Sherman Lynell Thomas v. Boyd W. Howze, Jr.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 6, 2009
No. 08-16782
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00357-CV-4-RH-WCS
SHERMAN LYNELL THOMAS,
Plaintiff-Appellant,
versus
BOYD W. HOWZE, JR., et al.,
Defendants,
CITY OF APALACHICOLA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 6, 2009)
Before BIRCH, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Sherman Lynell Thomas, proceeding pro se, appeals the district court’s order
granting summary judgment in favor of the City of Apalachicola (the “City”) in his
civil rights action under 42 U.S.C. § 1983. On appeal, Thomas argues that the district
court: (1) erred in granting summary judgment on his claim that the City violated his
First Amendment rights by refusing to allow him to maintain a structure on City
property; (2) erred in granting summary judgment on his claim that the City violated
his First Amendment rights by refusing to place him on a city commission meeting
agenda; (3) erred in granting summary judgment on his claim that the City violated
his Fourteenth Amendment right to equal protection by towing his vehicle; and (4)
abused its discretion by imposing sanctions for a discovery violation. After careful
review, we affirm.
We review a district court’s grant of summary judgment de novo, considering
all evidence and reasonable inferences drawn therefrom in the light most favorable
to the non-movant. Ellis v. England, 432 F.3d 1321, 1325 (11th Cir. 2005). Under
Fed.R.Civ.P. 56(c), summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). Because standing is a necessary component of this Court’s jurisdiction
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to hear cases and controversies under Article III, we must address the matter first
“without deference to the district court’s legal conclusions.” ACLU of Fla., Inc. v.
Miami-Dade County Sch. Bd., 557 F.3d 1177, 1190 (11th Cir. 2009), petition for cert.
filed, (U.S. June 18, 2009) (No. 08-1564). We review the imposition of a discovery
sanction under Fed.R.Civ.P. 37 “for an abuse of discretion and a determination that
the findings of the trial court are fully supported by the record.” BankAtlantic v.
Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1048 (11th Cir. 1994).
First, we find no merit in Thomas’s argument that the district court erred by
granting summary judgment on his claim that the City violated his First Amendment
rights by refusing to allow him to maintain a structure on City property.1 “The
1
As an initial matter, however, we reject the City’s argument that Thomas did not have
standing to bring this claim. Standing requires the plaintiff to show: (1) that he suffered, or faced
an imminent, but not merely hypothetical, prospect of suffering, “an invasion of a legally
protected interest resulting in a concrete and particularized injury,” (2) that the injury was
“caused by the defendant’s complained-of actions,” and (3) that the “injury or threat of injury
must likely be redressible by a favorable court decision.” ACLU, 557 F.3d at 1190 (quotations
omitted). “[E]ach element must be supported in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the
successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
On the record here, Thomas had standing to challenge the City’s refusal to allow him to maintain
his structure because: (1) Thomas suffered injury when the City requested that he remove the
structure under Ordinance 61-4, see Granite State Outdoor Adver., Inc. v. City of Clearwater,
Fla., 351 F.3d 1112, 1117 (11th Cir. 2003) (holding that a plaintiff suffered injury sufficient to
confer standing to challenge the constitutionality of an ordinance after the City denied his
application for a billboard permit under that ordinance); (2) this injury was causally related to the
alleged constitutional violations challenged; and (3) it is likely that the injury would be redressed
by a favorable decision because the City does not argue that Thomas’s structure failed to meet
the requirements of other unchallenged statute or ordinances. See KH Outdoor, L.L.C. v. Clay
County, Fla., 482 F.3d 1299, 1303-04 (11th Cir. 2007) (holding that a plaintiff failed to satisfy
the redressibility requirement where his application for a billboard permit did not meet the
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validity of restrictions on protected First Amendment expression depends upon the
type of speech and the type of forum being regulated.” Gold Coast Publ’ns, Inc. v.
Corrigan, 42 F.3d 1336, 1344 (11th Cir. 1994). “Traditional public fora are places
which by long tradition or by government fiat have been devoted to assembly and
debate.” Id. (quotations omitted). “Streets and parks have immemorially been held
in trust for the use of the public and, time out of mind, have been used for purposes
of assembly, communicating thoughts between citizens, and discussing public
questions.” Id. (quotations omitted). Where a limitation on the time, place, or
manner of expression in traditional public fora is content-neutral -- meaning that no
distinction is made based on content -- it must be “narrowly tailored to serve a
significant government interest” and provide “ample alternative channels of
communication.” Id. (quotations omitted).
Here, Ordinance No. 61-4 provides that “[n]o person shall erect, construct,
place or maintain any obstruction or encroachments whatever on the streets, alleys or
sidewalks of the City except where a permit has been issued by the City permitting
the same.” Since Ordinance 61-4 expressly regulates all structures “on the streets,
requirements of other unchallenged statutes and regulations). Indeed, while Thomas agreed to
remove the structure from the right of way, he did so only after the City denied his permit
application. Further, even if Thomas does not intend to rebuild the structure there, he is not
consequentially prohibited from seeking redress in damages for a prior injury. See City of Los
Angeles v. Lyons, 461 U.S. 95, 105 (1983) (noting that a plaintiff’s failure to allege a sufficient
likelihood of future injury does not affect his standing to claim damages for a prior injury).
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alleys or sidewalks of the City” -- areas that are typically considered public fora
within the meaning of the First Amendment, see id. -- it is a content-neutral
regulation that must be narrowly tailored to serve a significant government interest
and provide ample alternative channels of communication. See id.
The record shows that Ordinance 61-4 serves the City’s significant interest in
the public’s health, safety and general welfare by preventing the encroachment of
structures on City property, and by protecting the public from any hazardous
structures or materials placed on City property. See Coalition for the Abolition of
Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1318 (11th Cir. 2000) (“To
demonstrate the significance of its interest, the City is not required to present detailed
evidence . . . , [but] is entitled to advance its interests by arguments based on appeals
to common sense and logic.”) (quotations omitted); see also id. at 1319 (“[M]unicipal
authorities, as trustees for the public, have the duty to keep their communities’ streets
open and available for the movement of people and property, the primary purpose to
which the streets are dedicated.”) (quotations omitted). Further, the Ordinance is
narrowly tailored by providing a permitting process to vet whether structures built on
City-owned property are in the interest of the public’s health, safety and general
welfare. See Jones v. Heyman, 888 F.2d 1328, 1333 (11th Cir. 1989) (“the means
adopted by the government need not be the least-intrusive or least-restrictive . . . so
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long as the . . . regulation promotes a substantial government interest that would be
achieved less effectively absent the regulation”). Finally, the Ordinance allows
structures to be built with proper permitting, and does not target other forms of
speech, which indicates that adequate alternative avenues of communication remain
open. See Ward v. Rock Against Racism, 491 U.S. 781, 802 (1989) (“That the city’s
limitations on volume may reduce to some degree the potential audience for
respondent’s speech is of no consequence, for there has been no showing that the
remaining avenues of communication are inadequate.”). Because Thomas has failed
to dispute that Ordinance 61-4 is narrowly tailored to serve a significant government
interest and provides ample alternative channels of communication, the district court
did not err in granting summary judgment on this First Amendment claim.2
We are likewise unpersuaded by Thomas’s argument that the district court
erred by granting summary judgment on his claim that the City violated his First
Amendment rights by refusing to place him on the agenda for a city commission
meeting. Speech at city commission meetings may be restricted to specified subject
matter. Rowe v. City of Cocoa, Fla., 358 F.3d 800, 802 (11th Cir. 2004). In other
2
Notably, Thomas has never argued that Ordinance 61-4 or the municipal code granted
the City “unbridled discretion” in the denial of his permit application, and the record is not
developed on this issue. While we read briefs filed by pro se litigants liberally, Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir.), cert. denied, 129 S. Ct. 74 (2008), we will not act as de
facto counsel for the appellant or otherwise rewrite a deficient pleading. GJR Invs., Inc. v.
County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998).
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words, city commission meetings are “limited public fora,” and “the government may
restrict access . . . by content-neutral conditions for the time, place, and manner of
access, all of which must be narrowly tailored to serve a significant government
interest.” Id. at 802-03 (quotations omitted). “There is a significant governmental
interest in conducting orderly, efficient meetings of public bodies,” and “[o]ne
recognized way to conduct orderly, efficient meetings . . . is for public bodies, such
as a city council, to confine their meetings to specified subject matter.” Id. at 803.
On the record here, it was undisputed that Thomas refused to submit a specific
topic to the city administrator for inclusion on the agenda prior to the meeting.
Further, he was permitted to speak during the public comment portion of the meeting.
Because city commission meetings are limited public fora, the City had authority to
make content-neutral conditions for the time, place, and manner of access, so long as
they were narrowly tailored to serve a significant government interest. See Rowe,
358 F.3d at 803. Prior to the meeting, the City instituted a new policy that required
persons to submit a specific topic before being included on the agenda for city
commission meetings. Before instituting this policy, it had difficulties conducting
efficient meetings because persons would provide vague topics and speak for a long
time, causing the meetings to last an unreasonable amount of time. Because this
restriction was content-neutral, merely regulated the time, place, and manner of
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speech, and was narrowly tailored to serve a significant government interest, the
district court did not err in granting summary judgment on this claim. See id.3
We also do not agree with Thomas’s claim that the district court erred in
granting summary judgment on his claim that the City violated his Fourteenth
Amendment right to equal protection. The Equal Protection Clause of the Fourteenth
Amendment requires state governments to treat similarly situated individuals alike.
Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1313 (11th Cir. 2006). Thus,
“unequal application of a facially neutral statute may violate the Equal Protection
Clause.” Strickland v. Alderman, 74 F.3d 260, 264 (11th Cir. 1996). In order to
prevail based upon the application of a facially neutral statute, a plaintiff must show
that: (1) “[he] was treated differently than similarly situated persons”; and (2) “the
defendant unequally applied the facially neutral statute for the purpose of
discriminating against [him].” Id.
Thomas argues that the City treated several similarly situated persons
differently by failing to leave notices on vehicles near residences owned by the chief
of police, Anderson Williams, and Fred Reeder, a white neighbor. However, Thomas
3
To the extent that Thomas’s appellate brief raises a First Amendment retaliation claim
against the City based on its refusal to include him on the agenda for the meeting and its towing
of his vehicle, he did not raise these claims brief before the district court. Accordingly, he has
waived any argument in this regard on appeal. See Access Now, Inc. v. S.W. Airlines, Co., 385
F.3d 1324, 1331 (11th Cir. 2004) (“[A]n issue not raised in the district court and raised for the
first time in an appeal will not be considered by this [C]ourt.” (quotations omitted)).
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did not allege that the vehicle near Williams’s residence was located in a right of way,
and thus Williams was not similarly situated. See id. While Thomas asserted that the
vehicle near Reeder’s residence was located in the City’s right of way, there is no
evidence that the City failed to enforce the towing policy on Reeder’s vehicle “for the
purposes of discriminating against” Thomas. See id. Instead, the record shows that
the City tagged numerous vehicles pursuant to the policy during the summer of 2007
and did not specifically target Thomas’s vehicle. Accordingly, the district court did
not err in granting summary judgment in favor of the City on this claim.4
Lastly, we find no merit in Thomas’s claim that the district court abused its
discretion by finding that he failed to comply with his discovery obligations and
ordering payment of costs and attorney’s fees of $900 to the City. If a party fails to
appear at his own deposition or serve his answers, objections, or written response to
interrogatories, a district court “must require the party failing to act, the attorney
advising that party, or both to pay the reasonable expenses, including attorney’s fees,
caused by the failure, unless the failure was substantially justified or other
circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(d).
4
Finally, Thomas’s initial appellate brief does not argue that the district court erred in
granting summary judgment in favor of the City on his equal protection claim regarding the
City’s failure to post a “Slow Children at Play” sign near his residence. Thus, he has abandoned
this claim on appeal. See Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002).
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As the record shows, Thomas does not dispute that he refused to attend his
deposition without good cause. Therefore, the district court did not abuse its
discretion by ordering payment of costs and attorney’s fees to the City. See id.
AFFIRMED.5
5
In addition, Thomas’s motion to dismiss and remand by default with prejudice is
DENIED.
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