S. at 564). The Fifth
Circuit recognizes three different types of “class of one” claims:
“selective enforcement”; “personal vindictiveness”; and adverse
zoning permit decisions. La. Cmty. Dev. Capital Inv. Fund, Inc. v.
Grambling
Legends
Square
Taxing
Dist.,
No.
14-2212,
2015
WL
1737954, at *7 (W.D. La. Mar. 16, 2015) (report and recommendation
adopted in La. Cmty. Dev. Capital Inv. Fund, Inc. v. Grambling
Legends Square Taxing Dist., No. 14-2212, 2015 WL 1800319 (W.D.
La.
Apr.
16,
2015)).
While
some
circuits
have
found
that
“vindictive animus” is necessary for a “class-of-one” claim, the
10
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 11 of 26
Fifth Circuit “has rejected the argument that all ‘class of one’
equal protection claims require a showing of vindictive animus.
Compare Mikesa v. City of Galveston, 451 F.3d 376, 381 n. 4 (5th
Cir. 2006) and Stotter, 508 F.3d at 824 with Hilton v. City of
Wheeling, 209 F.3d 1005 (7th Cir. 2000). A plaintiff’s “class of
one” equal protection claim may be dismissed on a Rule 12(b)(6)
motion to dismiss if the government’s actions are rationally
related to a legitimate government interest. See Jabary v. City of
Allen,
547
F.
App’x
600,
605
(5th
Cir.
2013)
(unpublished)
(dismissing plaintiff’s equal protection claim where government
had
an
“obvious
alternative
explanation”
for
revocation
of
certificate); Capital Inv. Fund, 2015 WL 1737954, at *9 (dismissing
plaintiffs’
12(b)(6)
“class
motion
of
one”
where
equal
stated
protection
explanation
claim
for
on
a
Rule
differential
treatment was rational); Dennis Melancon, Inc. v. City of New
Orleans, No. 12-1337, 2014 WL 1117881, at *7 (E.D. La. Mar. 19,
2014) (dismissing plaintiff’s equal protection claim on a 12(b)(6)
motion
where
local
ordinances
were
rationally
related
to
a
legitimate government interest); Bennet v. City of New Orleans,
No.
03-912,
2004
WL
60316,
at
*5
(E.D.
La.
Jan.
9,
2004)
(dismissing plaintiffs’ equal protection claims on a Rule 12(b)(6)
motion because the city’s actions were rationally related to the
city’s interests); XP Vehicles, Inc. v. Dept. of Energy, 118 F.
Supp. 3d 38, 78 (D.C. Cir. 2015) (finding plaintiffs’ complaint
11
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 12 of 26
did not contain sufficient allegations to survive defendant’s
12(b)(6) motion to dismiss where there were no other similarly
situated party and there was a rational basis for the differential
treatment); Miller v. City of Monona, 784 F.3d 1113, 1121 (7th
Cir. 2015) (affirming district court’s dismissal of plaintiff’s
complaint on defendant’s 12(b)(6) motion to dismiss where there
was a rational basis for the challenged action).
3.
Fourteenth Amendment: Due Process
The Due Process clause of the Fourteenth Amendment declares
that no State shall “deprive any person of life, liberty, or
property without due process of law.” U.S. Const. amend. XIV, § 1.
There are two types of due process protections: substantive and
procedural. Jones v. Bd. of Supervisors of the Univ. of La. Sys.,
No. 14-2304, 2015 WL 3409477, at *4 (E.D. La. May 27, 2015). In
order for a person to have a procedural due process claim that
damages or other relief can remedy, he must have been denied life,
liberty, or property protected by the Fourteenth Amendment. Wilson
v. Birnberg, 667 F.3d 591, 597 (5th Cir. 2012) (citing Meza v.
Livingston, 607 F.3d 392, 299 (5th Cir. 2010)). The Supreme Court
has adopted a two-step analysis to examine whether an individual’s
procedural
due
process
rights
have
been
violated.
The
first
question “asks whether there exists a liberty or property interest
which has been interfered with by the State; the second examines
whether
the
procedures
attendant
12
upon
that
deprivation
were
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 13 of 26
constitutionally sufficient.” Meza, 607 F.3d 392, 299 (quoting Ky.
Dept. of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citations
omitted)).
Substantive due process bars arbitrary, wrongful government
action
regardless
of
the
fairness
of
the
procedures
used
to
implement them. Lewis v. Univ. of Tex., 665 F.3d 625, 630-31 (5th
Cir. 2011); March Outdoor Advert., Inc. v. Reg’l Transit Auth.,
489 F.3d 669, 673 n. 3 (5th Cir. 2007) (quoting Zinermon v. Burch,
494 U.S. 113, 125 (1990)). In order to establish a substantive due
process violation, a plaintiff must first show the existence of a
constitutionally
protected
right
to
which
the
Fourteenth
Amendment’s due process protection applies. Simi Inv. Co., Inc. v.
Harris Cnty, Tex., 236 F.3d 240- 249-50 (5th Cir. 2000). “If there
is no denial of life, liberty, or property, then the government is
not required to provide due process.” Monumental Task Comm., Inc.
v. Foxx, 157 F. Supp. 3d 573, 594 (E.D La. 2016). The Supreme Court
has explained that property interests, for the purposes of the due
process clause, are created and defined by existing rules or
understandings that stem from an independent source such as state
law. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577
(1972). The Court further stated that a protected property interest
requires more than a person's abstract need, desire, or unilateral
expectation of it; one must instead have a legitimate claim of
entitlement to the property interest. Id. In addition, although
13
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 14 of 26
the existence of a property interest must be decided initially by
reference to state law, federal constitutional law determines
whether that interest rises to the level of entitlement protected
by the due process clause. Shawgo v. Spradlin, 701 F.2d 470, 475
(5th Cir. 1983) (citing Winkler v. Cnty of DeKalb, 648 F.2d 411,
414
(5th
Cir.
1981)).
A
plaintiff’s
substantive
due
process
challenge to a local ordinance may be dismissed on a Rule 12(b)(6)
motion if the ordinance is rationally related to a legitimate
government interest. See Nobles Const., LLC v. Par. of Washington,
No. 11-2616, 2012 WL 1865711, at *3 (E.D. La. May 22, 2012).
DISCUSSION
The resolution of Defendants' motions turns primarily on
whether Plaintiff has stated any viable Section 1983 claim. See
Nobles 2012 WL 1865711, at *3. In order to state a valid Section
1983 claim, a plaintiff “must allege the violation of a right
secured by the Constitution and laws of the United States, and
must show that the alleged deprivation was committed by a person
acting under color of state law.” Id. (citing West v. Atkins, 487
U.S.
42,
48
(1988)).
Here,
Plaintiff
contends
that
he
has
adequately pled three Section 1983 claims, one based on the alleged
violation of his equal protection rights, one based on the alleged
violation of his procedural due process rights, and another based
on the alleged violation of his substantive due process rights.
The Court shall address each, in turn.
14
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 15 of 26
1.
Fourteenth Amendment: Equal Protection
An equal protection claim depends on either identifying a
class or showing that the aggrieved party is a “class of one.” Gil
Ramirez, 786 F.3d at 419. Plaintiff does not claim that he was
discriminated
against
on
the
basis
of
his
membership
in
any
particular class and therefore must rely on the class of one
theory. Id. Liberally construed, it appears that Plaintiff has
attempted to assert a “class of one” equal protection claim.
Therefore, to survive Defendants’ Rule 12(b)(6) motion to dismiss,
Plaintiff must have alleged facts which plausibly state that (1)
he was treated differently from others similarly situated and (2)
there was no rational basis for the disparate treatment. Stotter,
508 F.3d at 824 (citing Olech, 528 U.S. at 564). Plaintiff attempts
to allege that his rights were violated in two separate instances.
First, Plaintiff alleges that his Fourteenth Amendment rights were
violated when his request to initiate the review process stipulated
in Section 146-611 for the removal of the Andrew Jackson statue
was denied, despite “utilizing the same rationale as that used by
elector Defendant Landrieu.” 27 After petitioning the City Council
to initiate the procedure, which was denied, Plaintiff argues that
Defendant Williams should have commenced the procedures outlined
in
27
28
Section
146-611(c). 28
Second,
R. Doc. 1 at 3-4 (emphasis in original).
Id. at 5.
15
Plaintiff
argues
that
his
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 16 of 26
Fourteenth Amendment rights were violated when he was not permitted
the same opportunity as Mayor Landrieu to present his argument
before the entire City Council. 29
As to Plaintiff’s first argument, he must first allege that
he and Mayor Landrieu were similarly situated when they petitioned
the City Council to initiate the review process to remove the
monuments. See Lindquist, 669 F.3d at 234. Plaintiff alleges that
he and Mayor Landrieu were similarly situated because they both
petitioned the City Council to initiate the review process to
remove monuments as electors of the city under Section 146-611. 30
The Court is uncertain whether qualifying as an elector of the
city, alone, is sufficient to satisfy the “similarly situated”
prong. 31 When a case involves the application of an ordinance or
statute, like this one, the Fifth Circuit instructs courts to
examine the plaintiff’s and comparator’s relationships with the
ordinance when analyzing the similarly situated prong. Lindquist,
669 F.3d at 234. However, the Fifth Circuit also noted that the
inquiry cannot be rigid and requires courts to consider “the full
variety
of
factors
that
an
objectively
29
reasonable
.
.
.
Id. at 4.
Id. at 3-6.
31 The present situation is different than the typical “class-of-one” claim. The
Fifth Circuit has recognized three different types of class of one claims. See
Lindquist, 656 F. Supp.2d at 685. They include “selective enforcement,”
“personal vindictiveness,” and adverse zoning permit decisions. Id. (citing
Beleer v. Rounsavall, 328 F.3d 813 (5th Cir. 2003); Shipp v. McMahon, 234 F.3d
907 (5th Cir. 2000); Bryan v. City of Madison, Miss., 213 F.3d 267 (2000)).
Plaintiff’s claim does not squarely fit within any of these, but rather shares
characteristics of each.
30
16
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 17 of 26
decisionmaker would have found relevant in making the challenged
decision.” Id. at 233 (citing Griffin Indus., Inc. v. Irvin, 496
F.3d 1189, 1203 (11th Cir. 2007)). The Court has not identified a
case where one single criterion between two persons satisfies the
similarly situated prong, and this is probably for good reason.
Presumably, any person can find some similarity between herself
and another to suggest that the two are similarly situated. In
this
case,
however,
one
noticeable
difference
between
Mayor
Landrieu and Plaintiff is that the two requested the review of
different monuments, each with particular and unique reasons for
their suggested removal. But even assuming that Plaintiff and Mayor
Landrieu were similarly situated, which the Court does not decide,
Plaintiff’s request must fail for a similar, but equally sufficient
reason—there was a rational basis for the City Council to initiate
the
review
procedure
upon
Mayor
Landrieu’s
request
and
not
Plaintiff’s request.
Plaintiff argues that “the rule of law was bent to favor
Defendant Landrieu who holds the highest influence within the City
of New Orleans’ hierarchy of power.” 32 However, Plaintiff makes no
argument that the City Council acted irrationally 33 or arbitrarily
32
R. Doc. 1 at 5.
Plaintiff’s sur-reply makes the conclusory statement that he can prove the
City Council’s actions were irrational and discriminatory. (R. Doc. 127.)
However, a complaint cannot simply “leave open the possibility that a plaintiff
might later establish some ‘set of [undisclosed] facts’ to support recovery.”
Twombly, 550 U.S. at 561 (citations and internal alterations omitted). Further,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
33
17
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 18 of 26
when it denied Plaintiff’s petition to initiate the review process
pursuant to Section 146-611. Plaintiff merely presents arguments
as to why the City Council should have initiated the review process
to remove the Andrew Jackson statue. 34 In fact, Plaintiff’s own
argument shows that the City Council, or its subcommittee, may
have bent the rules in Plaintiff’s favor by granting him an inperson
presentation.
Section
146-611
provides
that
“upon
presentation of a request of an elector of the city,” the City
Council “may” conduct a hearing to determine whether a monument or
statue should be removed. New Orleans, La., Code of Ordinances §
146-611(b) (1995). The ordinance does not grant nor guarantee any
elector of the city the right to present a fifteen-minute proposal
in support of their position. See id. More importantly, Defendants
have presented several rational reasons why the City Council may
have initiated the review procedure upon Mayor Landrieu’s request
and not Plaintiff’s. The City Council may have determined that the
Andrew Jackson statue occupies the center frame of New Orleans’
most famous, historic, and heavily photograph public square, is
not tainted by the same degree of invidious animus, or that the
open legal issues raised by removal of the Confederate monuments
should be resolved before additional monuments are considered for
removal. 35 These are just some of the numerous rational reasons the
34
35
R. Doc. 117 at 14-18.
R. Doc. 112-1, at 11-12.
18
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 19 of 26
City Council may have considered. Because the Court finds that
there is a rational alternative explanation for the City Council’s
decision, and because the City Council is granted discretion in
deciding which matters to review and not review, Plaintiff’s class
of one equal protection claim is not plausible. See Engquist v.
Or. Dept. of Agric., 553 U.S. 591 (2008); 36 Jabary, 547 F. App’x
at
605
(dismissing
plaintiff’s
equal
protection
claim
where
government had an “obvious alternative explanation” for differing
treatment); Hines v. Alldredge, 783 F.3d 197, 203 (5th Cir. 2015)
(affirming district court’s dismissal on a 12(b)(6) motion to
dismiss where there was a rational basis for the classification);
Capital Inv. Fund, 2015 WL 1737954, at *9 (dismissing plaintiffs’
class of one equal protection claim on a Rule 12(b)(6) motion to
dismiss where stated explanation for differential treatment was
not irrational or arbitrary); Dennis Melancon, 2014 WL 1117881, at
*7 (dismissing plaintiff’s equal protection claim on a 12(b)(6)
motion to dismiss where local ordinances were rationally related
36
In Engquist, the Supreme Court explained that “there are some forms of state
action, however, which by their nature involve discretionary decisionmaking
based on a vast array of subjective, individualized assessments. In such cases
the rule that people should be ‘treated alike, under like circumstances and
conditions’ is not violated when one person is treated differently from others,
because treating like individuals differently is an accepted consequence of the
discretion granted. In such situations, allowing a challenge based on the
arbitrary singling out of a particular person would undermine the very
discretion that such state officials are entrusted to exercise.” Engquist, 553
U.S. at 603. The City Council is not required to initiate the Section 146611(c)’s review procedure for every issue that is presented. If such a procedure
was permitted, it would undermine the very discretion that the City Council
members are entrusted to exercise. The Court finds this as another reason why
Plaintiff’s equal protection challenge must be dismissed.
19
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 20 of 26
to a legitimate government interest); Bennet, 2004 WL 60316, at *5
(dismissing plaintiffs’ equal protection claims on a Rule 12(b)(6)
motion to dismiss because the city’s actions were rationally
related to the city’s interests); Miller, 784 F.3d at 1121-23
(affirming district court’s dismissal of plaintiff’s complaint on
defendant’s 12(b)(6) motion to dismiss where there was a rational
basis for the challenged action).
Plaintiff’s second argument—that his Fourteenth Amendment
rights were violated when he was not permitted the same opportunity
as Mayor Landrieu to present his petition before the entire City
Council—must also be dismissed for failure to state a class of one
equal protection claim. Plaintiff argues that Mayor Landrieu was
allowed to address an entire panel of the City Council when he
requested that it initiate the review procedures pursuant to
Section 146-611. 37 Plaintiff argues that when he requested such a
review under the same ordinance, he was only permitted to appear
before
the
Government
Affairs
Committee
before
three
council
members. 38
Plaintiff contends that Mayor Landrieu was granted a hearing
before the entire City Council pursuant to Section 146-611. Even
accepting this as true, 39 and that Plaintiff and Mayor Landrieu
were similarly situated, Plaintiff has failed to demonstrate or
37
38
39
R. Doc. 1 at 4.
Id.
Defendants argue that this is not true. (R. Doc. 112-1, at 12-13.)
20
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 21 of 26
even allege that there is no rational basis for why he was treated
differently, other than point to the mayor’s political position.
However, as noted previously in this opinion, there is at least a
rational basis for this differing treatment. 40 Additionally, Mayor
Landrieu is granted the right to attend council meetings and have
a voice in such proceedings pursuant to Home Rule Charter Section
4-206. The Home Rule Charter explicitly gives Mayor Landrieu the
power to: (1) Present to the City Council messages of information
which are necessary or expedient; (2) Attend City Council meetings
and have a voice in the proceedings; (3) Call special sessions of
the City Council; and (4) Veto ordinances. New Orleans, La. Home
Rule Charter § 4-206(2)(a)-(d). Private citizens are not granted
any right pursuant to Section 146-611 to present an in-person
presentation demonstrating why a monument or statue should be
removed. See New Orleans, La., Code of Ordinances § 146-611 (1995).
This, along with a myriad of other conceivable reasons, provides
a rational basis for the City Council’s “unequal” treatment.
Because the Court finds that there is an obvious and rational
alternative
explanation
for
the
City
Council’s
differential
treatment of Plaintiff and Mayor Landrieu, Plaintiff’s second,
class-of-one equal protection claim must also be dismissed. See
Engquist, 553 U.S. at 603; Jabary, 547 F. App’x at 605; Capital
40
Id. at 11-12.
21
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 22 of 26
Inv. Fund, 2015 WL 1737954, at *9; Dennis Melancon, 2014 WL
1117881, at *7; XP Vehicles, 118 F. Supp. 3d at 78; Miller, 784
F.3d at 1121-23.
2.
Fourteenth Amendment: Due Process
Throughout his complaint, Plaintiff argues that he did not
receive “similar due process.” 41 Because Plaintiff has filed this
lawsuit pro se, the Court shall liberally construe Plaintiff’s
complaint as attempting to allege a violation of his due process
rights under the Fourteenth Amendment. Plaintiff’s complaint does
not implicate a deprivation of life or liberty. Therefore, the
Court
must
be
able
to
construe
some
plausible
argument
from
Plaintiff’s complaint that he has been denied a protected property
interest in violation of his substantive or procedural due process
rights.
a.
Procedural Due Process
Procedural due process “imposes constraints on governmental
decisions that deprive individuals of ‘liberty’ or ‘property’
interests within the meaning of the Due Process Clause of the Fifth
or Fourteenth Amendment.” Nobles, 2012 WL 1865711, at *4 (quoting
Mathews v. Eldridge, 424 U.S. 319, 332 (1976)). The Fourteenth
Amendment's procedural protection of property is a safeguard of
security
41
of
interests
that
a
person
R. Doc. 1 at 4.
22
has
already
acquired
in
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 23 of 26
specific benefits. Roth, 408 U.S. at 576. To have a property
interest in a benefit, a person must have more than an abstract
need or desire for it. Id. at 577. He must have more than a
unilateral
expectation
of
it.
Id.
He
must,
instead,
have
a
legitimate claim of entitlement to it. Id. Property interests are
created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state
law—rules or understandings that secure certain benefits and that
support claims of entitlement to those benefits. Id. In order to
state a valid procedural due process claim, a plaintiff must allege
(1) the deprivation of a protected property or liberty interest,
and (2) that the deprivation occurred without due process of law.
Grimes v. Pearl River Valley Water Supply Dist., 930 F.2d 441, 444
(5th Cir. 1991).
Plaintiff has not alleged, nor does Section 146-611 provide,
that he has a life, liberty, or property right to present his
arguments
to
a
fully
empaneled
City
Council.
Consequently,
Plaintiff’s procedural due process claim must be dismissed. See
Nobles, 2012 WL 1865711, at *5.
b.
Substantive Due Process
“A violation of substantive due process . . . occurs only
when the government deprives someone of liberty or property” or,
in
other
words,
when
the
government
deprives
a
person
of
a
constitutionally protected interest. Simi Inv. Co, 236 F.3d at 249
23
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 24 of 26
(quoting Brennan v. Stewart, 834 F.2d 1248, 1257 (5th Cir. 1988)).
In order to assert a substantive due process claim, Plaintiff must
at least demonstrate the deprivation of a protected property
interest established through some independent source such as state
law. Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1046 (5th
Cir. 1998). If such a property right exists, the question becomes
“whether
a
rational
basis
exists
between
the
policy
and
a
conceivable legitimate objective. If the question is at least
debatable, there is no substantive due process violation.” FM Prop.
Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996).
“Only an abuse of power that ‘shocks the conscience’ is actionable
through a substantive due process claim.” Nobles, 2012 WL 1865711,
at *5 (citing McClendon v. City of Columbia, 305 F.3d 314, 325
(5th Cir. 2002)). Here, Plaintiff has not alleged, nor proven,
that he has been deprived of a protected property interest through
some
independent
source.
Further,
even
if
Plaintiff
had
established such right, he has not alleged, nor proven, that the
City Council’s failure to allow him to petition a fully empaneled
council “shocks the conscience.” See Nobles, 2012 WL 1865711, at
*5 (dismissing substantive due process claim on 12(b)(6) motion to
dismiss
where
plaintiff
sufficiently
egregious
to
conscience).
Accordingly,
failed
rise
to
to
the
Plaintiff’s
claim must also be dismissed.
24
demonstrate
level
of
substantive
conduct
was
shocking
the
due
process
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 25 of 26
3.
Defendants' Request for Attorney’s Fees
Pursuant to 42 U.S.C. § 1988, a court may, in its discretion,
award attorney’s fees to the prevailing party in a section 1983
action. See Allen v. Lowe, No. 14-204, 2015 WL 1021695, at *2 (E.D.
La. 2015) (noting availability of attorney’s fees for prevailing
defendant in section 1983 action). “A prevailing defendant is
entitled to fees only when a plaintiff’s underlying claim is
frivolous, unreasonable, or groundless.” Id. (quoting Myers v.
City of W. Monroe, 211 F.3d 289, 292 (5th Cir. 2000)). “A court
must ask whether the case is so lacking in arguable merit as to be
groundless or without foundation rather than whether the claim was
ultimately unsuccessful.” Id. (quoting Offord v. Parker, 456 F.
App’x 472, 474 (5th Cir. 2012)). “To determine whether a claim is
frivolous or groundless, [the Fifth Circuit has] stated that courts
may examine factors such as: (1) whether the plaintiff established
a prima facie case; (2) whether the defendant offered to settle;
and (3) whether the court dismissed the case or held a full trial.”
Id. (quoting Doe v. Silsbee Indep. Sch. Dist., 440 F. App’x 421,
425 (5th. Cir. 2011)).
In opposition to Defendants’ request for attorney’s fees,
Plaintiff argues that his lawsuit was not filed frivolously, but
rather to protect his constitutional rights to due process and
25
Case 2:15-cv-06905-CJB-DEK Document 135 Filed 10/04/16 Page 26 of 26
equal
protection
under
the
law. 42
Applying
the
three
factors
provided by the Fifth Circuit, an award of attorney’s fees might
be appropriate in this case. Plaintiff’s lawsuit is truly an empty
gesture. Plaintiff asks this Court to force the City Council to
initiate the legal procedure to remove the Andrew Jackson statue.
Yet, in the same breath, Plaintiff has publicly stated that he
“does not want to see any statues taken down” and that “his
petition isn’t calling for Jackson’s removal.” 43 The impetus behind
this lawsuit is merely to place the Mayor and the City Council in
a quandary—Jackson, too, or none at all. However, considering
Plaintiff’s pro se status, the Court will exercise its discretion
to not award attorney’s fees.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss (R.
Doc.
112) is GRANTED.
Plaintiff’s
claims
are
DISMISSED
PREJUDICE. 44
New Orleans, Louisiana this 3rd day of October, 2016.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
42
43
44
R. Doc. 117 at 11.
R. Doc. 112-2 at 4.
This Order and Reasons applies to case 16-12495 and 15-6905.
26
WITH
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