Dearmore v. City of Garland

• Citation: 400 F.Supp.2d 894
• Decision Date: 03 November 2005
• Docket Number: No. Civ.A. 3:05-CV-1231L.,Civ.A. 3:05-CV-1231L.
• Parties: Roy DEARMORE, individually and as Representative of all owners of Single Family residential property in Garland Texas, Marie Combs, individually and as Representative of all tenants of Single Family residential property in Garland, Texas, and A.C. Blair, individually and as Representative of all property managers in Garland, Texas, Plaintiffs, v. CITY OF GARLAND, Defendant.
• Court: U.S. District Court — Northern District of Texas

400 F.Supp.2d 894

Roy DEARMORE, individually and as Representative of all owners of Single Family residential property in Garland Texas, Marie Combs, individually and as Representative of all tenants of Single Family residential property in Garland, Texas, and A.C. Blair, individually and as Representative of all property managers in Garland, Texas, Plaintiffs, v. CITY OF GARLAND, Defendant.

No. Civ.A. 3:05-CV-1231L.

United States District Court, N.D. Texas, Dallas Division.

November 3, 2005.

COPYRIGHT MATERIAL OMITTED

Robert A. Miller, Prager & Miller, Dallas, TX, for Plaintiffs.

William Frank Glazer, Ronald Bradford Neighbor, Garland City Attorney's Office, Garland, TX, for Defendant.

MEMORANDUM OPINION AND ORDER AND PRELIMINARY INJUNCTION

LINDSAY, District Judge.

Before the court is Plaintiff Roy Dearmore's Amended Motion for Temporary Restraining Order and Motion to Reconsider Court's Denial of Temporary Restraining Order, filed July 1, 2005;¹ and Defendant City of Garland's Motion to Dismiss for Want of Subject Matter Jurisdiction (12(b)(1)) and for Failure to State a Claim (12(b)(6)), filed July 6, 2005. After careful consideration of the request for injunction, the testimony given at the preliminary injunction hearing, argument of counsel, the motions and briefs, response, reply and applicable law, the court grants in part Plaintiffs request for a preliminary injunction; denies as moot Plaintiff's Amended Motion for Temporary Restraining Order and Motion to Reconsider Court's Denial of Temporary Restraining Order, denies as moot City of Garland's Motion to Dismiss for Want of Subject Matter Jurisdiction (12(b)(1)); and grants in part and denies in part City of Garland's Motion to Dismiss for Failure to State a Claim (12(b)(6)).

I. Factual and Procedural Background

Plaintiff Roy Dearmore ("Dearmore" or "Plaintiff') filed this action pursuant to 42 U.S.C. § 1983 against Defendant City of Garland (the "City" or "Defendant") on June 16, 2005.² Dearmore requests the court to enjoin the City from enforcing City Ordinance No. 5895 (the "Ordinance") which amends the City's Minimum Housing Code. Dearmore contends that he will suffer irreparable injury if the City is not enjoined. He maintains that the Ordinance violates his Fourth Amendment right by: (1) authorizing warrantless searches of private homes; (2) failing to provide a mechanism to notify the tenant, property owner or property manager of his or her right to refuse to allow the search; and (3) requiring the applicant to disclose private information that violates the right to privacy. Dearmore further contends that the City has violated the Fourteenth Amendment.³

Dearmore owns four properties in the City that he rents to various tenants. The City adopted the Ordinance on April 19, 2005. The Ordinance provides two separate and distinct criteria for the permitting of rental property in the City. Section 32.07 provides the criteria for obtaining a Multifamily License — necessary to lease "three or more residential dwelling units to another person or persons which are part of a multifamily dwelling." Garland, Tex., Code of Ordinances ch. 32, § 32.07 (2005). Section 32.09 provides the criteria for obtaining a Single Family Permit — necessary to rent or lease "a single-family residential dwelling." Id. § 32.09 (2005).

To obtain a Single Family Permit, the Ordinance requires a person or entity that owns one or more rent houses to: (1) submit an application to operate each rental property; (2) pay the appropriate fee ($65); and (3) post and display the permit in a visible location inside the rental property. Id. § 32.09(B)(D). The application and permit fee are to be paid no later than 60 days from the effective date of the Ordinance. Id. § 32.09(C). The application is to include the name, address, telephone number and driver's license number of the owner, tenant and property manager. Id. § 32.09(B)(1)(a)(c). As a condition of the permit, the City will inspect the property a least once a year. Failure of an owner, who is not a resident at the property, to allow an inspection is an offense. Id. § 32.09(F)(1)(3). When consent to inspect has been refused or cannot be obtained, the City is authorized to obtain a search warrant to conduct an inspection. Id. § 32.09(F)(4). This section also provides that:

[N]o search warrant shall be obtained without probable cause to believe that a fire or health hazard or violation or unsafe building condition is present on the premises sought to be inspected. A search warrant is not authorized based solely upon the failure of an owner to obtain a permit under this section.

Id.

Dearmore received a letter from the Garland Health Department Code Compliance Division, dated June 10, 2005, advising him of the adoption of the Ordinance and its permit and inspection requirements. The letter stated that owners of rent houses are required to "allow the Health Department access to the exterior and interior of the home for the purposes of determining compliance with all applicable sections of the Code." Affidavit of Roy Dearmore, Exhibit A. The letter also stated that "[a]s a rule, owners will be given a three to seven day notice of the initial inspection to facilitate scheduling the inspection." Id. The letter further stated that "[t]he compliance deadline for submitting a complete application and paying the permit fee is July 11, 2005. Failure to comply with the permit application deadline will result in the issuance of Class C misdemeanor citations carrying fines [] from $100 to $2000 per day."⁴ Id.

Dearmore filed his Original Complaint and Request for Temporary Preliminary and Permanent Injunctive Relief on June 16, 2005. He also filed a Motion for Temporary Restraining Order. The court denied without prejudice Dearmore's Motion for Temporary Restraining Order. The court determined that Dearmore failed to meet all the prerequisites for a temporary restraining order. On July 1, 2005, Dearmore filed his Amended Motion for Temporary Restraining Order and Motion to Reconsider Court's Denial of Temporary Restraining Order or in the Alternative Request for Expedited Preliminary Injunction Hearing.

The City filed its motion to dismiss on July 6, 2005. The City contends that Dearmore has failed to allege sufficient facts to establish the court's subject matter jurisdiction over his Fifth Amendment claims;⁵ failed to allege sufficient facts to state a claim upon which relief may be granted as to his substantive due process claim under the Fourteenth Amendment; and failed to establish that he has standing to assert his Fourth Amendment claim. A preliminary injunction hearing was held on July 7, 2005. The court now considers the request for injunctive relief and the motion to dismiss.

II. Applicable Standards of Law

A. Preliminary Injunction

There are four prerequisites for the extraordinary relief of a temporary restraining order or preliminary injunction. To prevail, Plaintiff must demonstrate: (i) a substantial likelihood of success on the merits; (ii) a substantial threat of immediate and irreparable harm, for which he has no adequate remedy at law; (iii) that greater injury will result from denying the temporary restraining order than from its being granted; and (iv) that a temporary restraining order will not disserve the public interest. Clark v. Prichard, 812 F.2d 991, 993 (5^th Cir.1987); Canal Auth. of the State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974) (en banc). The party seeking such relief must satisfy a cumulative burden of proving each of the four elements enumerated before a temporary restraining order or preliminary injunction can be granted. Mississippi Power and Light Co. v. United Gas Pipe Line, 760 F.2d 618, 621 (5^th Cir.1985); Clark, 812 F.2d at 993. Otherwise stated, if a party fails to meet any of the four requirements, the court cannot grant the temporary restraining order or preliminary injunction.

B. Rule 12(b)(6) Failure to State a Claim

A motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) "is viewed with disfavor and is rarely granted." Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 247 (5^th Cir.1997). A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5^th Cir.1995). Stated another way, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema, 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v. Robertson, 197 F.3d 772, 774 (5^th Cir.1999), cert. denied, 530 U.S. 1229, 120 S.Ct. 2659, 147 L.Ed.2d 274 (2000). The pleadings include the complaint and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5^th Cir.2000). Likewise, "`[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiffs complaint and are central to [the plaintiffs] claims.'" Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993)). The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the...