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Salman v. City of Phoenix

United States District Court, D. Arizona

June 6, 2016

Michael Salman, et al., Plaintiffs,
v.
City of Phoenix, et al., Defendants.

          ORDER

          James A. Teillrore Senior United States District Judge

         Pending 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.

         I. Background

         The 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.

         II. Legal Standard

         As 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. 2015)).

         III. Discussion

         Plaintiffs’ proposed FAC includes substantive revisions to the Third Amended Complaint, and is comprised of six claims[1] alleged against Defendant[2] City of Phoenix. Plaintiffs have alleged five violations of their constitutional rights pursuant to 42, U.S.C. § 1983, [3] as 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")[4] 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).

         A. Plaintiff’s Federal Constitutional Claims

         As set 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, [5] 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.

         Having 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.[6] The FAC asserts that "Defendant has applied and currently applies zoning, building, and constructions codes[, ] including section 303 of the 2006 Phoenix Building Code[7] . . . [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[8] "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).

         Additionally, 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.[9] (Id. at 19).

         In 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’ § 1983 claims.

         The 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 not persuaded.

         The FAC 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.

         The 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 ...


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