United States District Court, D. Arizona
A. Teillrore Senior United States District Judge
before the Court is Plaintiffs’ Motion for Leave to
File Fourth Amended Complaint ("FAC"). (Doc. 100).
Plaintiffs’ motion is in response to the Court’s
January 27, 2016, Order denying Plaintiffs leave to file a
Third Amended Complaint. (Doc. 97). In the Order, the Court
found that the Third Amended Complaint’s proposed
amendments failed to address fatal shortcomings of the Second
Amended Complaint, and that granting Plaintiffs leave to file
would be futile. (Id. at 13). Having received the
parties’ filings and considered oral argument, the
Court now rules on the motion.
Court has, on several occasions, set forth in detail the
factual allegations underlying Plaintiffs’ lawsuit.
(Doc. 97; Doc. 81; Doc 73). The Court need not do so again.
For purposes of this Order, it is sufficient to note that on
January 27, 2016, the Court denied Plaintiffs’ motion
for leave to file a Third Amended Complaint, and granted
Plaintiffs a "final opportunity to amend the Complaint
to attempt to cure the deficiencies identified herein."
(Doc. 97 at 14). Plaintiffs thereafter sought relief from the
Order improperly under Federal Rule of Evidence 59(e). (Doc.
98). On March 3, 2016, Plaintiffs renewed their motion for
leave to file an amended Complaint and filed the proposed
FAC. (Doc. 100). The motion is fully briefed, and oral
argument was heard on June 1, 2016.
noted by the Court in previous Orders, (Doc. 97; Doc. 81;
Doc. 73), leave to amend a complaint should be granted with
"extreme liberality" under Fed.R.Civ.P. 15(a).
Salman v. City of Phoenix, CV-12-01219-PHX-JAT, 2016
U.S. Dist. LEXIS 9462, at *11-12 (D. Ariz. Jan. 27, 2016).
But leave to amend is not granted in perpetuity, and is
subject to certain limitations. Id. at *12. One such
limitation-at issue here-is Plaintiffs’ "repeated
failure to cure deficiencies by amendments previously
allowed." Id. (quoting Schmidt v. PNC
Bank, NA, 591 Fed.Appx. 642, 643 (9th Cir.
proposed FAC includes substantive revisions to the Third
Amended Complaint, and is comprised of six
claims alleged against Defendant City of Phoenix.
Plaintiffs have alleged five violations of their
constitutional rights pursuant to 42, U.S.C. § 1983,
well as a violation of the Free Exercise of Religion Under
the Religious Land Use and Institutionalized Person Act of
2000 ("RLUIPA"), 42 U.S.C. § 2000cc, et seq.
According to Plaintiffs, the proposed FAC (and fifth
iteration of the Complaint) makes "further emphasis on
the violation of the [P]laintiffs’ first, fifth, and
fourteenth amendment rights"; it "also include[s]
some facts . . . in reference to [the Harvest Christian
Fellowship Community Church, Inc.
("HCFCC") and Michael Salman’s
conviction"; and it "show[s] that the [Plaintiffs]
were being attacked for their personal religious gatherings
prior to HCFCC[’s] . . . existence and much after HCFCC
. . . ceased to exist, " and for HCFCC’s
"gathering on the property and not [Plaintiffs]
gathering on the property." (Doc. 100 at 4).
Plaintiff’s Federal Constitutional Claims
forth supra, Plaintiffs have alleged five
constitutional claims against Defendant pursuant to §
1983. To begin, the Court observes that the majority of
factual allegations that comprise the individual claims are
legal conclusions,  and do not inform the Court as to what
behavior by Defendant allegedly constitutes a violation of
Plaintiffs’ constitutional rights. The Court must look
to the rest of the pleading.
reviewed the entirety of the FAC, the Court finds that the
pleaded facts establish that Plaintiffs’ challenge
Defendant’s promulgation and application of certain
portions of the Phoenix Building Construction Code (the
"Code"), as violating Plaintiffs’
constitutional rights. The FAC asserts that "Defendant has
applied and currently applies zoning, building, and
constructions codes[, ] including section 303 of the 2006
Phoenix Building Code . . . [so] as to treat private religious
gatherings at a residence on less than equal terms as private
non-religious gatherings at a residence." (Doc. 101 at
3). The FAC further alleges that Defendant’s
actions "treat private worship at a residence
differently than they treat similarly situated non-religious
gathering[s] at a residence, " (id. at 25), and
that "Defendant’s actions discriminate between
religious gatherings and non-religious gatherings at a
residence." (Id. at 23).
Section VI of the FAC begins by setting forth two sections of
the Code, §§ 303.1 and 303.4, (Doc. 101 at 15), and
the FAC also asserts that Defendant "has applied and
currently applies zoning, building and construction codes
including . . . Section 110 [of the Phoenix Building
Construction Code]" against them in a discriminatory
manner. (Id. at 3). Defendant uses the Code to
"treat private religious gatherings at a residence on
less than equal terms as private non-religious gatherings at
a residence, " (id.), and that through
application of the Code, Defendant has taken "a very
prejudicial and discriminatory stance against the
plaintiffs" causing "their private religious
studies at their home among family and friends" to be
classified as a place of worship. (Id. at 19).
2010, Plaintiff Michael Salman was "convicted of
sixty-seven building and zoning code violations" by the
Phoenix Municipal Court. Salman v. City of Phoenix,
CV 11-00646-PHX-FJM, 2011 U.S. Dist. LEXIS 122387, at *3 (D.
Ariz. Oct. 20, 2011); Salman, 2016 U.S. Dist. LEXIS
9462, at *16 (citation omitted). Michael Salman’s
conviction was affirmed by the Maricopa County Superior
Court, and to date Plaintiffs have offered no evidence to
suggest that his conviction for violating provisions of the
Code has been "expunged or otherwise reversed." Nor
have Plaintiffs made any attempt to allege that Michael
Salman was convicted for violating provisions of the Code
that do not serve as the basis for Plaintiffs’ §
principal distinction between the Third Amended Complaint and
the FAC appears to be the inclusion of factual allegations
pertaining to HCFCC. (Doc. 101 at 12). The FAC pleads that in
May of 2009, HCFCC "began holding worship" at
Plaintiffs’ residence, in June of 2009 "the City
of Phoenix charged HCFCC[, ] Inc. civilly for violating
building construction codes, " and that HCFCC was
dissolved by the Arizona Corporation Commission in July of
2009. (Id.). Thus, Plaintiffs argue in their motion
that "the conviction in the City of Phoenix Court was
not for the gatherings held by Michael [and] Suzanne Salman
but [for] those held by [HCFCC] in May and June of 2009 at
the Salmans’ home." (Doc. 100 at 3). The Court is
makes no mention of Michael Salman’s conviction, but as
the Court has stated previously, the Court may consider his
convictions because it is a "matter of public record
that [is] not subject to reasonable debate."
Salman, 2016 U.S. Dist. LEXIS 9462, at *16 (internal
quotation marks omitted) (quoting Lee v. City of Los
Angeles, 250 F.3d 668, 689 (9th Cir. 1986)). The
presence of HCFCC, a corporate entity, or Plaintiffs’
actions from 2007-2010, do nothing to address the issue that
Michael Salman was convicted in 2010 for violating provisions
of the Code. As far the FAC makes clear, Plaintiffs still
appear to allege that the same provisions of the Code that
Michael Salman was convicted of violating are the provisions
that serve as the basis of their constitutional claims. If
Plaintiffs were to prevail on their constitutional claims, it
would still require that the Court "make a finding that
would necessarily imply the invalidity of [his]
conviction." Heck v. Humphrey, 512 U.S. 477,
486-87 (1994). Because Plaintiffs have failed to show that
Michael Salman’s conviction has been expunged or
reversed, and because Plaintiffs have failed to allege that a
difference exists between the Code provisions that led to
Michael Salman’s conviction and their civil
constitutional claims, the Court finds that Michael
Salman’s § 1983 claims against Defendant
"have not yet accrued under Heck."
Salman, 2011 U.S. Dist. LEXIS 122387, at *11.
Court’s analysis continues, however. In the previous
Order denying Plaintiffs’ motion for leave to file, the
Court noted that the Third Amended Complaint did not plead
that Mrs. Salman "should be able to individually
challenge the Phoenix Code under § 1983 or that she has
any threat of enforcement pending against her
individually." Salman, 2016 U.S. Dist. LEXIS
9462, at *18 n.7. Therefore, when the Court found that
Michael Salman’s constitutional claims had not yet
accrued under Heck, it was not necessary for the
Court to individually analyze any claims by Suzanne Salman.
The FAC does not explicitly plead individual § 1983
claims against Defendant by Suzanne Salman. But the pleading
does refer to "Plaintiffs" in the plural, and
asserts that "they would be facing criminal and civil
violations personally" if Plaintiffs continued to
disregard the Code and hold religious services without
obtaining a change in occupancy. (Doc. 101 at 12).
Plaintiffs’ motion also notes that "Suzanne Salman
is just as much a victim of the actions of [Defendant] as
Michael Salman was and was not a party to" his
convictions. The Court finds that while Plaintiffs’
motion is borderline an improper attempt to ...