William Straser v. City of Athens ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0063p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WILLIAM STRASER, ┐
Plaintiff-Appellant, │
│
> No. 19-5689
v. │
│
│
CITY OF ATHENS, TENNESSEE; CHRIS TREW; GENE │
MCCONKEY, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 3:18-cv-00187—Thomas W. Phillips, District Judge.
Decided and Filed: February 28, 2020
Before: COLE, Chief Judge; BOGGS and SUTTON, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Van R. Irion, LAW OFFICE OF VAN R. IRION, Knoxville, Tennessee, for
Appellant. John T. Batson, Jr., Dan R. Pilkington, WATSON, ROACH, BATSON
& LAUDERBACK, P.L.C., Knoxville, Tennessee, for Appellees.
_________________
OPINION
_________________
SUTTON, Circuit Judge. William Straser alleges that the City of Athens, Tennessee
violated the Fourteenth Amendment when it enforced a zoning ordinance against him based on
his Christian beliefs. That sounds ominous. But the evidence to support the claim arose only
when Straser complained about the fine, and a City employee explained that the City enforced it
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against everyone, including a Muslim neighbor who recently violated the ordinance as well.
A government that enforces its laws equally against those of different faiths honors—it hardly
violates—the neutrality imperative of the Fourteenth Amendment. We affirm the district court’s
rejection as a matter of law of this claim and two others.
Straser built a carport in 2009. It sits about 17 feet from the road. A city zoning
ordinance requires carports to be 30 feet from the road. Between 2011 and 2017, the city
notified Straser four times that his carport violated the rule.
In 2016, the city cited Straser’s neighbor for violating the setback rule with his own
carport. The neighbor accused the city of targeting him for enforcement based on his race and
Muslim religion.
In 2017, the city cited Straser for his too-close-to-the-road carport. Straser hired an
attorney, who called City Attorney Chris Trew to resolve the citation. Trew told them that the
City would not dismiss the citation because the carport violated the ordinance and because it
refused to give Straser preferential treatment. During the call, Trew mentioned the City had “had
trouble with a Muslim” who complained about a similar violation. R. 24-4 at 24. True to its
word, the City charged Straser, and the municipal court upheld the fine.
Irked by this evenhandedness, Straser sued the City, Trew, and Building Inspector Gene
McConkey, claiming they violated his constitutional rights by fining him because he is a
Christian and because they didn’t want to favor him over his Muslim neighbor.
Straser sought permission to amend his complaint to add claims that the City violated the
Americans with Disabilities Act when it charged him a fee for disability-based applications for
zoning-ordinance variances. The carport, Straser explained, helped him manage his diabetic
neuropathy by making it easier to use his car during inclement weather. The district court denied
the motion because the statute of limitations barred the claim.
The three defendants moved for summary judgment. Before the court ruled on the
motion, Straser sought permission to amend his complaint again. This time, he asked to add a
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request for declaratory relief. The district court granted summary judgment to all three
defendants and rejected the amendment as futile.
Selective enforcement. Straser claims that Trew violated his federal equal-protection
rights by fining him because of his religion. Selective-enforcement claims require the claimant
to show that (1) he belonged to a particular race, religion, or other identifiable group; (2) the
official did not enforce the rule against similarly situated people outside the group; (3) the
prosecution stemmed from a discriminatory purpose; and (4) the prosecution had a disparate
effect. Gardenhire v. Schubert, 205 F.3d 303, 319 (6th Cir. 2000).
Straser satisfies the first element, group membership. He alleges that Trew enforced the
30-foot rule against him because he is a Christian.
He does not satisfy the next element, differential enforcement. Straser does not identify
any cases in which the City refused to enforce the 30-foot rule against non-Christians. All he
points to is Trew’s enforcement of the ordinance against someone outside Straser’s identified
group—his Muslim neighbor. That’s not discrimination. It’s equal treatment, indeed the
epitome of equal treatment.
Straser counters that many local structures violate the 30-foot rule. But that list of
structures suffers from at least two defects. Straser fails to show that non-Christians own the
structures. And he does not claim that Trew failed to enforce the 30-foot rule against the
structures. For all we know, Trew enforced the ordinance against every structure on the list.
Beyond that, the list could be full of examples of Trew enforcing the ordinance against people
who do not share Straser’s faith.
On top of that problem rest two others. Straser has failed to show discriminatory purpose
and effect. Straser’s own account of his conversation with Trew shows that Trew was committed
to evenhanded enforcement. Trew explained that he would not excuse the violation because
Straser’s carport violated the ordinance and because Trew could not “treat him specially.” R. 24-
5 at 9. Straser has provided no reason—let alone the necessary clear evidence required in this
setting, Gardenhire, 205 F.3d at 319—to think Trew knew of Straser’s religious beliefs. That
makes it hard to view Trew’s comments as demonstrating a discriminatory purpose or effect.
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Straser insists otherwise, invoking Trew’s comment that the city “had trouble with a
Muslim.” R. 24-4 at 24. But that comment shows only that Trew refused to treat Straser
differently from someone outside his identified group. Equal treatment does not a selective
enforcement claim make.
Straser thinks our analysis should proceed differently because he asserts a “class-of-one”
selective enforcement claim. But we have analyzed similar claims under the standard framework
for selective-enforcement claims. E.g., Bowman v. City of Olmsted Falls, 756 F. App’x 526,
529–31 (6th Cir. 2018). Straser’s claim would fail under the class-of-one framework anyway.
He cannot show that the City treated him differently from similarly situated people. Ass’n of
Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 549 (6th Cir. 2007).
Straser presses us to use a different approach to these claims, one that prioritizes direct
evidence of discriminatory purpose—the phone call with Trew being the smoking gun—over any
discriminatory impact on the claimant. We could not indulge him even if we thought Trew
should have described the neighbor’s accusation differently. Our circuit has already settled on a
standard for selective enforcement claims, and the Supreme Court has not displaced it. See
Gardenhire, 205 F.3d at 319; Willowbrook v. Olech, 528 U.S. 562, 563–65 (2000) (per curiam).
The claim fails as a matter of law.
Declaratory judgment amendment. Straser moved to amend his complaint to add a
request for a declaration that the city’s prosecution violated his equal-protection rights. The
district court rejected the motion and did not commit reversible error in doing so. The key
problem, among many lesser problems, is that the original complaint already included a request
for declaratory judgment. No prejudice occurred.
Disability-based amendment. Straser separately sought permission to add a claim that the
city violated the Americans with Disabilities Act by charging a non-refundable $135 fee before it
would consider requests for zoning variances. The district court refused to permit that
amendment on futility grounds because the statute of limitations barred the claim.
Everyone agrees that claims under the Act must be brought within one year of accrual,
thanks to the Act’s borrowing of Tennessee’s statute of limitations. Tenn. Code Ann.
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§ 28-3-104(a)(1)(B); Hughes v. Vanderbilt Univ., 215 F.3d 543, 547 (6th Cir. 2000). Competing
theories of the claim’s accrual date abound in the parties’ briefs. Perhaps the claim accrued
when Straser learned of the policy in 2011? Or with each of the warning letters the city sent
Straser between 2011 and 2017? Or when the city began prosecuting him in April 2017?
Only one theory matters, the one that could render Straser’s claim timely. The City, this
theory proposes, violates the Act anew every day it refuses to change the variance application
policy or drop its prosecution. Two “continuing violation” possibilities exist. Dixon v.
Anderson, 928 F.2d 212, 216–18 (6th Cir. 1991). One refers to a series of discriminatory
actions; the other refers to an ongoing discriminatory policy. Id. at 216–17.
As to the first possibility, Straser claims that the City engaged in a series of
discriminatory actions by daily refusing to drop the prosecution or waive the application fee. But
that is just another way of targeting the ongoing effects of the City’s allegedly discriminatory
actions. Nor does Dixon support Straser. In that case, the State allegedly discriminated anew
each time it cut the plaintiffs a paycheck that adhered to its challenged retirement contribution
policy. Id. at 214. Because the paychecks amounted to ongoing effects, not continuing
violations, the statute of limitations barred the suit. Id. at 217.
The second paradigm is an ongoing discriminatory policy or environment. Id. at 217–18.
Mere continuing existence of an allegedly discriminatory policy does not extend the statute of
limitations. Lewis v. City of Chicago, 560 U.S. 205, 212 (2010). If the policy results in an
allegedly discriminatory act within the limitations period, the plaintiff may challenge the policy.
Amtrak v. Morgan, 536 U.S. 101, 117–18 (2002). Without such an act, challenges to the policy
are time-barred if the policy was adopted outside the limitations period. Id.Straser points to a policy but cannot identify a discriminatory act within the limitations
period. The City’s prosecution of Straser’s ordinance violation comes closest to counting. But
that started outside the limitations period too, almost two years before Straser added the claim to
his complaint. If the Dixon employer’s paycheck-by-paycheck refusal to change its policy did
not count as a separate discriminatory act, neither does the city’s day-by-day refusal to drop the
prosecution or waive the application fee. Dixon, 928 F.2d at 217. “[M]ere existence of an
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alleged policy of violating equal protection rights,” to repeat, “will not toll the running of the
statute of limitations.” Id.We affirm.