Cities4Life, Inc. v. City of Charlotte et al
Filing
29
ORDER Granting in part and Denying in part 11 Motion to Dismiss. All claims with respect to Defendants Department of Housing and Neighborhood Services (HNS) and City of Charlotte Division of Code Enforcement (DCE) are DISMISSED. Signed by Senior Judge Graham Mullen on 9/18/2018. (jaw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
NO. 3:17-cv-670
CITIES4LIFE, INC.,
a/k/a CITIES4LIFE CHARLOTTE;
DANIEL PARKS; and
PATRICK COURTNEY;
Plaintiffs,
v.
ORDER
CITY OF CHARLOTTE, et al.,
Defendants.
THIS MATTER is before the Court on the Motion to Dismiss (Doc. No. 11) filed jointly
by the Defendants. The Plaintiffs have responded, and Defendants have filed a reply. This
matter is now ripe for adjudication. For the following reasons, Defendants’ Motion is granted in
part, denied in part.
I. BACKGROUND
A. Factual Background
Plaintiffs Cities4Life, Inc., Daniel Parks, and Patrick Courtney (collectively, “Plaintiffs”)
brought this civil rights action against: the City of Charlotte; Marcus D. Jones in his official
capacity as City Manager of Charlotte (“Jones”); the City of Charlotte Department of Housing
and Neighborhood Services (“HNS”); the City of Charlotte Division of Code Enforcement
(“DCE”); Ben Krise, individually and in his official capacity as City of Charlotte Code
Enforcement Division Manager (“Krise”); Mandy Edwards, individually and in her official
capacity as a City of Charlotte Code Enforcement Inspector (“Edwards”); Mark Fowler,
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individually and in his official capacity as a City of Charlotte Code Enforcement Inspector
(“Fowler”); Kimberly Sauer, individually and in her official capacity as a City of Charlotte
N&BS Area Supervisor (“Sauer”); and Jane Does 1–5 and John Doe 1, individually and in their
official capacities as City of Charlotte employees (“Does”) (collectively, “Defendants”).
The factual allegations contained in the Complaint are presumed to be true at this stage of
the litigation, and thus the Court relies on them for purposes of resolving this motion alone.
According to the Complaint, Plaintiff Cities4Life, Inc. (“Cities4Life”) is a “faith-based
organization that seeks to engage, strengthen, and support local churches and Christians to
proclaim, protect, and provide life for unborn babies in each city across the United States where
abortion exists.” (Compl., ¶ 17). Plaintiff Daniel Parks (“Parks”) is the Executive Director of
Cities4Life, and Plaintiff Patrick Courtney (“Courtney”) is a Missionary for Help Pregnancy
Center in Monroe, North Carolina. (Compl., ¶¶ 20, 21).
Cities4Life regularly assembles volunteers and counselors outside of abortion facilities in
order to “preach[] the Gospel and speak[] the Truth” to women contemplating an abortion.
(Compl., ¶¶ 48–49). Specifically, Cities4Life volunteers hand out information to women going
into abortion clinics about “the alternatives to abortion and the means by which they can obtain
tangible help in their difficult situation” and pray for “specific immediate needs they encounter
in front of abortion centers.” (Compl., ¶ 50). As a part of this work, Cities4Life employs the use
of signs and placards that are large enough to be seen by individuals entering abortion facilities.
(Compl., ¶ 51).
The Charlotte City Code regulates signs within public rights-of-way and on public
property. Specifically, the Code provides, in relevant part:
(a) It shall be unlawful for any person to attach, place, paint, write, stamp or paste any
sign within 11 feet of the edge of any pavement of any roadway or alley.
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(b) It shall be unlawful for any person to attach, place, paint, write, stamp or paste any
sign within any public rights-of-way.
(c) It shall be unlawful for any person to attach, place, paint, write, stamp or paste any
sign upon any post, pole, tree, tree stake or guard, shrub, or fire hydrant.
(d) It shall be unlawful for any person to attach, place, paint, write, stamp or paste any
sign upon anything else within 11 feet of the edge of the public rights-of-way, upon
any bridge or overpass within the city limits, or upon other public property including,
but not limited to, traffic medians.
(e) Exceptions. This section shall not apply to the following signs:
1. Signs regulating traffic.
2. Signs required to be posted by law.
3. Warning signs and no trespassing signs.
4. Signs indicating bus stops, taxi stands and similar transportation facilities.
5. Signs not exceeding four square feet in area giving information concerning the
location or use of accessory off-street parking facilities or loading and
unloading facilities.
6. Signs established by governmental agencies.
7. Signs permitted by the state board of transportation along state-mandated
streets. Proof of permission must be shown upon request.
8. Nothing in this section shall apply to the painting of house numbers on curbs
done with the prior approval of the engineering department.
9. Nothing in this section shall apply to the installation of a plaque, plate, statue,
or monument on public property with the approval of the city council.
10. Nothing in this section shall apply to the removal of an illegally placed sign
which is in violation of this section.
11. A violation of any provision of this section shall not constitute an infraction or
misdemeanor punishable under G.S. 14-4.
(f) Responsible person. The responsible person for any signs in violation of subsection
(a) through (d) is defined as follows:
1. In the case of a sign advertising a service, product, dwelling, or event, the
responsible person shall be deemed the person hosting or organizing the event
or the person attaching, placing, painting, writing, stamping, or pasting any
sign. Violation of this section shall subject the responsible person to a civil
penalty of $100.00 per sign.
Charlotte, N.C., Code § 10-141 (June 6, 2018).1
1
At the time the Complaint was filed, this provision was listed as § 10-212. See Charlotte, N.C., Code §
10-212 (August 31, 2016), available at:
https://library.municode.com/nc/charlotte/codes/code_of_ordinances/264937?nodeId=PTIICOOR_CH10
HESA_ARTIISOWASE_DIV6MAPRLICO_S10-212SIWIPURI-WPUPR. Thus, the Complaint and
briefs of both parties refer to the code provision as § 10-212. However, the city code was amended, and
the provision is now listed as § 10-141. It appears to the Court that the language supporting the suit
remains unchanged. Further, neither party has argued that the amendments moot the dispute.
Accordingly, the Court will refer to the provision at issue as § 10-141 to reflect the code provision as it
currently exists.
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On June 29, 2017, Parks led a team of Cities4Life volunteers to hand out information on
public property near an abortion clinic called A Preferred Women’s Health Center of Charlotte
(“Preferred Women’s Health”). Defendants Krise and Fowler arrived and confiscated and
subsequently destroyed a canopy belonging to Cities4Life. The canopy was not blocking any
right of way, and it was not affixed permanently or semi-permanently.
On July 5, 2017, Parks and Cities4Life again engaged in their activities near Preferred
Women’s Health and three officials from the DCE arrived and began issuing citations for
violation of City Code § 10-212. Parks received two citations on this date for allegedly violating
City Code § 10-212, both of which were signed by Defendant Edwards. Defendant Sauer
explained that one citation was being issued because “a placard was resting on an individual’s
shoes without her feet actually being inside her shoes.” (Compl., ¶ 86). The officials also seized
and destroyed the placards used by Cities4Life.
On July 11, 2017, Parks and Cities4Life again engaged in their activities near Preferred
Women’s Health. Officials from the DCE arrived, seized two placards that were leaning against
a vehicle, and subsequently destroyed them. When a volunteer sat on a sign, the officials
declined to take it, stating that because it was no longer being “displayed,” there was no violation
of any ordinance. (Compl., ¶ 91).
Similar seizures and destruction of placards belonging to individuals associated with
Cities4Life occurred on August 8, 2017, and August 18, 2017. And on September 16, 2017, both
pro-life and pro-choice groups marched in the vicinity of Preferred Women’s Health carrying
flyers and signs. City officials arrived and issued citations to individuals affiliated with the prolife protesters, but not to pro-choice protesters.
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On November 5, 2017, Parks was issued two additional citations by members of the
DCE, including Defendant Krise, while displaying signs on public property in the vicinity of
Preferred Women’s Health.
Additionally, in the summer of 2017, Courtney spent time “peacefully praying,
preaching, and further exercising his First Amendment rights on public property” near Preferred
Women’s Health. He brought a sign with him, and he held it upright with his hands while the
bottom of the sign rested on the ground. Three officials from the DCE arrived and approached
Courtney. Courtney then put his sign on the ground and sat on it “to protect his property from
the city officials.” (Compl., ¶ 110). The DCE members demanded that he turn over his sign, and
he refused to do so. The officials then left. Courtney alleges that this “threat to take his
property” has made him “fear he will lose his ability to exercise his First Amendment rights and
that the city will confiscate his property.” (Compl., ¶ 115).
B. Procedural Background
As stated above, Parks received two citations for violating § 10-141 on July 5, 2017 and
two additional citations for violating § 10-141 on October 5, 2017, each carrying a $100 fine.
On August 4, 2017, Parks requested an appeal of the first pair of citations issued to him and
reimbursement for the cost of the destroyed placards on behalf of Cities4Life. On October 4,
2017, the City of Charlotte reimbursed the cost of the destroyed property to Parks without
admitting any wrongdoing. On November 9, 2017, Parks again requested an appeal of the July 5
citations as well as an appeal of new citations that had been issued to him on October 5, 2017.
Shortly thereafter, on December 11, 2017, the City of Charlotte rescinded the July 5 citations and
granted Parks’ request for an appeal of his October 5 citations subject to his compliance with the
ordinance appeal provisions, including a bond payment.
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In the meantime, however, Plaintiffs filed their Complaint in this matter on November 11,
2017. The Complaint alleges that Defendants, through their enforcement of § 10-141, violated
the First Amendment of the Constitution; the Due Process and Equal Protection Clauses of the
Fourteenth Amendment; Article I, Section 1 of the North Carolina Constitution; Article I,
Section 14 of the North Carolina Constitution; and Article I, Section 19 of the North Carolina
Constitution. Specifically, Plaintiffs claim that they have “a present and future desire and
intention to engage in lawful First Amendment activity” but “fear being cited by Defendants.”
(Compl., 25).
Defendants now move to dismiss Plaintiff’s claims for lack of subject matter jurisdiction.
Defendants claim that the claims of Parks and Cities4Life are not ripe because Parks has invoked
an appeal of his citations in an administrative hearing, even though he has not yet pursued this
appeal by filing the requisite bond payments. Defendants further argue that Courtney lacks
standing in this case and that the claims of Parks and Cities4Life should be dismissed under the
Younger abstention doctrine.
II. STANDARD OF REVIEW
Federal courts have limited jurisdiction, possessing “only that power authorized by
Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
A motion to dismiss for lack of subject matter jurisdiction must be granted if the court lacks
statutory authority at any time to hear and decide the dispute. Fed. R. Civ. P. 12(b)(1). “The
burden of proving subject matter jurisdiction on a motion to dismiss is on the plaintiff, the party
asserting jurisdiction.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). If the defendant
contends the pleading fails to allege facts upon which subject matter jurisdiction can be based,
then “all the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is
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afforded the same procedural protection as he would receive under a Rule
12(b)(6) consideration.” Id. If the defendant argues that the jurisdictional allegations of the
complaint are untrue, a court “may then go beyond the allegations of the complaint” and
“determine if there are facts to support the jurisdictional allegations.” Id.
III. DISCUSSION
A. Ripeness: Parks and Cities4Life
Defendants first argue that the claims raised by Parks and Cities4Life are not ripe because
the City of Charlotte has not yet made a “final decision” whether the activities of Parks and
Cities4Life violated § 10-141.
Generally, a court assessing ripeness must “balance the fitness of the issues for judicial
decision with the hardship of the parties of withholding court consideration. A case is fit for
judicial decision when the issues are purely legal and when the action in controversy is final and
not dependent on future uncertainties.” Doe v. Va. Dep’t of State Police, 713 F.3d 745, 758 (4th
Cir. 2013) (quoting Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006)). Thus, “[a] claim should
be dismissed as unripe if the plaintiff has not yet suffered injury and any future impact ‘remains
wholly speculative.’” Id. (quoting Gasner v. Bd. of Supervisors, 103 F.3d 351, 361 (4th Cir.
1996)). However, “like standing, ripeness requirements are also relaxed in First Amendment
cases.” Cooksey v. Futrell, 721 F.3d 226, 240 (4th Cir. 2013). This is because even a “chilling
effect” of potential enforcement may unconstitutionally burden free speech. See New Mexicans
for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995).
Defendants argue that Parks and Cities4Life have no ripe claim because Parks could still
post the requisite bond and proceed with an administrative appeal with the City of Charlotte. In
such appeal, Parks could raise the same constitutional arguments in opposition to enforcing § 10-
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141 against him as he does in this matter. According to the Defendants, this makes any injury
suffered by Parks and Cities4Life “wholly speculative.”
While Defendants are correct in noting that Parks has the opportunity to appeal his two
remaining citations to a city administrative body, Defendants’ arguments are clearly foreclosed
by the Fourth Circuit’s decisions in Cooksey, 721 F.3d 226, and Virginia Society for Human Life,
Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001), overruled on other grounds by The Real Truth About
Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012).
In Cooksey, the plaintiff had created a website to share his experiences and advice in
coping with Diabetes, as well as a fee-based “Life-Coaching” service for individualized advice
and moral support. 721 F.3d at 230. The State Board instructed the plaintiff to remove certain
portions of his website in compliance with dietician licensing requirements and regulations. Id.
at 231. He complied with the instructions “because he feared civil and criminal action against
him,” id., and then he subsequently filed suit claiming that the licensing regulations were
unconstitutional on their face and as applied to him by the State Board. The Fourth Circuit found
that the plaintiff’s claim was ripe even though he had not been subjected to any actual
enforcement or punishment pursuant to the licensing regulations because his claims “present[ed]
the question of whether the Act and actions of the State Board unconstitutionally infringe on
[his] rights to maintain certain aspects of his website.” Id. at 240–41. Although the State Board
argued that further review by the Board was needed before the claim could become ripe, the
Fourth Circuit found that the State Board had already “manifested its views” that the regulations
applied to his website by instructing the plaintiff to “change it in accordance with the red-pen
review or face penalties.” Id. at 241.
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Here, Parks and Cities4Life allege that they have been actually subjected to enforcement
proceedings by the City of Charlotte and the DCE on multiple occasions under the authority of §
10-141: (1) Defendants seized and destroyed a canopy from Cities4Life on June 29, 2017; (2)
Defendants issued two citations to Parks on July 5, 2017, and seized and destroyed placards
belonging to Cities4Life; (3) Defendants seized and destroyed two placards belonging to
Cities4Life on July 11, 2017; and (4) Defendants issued two more citations to Parks on
November 5, 2017. And their Complaint clearly alleges that as a result of Defendants’ conduct,
their “speech and message are effectively suppressed and silenced.” (Compl., 24). Thus, their
as-applied challenges to § 10-141 are clearly ripe under the analysis of Cooksey, 721 F.3d 226.
See also Peachlum v. City of York, Pa., 333 F.3d 429, 436 (3d Cir. 2003) (“We recognize that
free speech may be suppressed and a concrete injury may occur merely as a result of the
initiation of enforcement proceedings. We do not now hold that administrative finality applies in
such cases.”).
The facial challenges to § 10-141 raised by Parks and Cities4Life are even more
evidently ripe. A facial challenge to a regulation that “has the force of law” and carries criminal
or civil penalties is generally a “purely legal” question that does not require further factual
development. See Va. Soc. for Human Life, 263 F.3d at 390; see also Peachlum, 333 F.3d at 436
(“[A] facial First Amendment challenge is not normally subject to administrative finality
analysis under any circumstances.”). Here, Parks and Cities4Life have clearly alleged that § 10141, on its face, violates their free speech rights, and thus this claim is also ripe for review at this
time.
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B. Standing and Ripeness: Courtney
Defendants also argue that Plaintiff Courtney lacks standing in this matter.
Generally, a plaintiff seeking to establish standing must show that (1) he has suffered an
injury in fact, (2) that there is a causal relationship between the injury and the conduct
complained of, and (3) that it is likely that the injury will be redressed by a favorable decision.
Cooksey, 721 F.3d at 234–35. Defendants argue that Courtney has not established the first
element, claiming that he has not suffered any past injury and that he has not sufficiently alleged
a prospective chilling of his speech.
“The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Here,
Courtney has alleged that DCE officials encountered him while he was holding a sign and
praying, “demanded” that he turn over the sign, and that he had to put his sign down and sit on it
in order to “protect” it from the officials. (Compl., ¶ 110). Courtney alleges that this “threat to
take his property” has made him “fear he will lose his ability to exercise his First Amendment
rights and that the city will confiscate his property.” (Compl., ¶ 115). Further, he alleges (along
with Parks and Cities4Life) that his “speech and message are effectively suppressed and
silenced,” that he has a “present and future desire and intention” to display signs near abortion
clinics but “fear[s] being cited by Defendants,” and that his speech has been chilled. (Compl.,
118, 121 & 125). Courtney has clearly sufficiently alleged at least a “minimal” deprivation of
his freedom of speech and a prospective chilling based on the terms of § 10-141 to support his
standing in this matter.
Courtney’s claims are also ripe for the same reasons. He has sufficiently alleged a past
injury through the deprivation of his freedom of speech by the DCE officials.
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C. Younger Abstention: Parks and Cities4Life
Defendants next argue that this Court must abstain from resolving the claims of Parks and
Cities4Life in this matter under the doctrine of Younger abstention. See Younger v. Harris, 401
U.S. 37 (1971).
The Supreme Court in Younger held that, pursuant to “Our Federalism” and a “proper
respect for state functions,” federal courts should not enjoin pending criminal proceedings in
state courts “except under extraordinary circumstances, where the danger of irreparable loss is
both great and immediate.” 401 U.S. at 44–45. This doctrine has been extended to prevent
interference with certain types of state civil actions and administrative proceedings as well. See,
e.g., Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619 (1986). However,
the general rule is that abstention does not normally apply to a federal case merely because a
“pending state-court proceeding involves the same subject matter.” Sprint Commc’ns, Inc. v.
Jacobs, 571 U.S. 69, 72 (2013). Rather, circumstances warranting Younger abstention are
“exceptional,” limited to cases where there are: (1) “parallel, pending state criminal
proceedings;” (2) “particular state civil proceedings that are akin to criminal prosecutions; or (3)
proceedings that implicate a State’s interest in enforcing orders and judgments of its courts.” Id.
at 72–73 (internal citations omitted). Defendants argue that this matter fits within the second
category of cases warranting abstention.
The primary test for a court in this context is to determine whether the relevant state
proceeding is “quasi-criminal” in nature. Id. at 81. State proceedings that are akin to criminal
prosecutions are characteristically intended to “sanction the federal plaintiff . . . for some
wrongful act,” are generally initiated by a state actor, and often involve investigations that
“culminat[e] in the filing of a formal complaint or charges.” Id. at 79–80. Additionally, the
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Supreme Court has instructed courts to consider whether the state proceeding is still ongoing,
implicates “important state interests,” and provides “an adequate opportunity in the state
proceedings to raise constitutional challenges.” Middlesex Cty. Ethics Comm. v. Garden State
Bar Ass’n, 457 U.S. 423, 432 (1982). These three Middlesex requirements are not dispositive,
but they are “additional factors appropriately considered” before invoking Younger. Sprint, 571
U.S. at 81 (emphasis in original). “Divorced from their quasi-criminal context, the three
Middlesex conditions would extend Younger to virtually all parallel state and federal
proceedings,” which is “irreconcilable with [the] dominant instruction that . . . abstention from
the exercise of federal jurisdiction is the ‘exception, not the rule.’” Id. at 81–82 (quoting Haw.
Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984)).
The Court finds that abstention clearly does not apply to Cities4Life’s claims. The
citations at issue were only directed to Parks—not to Cities4Life as an organization. Further,
while Cities4Life did join Parks in his notice of appeal to the City of Charlotte, Cities4Life
merely requested reimbursement for the value of destroyed placards and signs. Nothing about
Cities4Life’s request for reimbursement is “quasi-criminal” in nature. Rather, it was initiated by
Cities4Life and risked no sanction or filing of charges.
Further, the City of Charlotte granted this request and reimbursed $565.00 for the
destroyed property. (See Doc. No. 11-1, Exh. 5). Defendants have not shown that Cities4Life
has subsequently requested any further reimbursement. Thus, even if Defendants were correct
that Cities4Life’s request for reimbursement created a state proceeding within the scope of
Younger abstention, it is clear that such proceeding is no longer ongoing in light of the fact that
Cities4Life obtained their reimbursement on or about October 4, 2017—more than a month
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before Cities4Life filed the instant suit. Thus, its prior (and fulfilled) request for reimbursement
is in no way a state civil proceeding akin to criminal prosecution that warrants abstention.
Next, the Court finds that Parks’ notice of appeal of his citations also does not rise to the
level of a quasi-criminal proceeding to which Younger abstention must be applied. A
fundamental element of a quasi-criminal proceeding is that it must be judicial in nature. New
Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 369 (1989). At the
time this case was filed, the procedure for appealing a citation received for a § 10-141 violation
was codified as Charlotte, N.C., Code § 10-66 (August 31, 2016).2 Nothing in this provision
enumerates any procedures or standards of proof to which the City of Charlotte would be held to
prove their case against Parks. Further, no formal complaint was filed against Parks, and no
Code provision guarantees the opportunity for Parks to present witnesses and exhibits. See
Harper v. Pub. Serv. Comm’n of W. Va., 291 F.Supp.2d 443, 455 (S.D. W. Va. 2003), rev’d on
other grounds by 396 F.3d 348 (4th Cir. 2005). And no provision gives the “neighborhood
development key business executive or his designee”—a local volunteer who serves as “hearing
officer”—any authority to enter orders, subpoena witnesses and compel their attendance, compel
the production of documents, or make findings of fact. See Sutton v. N.C. State Bar, No. 5:14CV-243-BR, 2014 WL 4546017, at *6 (E.D.N.C. Sep. 12, 2014) (listing these factors as
evidence that a proceeding was judicial in nature). Accordingly, this Court finds that such a
hearing would not truly be “judicial” in nature, and therefore abstention is not warranted with
respect to the availability of an appeal of Parks’ citation.
2
This procedure has been amended and is now codified as Charlotte, N.C., Code § 10-104. However,
because the older version (§ 10-66) contained the procedures applicable at the time Parks brought this
suit, the Court relies on § 10-66 to evaluate whether the relevant proceedings were “ongoing” and “quasicriminal” in nature. See Fed. Express Corp. v. Tenn. Pub. Serv. Comm’n, 738 F.Supp. 1140, 1143 (M.D.
Tenn. 1990) (“[T]he proper point of reference for determining whether state proceedings are ‘ongoing’ is
the date the federal complaint is filed.”).
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Additionally, the Court notes that the purposes of abstention pursuant to Younger would
not be served in this matter. First, even if the appeals process was a judicial forum warranting
abstention with respect to Parks’ as-applied claims, the as-applied claims of Cities4Life and
Courtney could not be addressed in that forum. Thus, even if the Court required Parks to pursue
a final administrative ruling, Cities4Life and Courtney’s claims would continue which would
create parallel state and federal proceedings. This result directly defies the goals of Younger.
Further, Plaintiffs have shown that facial challenges to the constitutionality of § 10-141
could be not be adequately addressed in that forum. Rather, as Plaintiffs have pointed out, it is
settled North Carolina law that “[w]here an aggrieved party challenges the constitutionality of a
regulation or statute, administrative remedies are deemed to be inadequate and exhaustion
thereof is not required.” Shell Island Homeowners Ass’n, Inc. v. Tomlinson, 517 S.E.2d 406, 412
(N.C. Ct. App. 1999). Thus, the State of North Carolina itself would find the administrative
appeals process to be an inadequate forum to raise a constitutional challenge to one of its
statutes. Accordingly, the third Middlesex factor also weighs against abstaining in this matter.
Accordingly, the Court finds that Younger abstention is not warranted.
D. Liability of HNS and DCE
Finally, Defendants argue that all claims must be dismissed against Defendants HNS and
DCE.
It is clear that HNS and DCE are divisions of the City of Charlotte that lack the capacity
to be sued, and that, as City divisions, they would be bound by any ruling made with respect to
the City of Charlotte. See Lineberger v. Newton Police Dep’t, 5:14-cv-137-RLV-DCK, 2016
WL 5376290, at *3 (W.D.N.C. Sep. 23, 2016).
Accordingly, the Court will dismiss all claims against HNS and DCE.
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IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. No. 11) is GRANTED
IN PART, DENIED IN PART. All claims with respect to Defendants Department of Housing
and Neighborhood Services (HNS) and City of Charlotte Division of Code Enforcement (DCE)
are DISMISSED. The clerk of court is directed to terminated Defendants HNS and DCE from
this case.
SO ORDERED.
Signed: September 18, 2018
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