Vondra et al v. City of Billings et al
ORDER granting 17 Motion to Dismiss and the Individual Defendants are dismissed as parties. Signed by Magistrate Judge Kathleen L. DeSoto on 1/17/2023. (APP)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
THERESA VONDRA, DONNA
PODOLAK, LYNDA LARVIE, and
CITY OF BILLINGS; NICOLE
CROMWELL, in her official capacity
as Code Enforcement Supervisor for
the Department of Code Enforcement
in the City of Billings; RICHARD ST.
JOHN, in his official capacity as Chief
of Police for the Police Department in
the City of Billings; JOANNE
RINDAHL, in her official capacity as
Business Tax Clerk for the Finance
Department in the City of Billings;
ANDREW ZOELLER, in his official
capacity as Director of the Finance
Department in the City of Billings; and
WILLIAM COLE in his official
capacity as Mayor of the City of
Plaintiffs Theresa Vondra, Donna Podolak, Lynda Larvie, and Adam Poulos
bring this action for declaratory and injunctive relief under 42 U.S.C. § 1983,
challenging the constitutionality a City of Billings ordinance regulating massage
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and spa facilities. Defendants Nicole Cromwell, Richard St. John, Joanne Rindahl,
Andrew Zoeller, and William Cole (collectively “Individual Defendants”) move to
dismiss the official capacity claims asserted against them pursuant to Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be
granted. (Doc. 17). The motion is granted for the reasons discussed below.
On April 26, 2021, the City of Billings City Council adopted Ordinance 21-
5757 (“the Ordinance”), titled “An Ordinance of The City of Billings, Montana,
Regulating Massage and Spa Facilities Through Business Licensing Criteria,
Providing Exemptions, Authorizing the City Administrator or Designee to
Administratively Deny, Suspend or Revoke Business Licenses and Allowing an
Appeal From Such Action and Providing for Criminal and Civil Penalties Upon
Conviction of a Violation in Order to Combat Human Trafficking and to Promote
the Health and Welfare of the Billings Community.” 1 (Doc. 1 at ¶ 31).
The Ordinance makes it unlawful for any person to practice massage therapy
for compensation without a valid license from the City of Billings. (Doc. 1 at ¶ 33;
Ordinance Secs.7-1904, 7-1902(o)). The Ordinance authorizes code enforcement
officials and law enforcement officers to “enter a massage therapy business at any
The text of the Ordinance is available https://www.billingsmt.gov/2952/Massageand-Spa-Facilities-License.
Case 1:22-cv-00030-KLD Document 43 Filed 01/17/23 Page 3 of 13
time during business hours to determine compliance with any law under that
person’s jurisdiction….” (Doc. 1 at ¶ 35; Ordinance Sec. 7-1912(c)). The
Ordinance specifies that “all rooms, cabinets, and storage areas shall be subject to
inspection and any locked rooms, cabinets, or storage areas shall be promptly
opened for inspection.” The Ordinance further provides that every licensee must
“[i]mmediately open any locked door, including any exterior door, upon request by
an inspector or law enforcement officer who provide proof of identity,” with the
caveat that no “treatment session in progress” lasting less than two hours may be
interrupted by such a demand. (Doc. 1 at ¶ 37; Ordinance Sec. 7-1911(f)). The
Ordinance also requires every licensee to “keep a complete set of books and
records for the business on site at the facility,” including “a log of all massage
therapy administered,” and provides that “[t]he log and other books and records
shall be subject to inspection upon request by the inspector during normal business
hours.” (Doc. 1 at ¶ 38; Ordinance Sec. 7-1911 (c)).
Plaintiffs Vondra, Podolak, and Larvie are licensed massage therapists in the
City of Billings, and Plaintiff Poulos is one of Vondra’s massage clients. (Doc. 1 at
¶¶ 10-11, 15, 20, 22). On April 6, 2022, Plaintiffs filed this action against the City
of Billings and the Individual Defendants in their official capacities as employees
of the City of Billings. (Doc. 1). Plaintiffs allege that the Ordinance violates their
rights under the Fourth Amendment to the United States Constitution, and assert
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three claims for relief under 42 U.S.C. § 1983. Count I for “physical invasion of
property” alleges that the Ordinance violates the Fourth Amendment on its face
because it subjects “private areas of businesses” and “private business records” to
“unreasonable warrantless searches in the form of physical trespasses” by City of
Billings code enforcement officials and law enforcement officers. (Doc. 1 at ¶¶
107-122). Count II for “invasion of privacy” alleges that the Ordinance violates the
Fourth Amendment on its face because it “confers warrantless search powers” to
City of Billings’ code enforcement officials and law enforcement officers. (Doc. 1
at ¶¶123-137). Count III alleges that the Ordinance is unconstitutional on its face
and as applied because it violates the “unconstitutional conditions doctrine” by
conditioning licensure on the surrender of the applicant’s Fourth Amendment
rights. (Doc. 1 at ¶¶ 138-149).
Plaintiffs request a declaratory judgment that the Ordinance violates the
Fourth Amendment, and injunctive relief permanently enjoining Defendants from
enforcing the Ordinance in its entirety, or in the alternative, enjoining them from
enforcing the Ordinance by conducting future warrantless searches. (Doc. 1 at ¶¶
150-157). Plaintiffs also request an award of nominal damages, attorneys’ fees, and
“all other legal and equitable relief to which [they] may be entitled.” (Doc. 1 at ¶¶
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A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A cause of action
may be dismissed under Fed. R. Civ. P. 12(b)(6) either when it asserts a legal
theory that is not cognizable as a matter of law, or if it fails to allege sufficient
facts to support an otherwise cognizable legal claim. SmileCare Dental Group v.
Delta Dental Plan of California, Inc., 88 F.3d 780, 783 (9th Cir. 1996). When
reviewing a Rule 12(b)(6) motion to dismiss, the court is to accept all factual
allegations in the complaint as true and construe the pleading in the light most
favorable to the nonmoving party. Hospital Bldg. Co. v. Trustees of the Rex
Hospital, 425 U.S. 738, 740 (1976); Tanner v. Heise, 879 F.2d 572, 576 (9th Cir.
To withstand a motion to dismiss under Rule 12(b)(6), “the plaintiff must
allege ‘enough facts to state a claim to relief that is plausible on its face.’” Lazy Y
Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008) (quoting Bell Atlantic
Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)). This means that the plaintiff must
plead “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009). But if the complaint “lacks a cognizable legal theory or
sufficient facts to support a cognizable legal theory,” then dismissal under Rule
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12(b)(6) is appropriate. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097,
1104 (9th Cir. 2008).
42 U.S.C. § 1983 provides a cause of action for the violation of federal
constitutional rights by persons acting under color of state law. To prevail on a
claim under 42 U.S.C. § 1983, “a plaintiff must show (1) that the conduct
complained of was committed by a person acting under color of state law; and (2)
that the conduct deprived the plaintiff of a constitutional right.” Balistreri v.
Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). To be subject to suit
under § 1983, a defendant must be a “person” within the meaning of the statute.
For purposes of liability under § 1983, “municipalities and other local
governmental units” are considered “persons” within the meaning of the statute,
and can be sued for damages. Monell v. Dept. of Social Services, 436 U.S. 658, 690
(1978). Thus, the City of Billings is a person within the meaning of § 1983.
In addition to bringing suit against the City of Billings, Plaintiffs assert §
1983 claims against the Individual Defendants exclusively in their official
capacities. The Individual Defendants argue that Plaintiffs’ official capacity claims
should be dismissed because they are duplicative of the claims Plaintiffs have
asserted against the City of Billings. The Court agrees.
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“A suit against a government officer in his official capacity is equivalent to a
suit against the governmental entity itself.” Larez v. City of Los Angeles, 946 F.2d
630, 646 (9th Cir. 1991). See also Monell, 436 U.S. at 690 n. 55 (“[O]fficialcapacity suits generally represent only another way of pleading an action against
an entity of which an officer is an agent.”); Kentucky v. Graham, 473 U.S. 159,
166 (1985) (An “official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity.”). Because “local government units can be sued
directly for damages and injunctive or declaratory relief” under Monell, “[t]here is
no longer a need to bring official-capacity actions against local government
officials.” Graham, 473 U.S. at 167 n.14.
Several district courts within the Ninth Circuit, including within the District
of Montana, have held thus that official capacity claims are duplicative of Monell
claims brought against a local government entity, and may be dismissed on that
basis. See e.g. Saxon v. City of Dillon, Montana, Montana, 2020 WL 2732133, at
*2 (D. Mont. May 26, 2020) (recognizing that an official capacity suit is treated as
a suit against the employing governmental entity, and dismissing official capacity
claims against a city police officer as “superfluous to” the claims against the city);
Wagemann v. Robinson, 2015 WL 3899226, at *18 (D. Mont. June 16, 2015)
(finding official capacity claims against city police officers were “superfluous to”
the plaintiff’s claims against the city and were subject to summary dismissal on
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that basis); Cox v. Bell, 2010 WL 4102291, at *2 (D. Mont. Sept. 16, 2010)
(similarly recognizing that an official capacity suit against a county sheriff
represented only another way of pleading an action against the county, and
substituting the county as the proper defendant); Vance v. City of Santa Clara, 928
F.Supp. 993, 996 (N.D. Cal. 1996) (“[I]f individuals are being sued in their official
capacity as municipal officials and the municipal entity itself is also being sued,
then the claims against the individuals are duplicative and should be dismissed.”);
Tunistra v. Bonner County, 2021 WL 2534983, at *4 (D. Idaho June 21, 2021)
(dismissing official capacity claims for injunctive relief against a county employee
as redundant of claims against the county). Based on this line of authority,
Individual Defendants argue that the official capacity claims asserted against them
in the Complaint should be dismissed because they are duplicative of Plaintiffs’
claims against the City of Billings.
Plaintiffs disagree, and take the position that their official capacity claims
are not duplicative because they are seeking prospective declaratory and injunctive
relief against the Individual Defendants, rather than monetary damages. According
to Plaintiffs, Monell and its progeny “show only that when a plaintiff names a
government official in a claim for compensatory damages, courts will routinely
substitute the municipal entity for an official sued in his or her official capacity (or
dismiss an individual officer and municipality are sued in tandem for the same
Case 1:22-cv-00030-KLD Document 43 Filed 01/17/23 Page 9 of 13
monetary relief).” (Doc. 27 at 10-11). Plaintiffs argue the result should be
different where, as here, claims for prospective declaratory and injunctive relief are
Plaintiffs rely on Ex parte Young, 209 U.S. 123 (1908), which held that
Eleventh Amendment immunity does not bar suits for prospective declaratory and
injunctive relief against state officials in their official capacity. Plaintiffs also cite
another sovereign immunity case, Will v. Michigan Dept. of State Police, 491 U.S.
58 (1989), for the proposition that unlike official capacity suits for monetary
damages, official capacity suits for prospective injunctive relief are not tantamount
to claims against the employing governmental entity. (Doc. 27, at 9). Plaintiffs
argue that under Ex parte Young and Will, their demand for injunctive relief
against the Individual Defendants is not tantamount to a claim against the City of
Billings, and their official capacity claims should not be dismissed as duplicative.
Plaintiffs’ reliance on Ex parte Young and other sovereign immunity caselaw
is misplaced. Ex parte Young recognized a limited exception to sovereign
immunity that allows a plaintiff to sue state officials acting in an official capacity
for prospective injunctive relief for continuing violations of federal law. Ex parte
Young, 209 U.S. at 155-56. In Will, the Supreme Court held that state officials sued
in their official capacity for damages are not persons for purposes of § 1983, and
that such official capacity claims are barred by the doctrine of sovereign immunity.
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Will, 491 U.S. at 64, 71. As the Supreme Court noted, however, “a state official in
his or her official capacity, when sued for injunctive relief, would be a person
under § 1983 because ‘official-capacity actions for prospective relief are not
treated as actions against the State.’” Will, 491 U.S. at 71 n. 10 (citing Graham,
473 U.S. at 167 n. 14 and Ex parte Young, 209 U.S. 123, 159-160). Will described
this distinction between official capacity suits for money damages and official
capacity suits for prospective injunctive relief as “commonplace in sovereign
immunity doctrine.” Will, 491 U.S. at 171 n. 10 (citation omitted).
Unlike the Eleventh Amendment sovereign immunity caselaw cited by
Plaintiffs, however, Monell and its progeny do not recognize such a distinction. In
fact, Justice Powell’s concurring opinion in Monell observed that the Court of
Appeals had suggested the Supreme Court “import, by analogy, the Eleventh
Amendment fiction of Ex parte Young into § 1983.” Monell, 436 U.S. at 712. As
Justice Powell stated, however, such an approach would “require a bifurcated
application of the generic word ‘person’ in § 1983 to public officials depending on
the nature of the relief sought against them,” since “[a] public official sued in his
official capacity for carrying out official policy would be a ‘person’ for purposes of
injunctive relief, but a non-‘person’ in an action for damages.” Justice Powell
noted that “[t]he Court’s holding avoids this difficulty.” 436 U.S. at 712 (internal
quotations and citations omitted).
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The doctrine of Eleventh Amendment sovereign immunity and the Ex parte
Young exception Plaintiffs analogize to are simply not relevant here. The Eleventh
Amendment provides states with immunity from suit, but that immunity does not
extend to units of local government like the City of Billings. See Hess v. Port Auth.
Trans-Hudson Corp., 513 U.S. 30, 47 (1994) (stating that “cities and counties do
not enjoy Eleventh Amendment immunity”); Beentjes v. Placer County Air
Pollution Control Dist., 397 F.3d 775, 777-78 (9th Cir. 2005) (“[T]he Eleventh
Amendment does not extend its immunity to units of local government.”). Because
the City of Billings is subject to suit under § 1983, this is not a case in which
injunctive relief must be sought against individual officials because the
governmental entity is entitled to sovereign immunity. To the contrary, the
injunctive relief that Plaintiffs seek against the Individual Defendants may be
obtained through their claims against the City of Billings. As one court wrote
under similar circumstances, Plaintiffs do not cite any “authority to support the
proposition that the Ex parte Young doctrine should constitute an exception to the
well-established principle that official-capacity claims against government officials
are duplicative of claims against the entity employing officials.” Daniel v.
Hunstville City Board of Education, 2017 WL 1282319, at * 3 (N.D. Alabama
Apr. 6, 2017).
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Plaintiffs assert there is a “long line of U.S. Supreme Court precedent”
confirming “that naming responsible government officials is an accepted practice,”
and cite three United States Supreme Court cases in which local government
officials were sued along with the government entity employers. (Doc. 27 at 8-9)
(citing Ferguson v. City of Charleston, 532 U.S. 67 (2001); City of Indianapolis v.
Edmond, 531 U.S. 32 (2000); Michigan v. Dep’t of State Police v. Sitz, 496 U.S.
444 (1990)). Significantly, however, the individual defendants in these cases did
not move to dismiss the claims against them, and the cases do not address the
propriety of dismissing official capacity claims against individual defendants as
redundant of claims against a local government entity.
Finally, as counsel for the City of Billings rightly concedes, “any injunction
against the City, if one were awarded to Plaintiffs, would bind Individual
Defendants and all City officials and employees.” (Doc. 34 at 13). Thus, as a
practical matter, it is not necessary for Plaintiffs to bring official capacity claims
against the Individual Defendants to obtain the requested relief. See Cox, 2010 WL
4102291, at *2. Because Plaintiffs’ claims against the Individual Defendants are
duplicative of their claims against the City of Billings, the Individual Defendants
are properly dismissed.
The Court concludes that the deficiencies set forth above cannot be cured by
the allegation of additional facts and amendment would be futile. Thus, dismissal
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with prejudice is appropriate. See Cook, Perkiss & Liehe, Inc. v. N. California
Collection Servs. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (holding “that in
dismissals for failure to state a claim, a district court should grant leave to amend
even if no request to amend the pleading was made, unless it determines that the
pleading could not possibly be cured by the allegation of other facts).
For the reasons discussed above,
IT IS ORDERED that Defendants’ Motion to Dismiss for Failure to State a
Claim under Rule 12(b)(6) is GRANTED, and the Individual Defendants are
dismissed as parties.
DATED this 17th day of January, 2023.
Kathleen L. DeSoto
United States Magistrate Judge
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