Strangmeier v. The City of Houston Texas et al

Filing 9

MOTION to Dismiss 1 Complaint by City Of Houston, Annise Parker, filed. Motion Docket Date 11/3/2011. (Attachments: # 1 Proposed Order)(Stevens, Elizabeth)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN STRANGMEIER,
Plaintiff,
v.
CITY OF HOUSTON, ET AL.
Defendants.

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Civil Action No.: 4:11-CV-3463
(Jury T r ia l D e m anded)

CITY OF HOUSTON’S AND MAYOR ANNISE PARKER’S
RULE 12(b)(6) AND 12(b)(1) MOTION TO DISMISS
John Strangmeier filed this suit alleging that his receipt of a red light citation from the
City of Houston violated his Fourth, Fifth and Fourteenth Amendment rights under the
United States Constitution. On the face of Strangmeier’s Original Complaint, he fails to state
a claim on which relief can be granted. The receipt of a civil traffic citation simply does not
rise to the level of a Fourth Amendment violation. Further, Strangmeier has entirely failed
to articulate any cognizable Fifth or Fourteenth Amendment claims, and even if he had, the
claims are not ripe for adjudication because Strangmeier affirmatively pleads that he is
currently contesting the citation through the process afforded to him and thus no property has
been taken from him. Moreover, the takings claim and related due process claim are not ripe
in federal court until Strangmeier has sought a remedy for the alleged violations in state
court. Because Strangmeier has failed to state any viable Constitutional claims, his claims
against Mayor Annise Parker in her individual capacity must be dismissed as well.

I. Background Facts and Plaintiff’s Pleadings
This case concerns a citation issued under the City of Houston’s red light camera
program, which is the subject of litigation before this Court in City of Houston v. American
Traffic Solutions, Inc., Civil Action No. 4:10-CV-4545. The program was instituted by
Houston’s City Council in 2004, and in November 2010, a citizen-initiated Charter
amendment passed which purported to prohibit the City from using red light cameras to issue
traffic citations. On June 17, 2011, this Court issued an interlocutory order voiding the
charter election and the amendment. City of Houston v. American Traffic Solutions, Inc.,
2011 WL 2462670 (S.D.Tex. June 17, 2011) (slip copy).
Plaintiff John Strangmeier alleges that “on July 9, 2011, Mayor Parker unilaterally
turned the cameras back on without Houston City Council input and on July 24, 2011, the
City began issuing red light camera tickets at the 70 red light camera locations until August
24, 2011.” (Complaint, p. 3, ¶ 12). Strangmeier alleges that he received a red light camera
citation on September 9, 2011 “that alleged he ran a red light on July 18, 2011, and
requesting he pay $75.” (Complaint, p. 4, ¶ 14). He states that he has set a hearing date to
challenge the ticket and that his counsel in this suit is representing him that proceeding as
well. (Complaint, p. 4, ¶ 14). He does not allege that he did not run the red light or that the
citation was otherwise issued in error.

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II. Argument and Authorities
A.

Strangmeier has failed to state a claim.
In reviewing a motion to dismiss under Rule 12(b)(6), the court must accept the well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff. Leatherman
v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct.
1160, 122 L.Ed. 517 (1993). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Alt. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, plaintiff must
“‘raise a right to relief above the speculative level.’” Nationwide Bi-Weekly Admin., Inc. v.
Belo Corp., 512 F.3d 137, 140 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 570).
1.

Strangmeier’s receipt of a traffic citation does not implicate the Fourth
Amendment.

To state a claim under the Fourth Amendment of the United States Constitution, a
person must allege that he was subjected to an illegal search or seizure. Plaintiff’s Original
Complaint is devoid of any such allegation. Plaintiff’s Fourth Amendment claim, as set out
in its entirety in his Original Complaint, is as follows:
Defendants violated John Strangmeier’s Fourth Amendment rights, at least,
when they sent him notice of a violation causing him to at least have to read
the notice, go on-line to see the alleged violation, and then contact the City of
Houston to schedule a hearing. These acts John did not want to do and they
violated his liberty interests.
(Complaint, p. 4, ¶ 16). Strangmeier does not allege that he was subjected to any illegal
search – nor could he – since a motorist has no privacy interest in his license plate number
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or other information in the pubic view. See, e.g., Olabisiomotosho v. City of Houston, 185
F.3d 521, 529 (5th Cir. 1999)).
It is also well-established that issuance of a citation does not constitute a seizure.
“[T]he issuance of a citation, even under threat of jail if not accepted, does not rise to the
level of a Fourth Amendment seizure.” Martinez v. Carr, 479 F.3d 1292, 1299 (10th Cir.
2007); See, e.g., Karam v. City of Burbank, 352 F.3d 1188, 1194 (9th Cir. 2003). In cases
similar to this one, courts have specifically held that the issuance of a traffic ticket as a result
of a photo enforcement system does not implicate the Fourth Amendment:
Plaintiff claims that his Fourth Amendment rights were violated when he was
served with a falsely certified traffic ticket. Plaintiff argues that the was seized
without probable cause because defendants did not compare the image of the
driver on the ticket to the picture on his driver’s license before issuing the
ticket, serving process, and haling him into court. . . . [P]laintiff did not suffer
a Fourth Amendment violation. A traffic citation is not a seizure under the
Fourth Amendment.
Gutenkauf v. City of Tempe, 2011 WL 1672065, *2 (D.Ariz. May 4, 2011) (citing McNeill
v. Town of Paradise Valley, 44 Fed. Appx. 871, *1 (9th Cir. 2002) (unpublished opinion)
(“sending a traffic citation to the registered owner of a vehicle based on the photo radar
system does not constitute a seizure under the Fourth Amendment.”)).
Strangmeier merely received the civil citation in the mail, and alleges that he had to
look at and respond to it. These allegations do not state any Fourth Amendment violation
and should be dismissed under Rule 12(b)(6) for failure to state a claim. See DePiero v. City
of Macedonia, 180 F.3d 770, 789 (6th Cir. 1999), cert. denied, 528 U.S. 1105, 120 S.Ct. 844,

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145 L.Ed.2d 713 (2000) (issuance of parking ticket does not amount to a seizure).
2.

Strangmeier has failed to state any claim under the Fifth or Fourteenth
Amendments.

Strangmeier has also entirely failed to articulate any cognizable Fifth or Fourteenth
Amendment claims. He alleges only that:
The red light camera system was nullified by the Houston voters yet John is
still required to defend himself against the ticket and this violates due process
as does many other elements of Houston’s red light camera ordinance and
procedure including that the affidavits used to enforce the citations are
conclusory.
(Complaint, p. 4, ¶ 17). Although Strangmeier may not agree with this Court’s decision
invalidating the voters’ “nullification” of the red light camera system, his disagreement is not
of constitutional dimensions. In order to state a valid taking or due process claim, a plaintiff
must allege a denial of a cognizable property or liberty interest. Wooley v. City of Baton
Rouge, 211 F.3d 913, 919 (5th Cir. 2000). Strangmeier does not allege that he has paid the
fine or that he has been denied any other cognizable property or liberty interest, and thus has
failed to state a claim under the Fifth and Fourteenth Amendments.
3.

Other claims

Strangmeier also cites to the First Amendment in his request for attorney’s fees and,
curiously, to “her state law malicious prosecution claim” in his prayer for relief (Complaint,
p. 5, ¶ 20; p.6, ¶ C) but has otherwise alleged no factual or legal basis for either claim, and
so these claims should be dismissed for failure to state a claim.

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B.

Even if Strangmeier had stated any valid Fifth or Fourteenth Amendment claims
they are not ripe and should be dismissed for want of subject matter jurisdiction.
Whether the court has subject matter jurisdiction to hear a case may be raised by a

Rule 12(b)(1) motion, and the party asserting jurisdiction carries the burden of proof.
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). A facial attack to subject
matter jurisdiction simply requires the court to determine whether the allegations of the
complaint, which are presumed to be true, provide a basis for jurisdiction. See, e.g.,
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct.
396, 70 L.Ed.2d 212 (1981); Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1998).
Ripeness is an essential component of subject matter jurisdiction. Sample v. Morrison, 406
F.3d 310, 312 (5th Cir. 2001), and a case is not ripe if further factual development is
required. New Orleans Public Service, Inc. v. Council of City of New Orleans, 833 F.2d 583,
587 (5th Cir. 1987).
Strangmeier alleges in his complaint that he has retained counsel and has set a hearing
to contest the citation. Chapter 707 of the Texas Transportation Code sets out the required
appeal process which involves both a hearing before an Administrative Adjudication Officer
and a subsequent appeal to a municipal court judge. See Tex. Transp. Code, § 707.014707.016. An appeal stays enforcement and collection of the civil penalty. Id. at § 707.016(d).
Thus, even assuming that Strangmeier could state a valid Fifth or Fourteenth Amendment
claim under these facts, the claim is simply not ripe because Strangmeier has affirmatively
pled that the process that he is afforded to contest the citation has not yet been concluded.
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(Complaint, p. 4, ¶ 14).
In addition, even if Strangmeier had alleged that the process to challenge his ticket
had been concluded and that his property had been taken, Fifth Amendment takings claims
under the federal Constitution are not ripe for consideration until all state law remedies have
been exhausted. Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S.
172, 186, 105 S. Ct. 3108, 87 L. Ed.2d 126 (1985). To allege a ripe Fifth Amendment
takings claim, a plaintiff must allege that he has availed himself of the state’s procedures to
seek redress or that there are no available state procedures. John Corp. v. City of Houston,
214 F.3d 573, 579 (5th Cir. 2000). Because Strangmeier has not pled that he has exhausted
his state law remedies for the alleged taking, his Fifth Amendment takings claims is unripe,
thus depriving the trial court of subject-matter jurisdiction. Id. Similarly, until the Fifth
Amendment takings claim is ripe, the Fourteenth Amendment due process claims are not
ripe. See John Corp., 214 F.3d at 585-86 (“it will only be when a court may assess the
takings claim that it will be able to examine whether [plaintiffs] were afforded less procedure
than is constitutionally required.”).
C.

Strangmeier has failed to state any claims against Mayor Annise Parker in her
individual capacity.
Strangmeier’s claims against Mayor Parker in her individual capacity are also

completely devoid of any merit. Government officials acting within their discretionary
authority are entitled to qualified immunity, and are liable in their individual capacities only
for conduct that violates clearly established statutory or constitutional rights of which a
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reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808,
815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982)). Courts undertake a two-step analysis to determine if a
defendant is entitled to qualified immunity: (1) did the defendant violate a constitutional
right; and (2) was the right clearly established. Pearson, 129 S.Ct. at 818.
Strangmeier’s claims against Mayor Parker are merely an undisguised attempt to seek
punitive damages:
Mayor Parker is sued individually and is liable for punitive damages as The
Mayor was consciously indifferent to the plaintiff’s constitutional rights and
she did the acts knowingly, such acts being extreme and outrageous and
shocking to the conscious.
(Complaint, p. 5, ¶ 19). The only factual allegation in the complaint that involves Mayor
Parker is that – after this Court invalidated the charter amendment that would have required
the red light camera program be discontinued – Mayor Parker “unilaterally turned the
cameras back on without Houston City Council input . . . ” (Complaint, p. 3, ¶ 12).
Strangmeier does not even attempt to articulate how this action – “turning the cameras on”
in accordance with the existing state and local laws – could in any way be construed as a
constitutional violation.

And, because Strangmeier has failed to articulate any valid

constitutional claim in his complaint, his claims against Mayor Parker in her individual
capacity should be dismissed for failure to state a claim.

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III. Conclusion
Plaintiff’s Original Complaint against the City of Houston and Mayor Annise Parker
should be dismissed in its entirety for failure to state any valid constitutional claim against
either defendant and additionally because the Fifth and Fourteenth Amendment claims are
not ripe for adjudication.
Respectfully submitted,
DAVID M. FELDMAN
City Attorney
LYNETTE K. FONS
First Assistant City Attorney
DONALD J. FLEMING
Senior Assistant City Attorney
Chief, Labor Section
/s /Elizabeth L. Stevens
Elizabeth L. Stevens
Attorney In Charge
Senior Assistant City Attorney
Federal ID 20100; SBN 00792767
[e-mail]
Andrea Chan
Senior Assistant City Attorney
Federal ID 14940; SBN 04086600
[e-mail]
City of Houston Legal Department
P.O. Box 368
Houston, Texas 77001-0368
Phone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANT
CITY OF HOUSTON
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion was served in
accordance with the Federal Rules of Civil Procedure on this the 13 th day of October, 2011.

Randall L. Kallinen
Law Office of Randall L. Kallinen PLLC
511 Broadway Street
Houston, Texas 77012

Via efiling

/s/ Elizabeth Stevens
Elizabeth Stevens

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