Duarte v. City of Lewisville

• Citation: 759 F.3d 514
• Decision Date: 22 July 2014
• Docket Number: No. 13–40806.,13–40806.
• Parties: Aurelio DUARTE; Wynjean DUARTE; S. D., A Minor, By and through Wynjean Duarte, acting as her Next Friend; Brandi Duarte, Plaintiffs–Appellants v. CITY OF LEWISVILLE, TEXAS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

759 F.3d 514

Aurelio DUARTE; Wynjean DUARTE; S. D., A Minor, By and through Wynjean Duarte, acting as her Next Friend; Brandi Duarte, Plaintiffs–Appellants

v.CITY OF LEWISVILLE, TEXAS, Defendant–Appellee.

No. 13–40806.

United States Court of Appeals,Fifth Circuit.

July 22, 2014.

Richard Scott Gladden, Law Office of Richard Gladden, Denton, TX, for Plaintiffs–Appellants.

William Andrew Messer, Jennifer Avalon Decurtis, Messer, Rockefeller & Fort, P.L.L.C., Frisco, TX, for Defendant–Appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before SMITH, WIENER, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Plaintiffs–Appellants Aurelio Duarte (“Duarte”) together with his wife and two children (collectively “the Duartes”) sued Defendant–Appellee the City of Lewisville, Texas (“Lewisville”) for damages and injunctive relief under 42 U.S.C. § 1983. Duarte and his family challenge the constitutionality of a Lewisville ordinance that prohibits registered child sex offenders from residing within 1,500 feet of “where children commonly gather.” Duarte is a registered child sex offender, and he asserts that he and his family have tried to find a house to rent or buy in Lewisville but cannot because of the challenged ordinance. The district court dismissed the Duartes' constitutional claims for lack of standing and, alternatively, as moot. We reverse and remand.

I. BACKGROUND

Duarte challenges the constitutionality of a Lewisville ordinance. The ordinance provides:

It is unlawful for a person to establish a permanent or temporary residence within 1,500 feet of any premises where children commonly gather if the person is required to register on the Texas Department of Public Safety's Sex Offender Database (the “Database”) because of a conviction(s) involving a minor.

The ordinance defines “premises where children commonly gather” to include “all improved and unimproved areas on the lot where a public park, public playground, private or public school, public or semi-public swimming pool, public or non-profit recreational facility, day care center or video arcade facility is located.” The ordinance enforces this restriction with the following penalties:

A person who violates any of the provisions of this ordinance shall be guilty of a misdemeanor and upon conviction, shall be fined a sum not to exceed $500.00 for each offense, and each and every violation or day such violation shall continue or exist, shall be deemed a separate offense.

The ordinance also “grandfathers” certain residences. The ordinance provides an affirmative defense if the person “established the permanent or temporary residence ... prior to the date of the adoption of this ordinance,” or if “[t]he premises where children commonly gather ... was opened after the person established the permanent or temporary residence.”

A. Aurelio Duarte's Attempts to Find Housing in Lewisville

Duarte was convicted of online solicitation of a minor in violation of Texas Penal Code § 15.031 and sentenced to eight years in prison. On his release from prison, Duarte returned to Lewisville, Texas, where he had previously resided with his wife and children prior to his imprisonment, and he registered as a child sex offender. Duarte's wife worked near Lewisville, and the Duartes' daughters were enrolled in public school in Lewisville. With his wife's assistance, Duarte began looking for a house in Lewisville.

The Duartes learned that, in 2008, Lewisville enacted an ordinance that prohibits registered child sex offenders from residing within 1,500 feet of “where children commonly gather.” In light of the ordinance, the Duartes moved into a 275–square–foot one-bedroom motel room located on the service road of Interstate 35W in Lewisville. At the time, this residence did not violate the ordinance. But the motel is now within a proscribed protected zone because of a newly constructed public and semi-public pool nearby. Because the Duartes established their residence there before the opening of the pool, they could continue to lawfully reside there as the residence was “grandfathered.”

The Duartes searched for another residence in Lewisville for approximately eighteen months to no avail. Beginning in February 2010 and continuing through August 2011, Duarte's wife, Wynjean Duarte, periodically contacted the Lewisville Sex Offender Registrar, Lisa Peck (“Peck”), to inquire whether residences the Duartes wanted to rent or purchase were within the prohibited zone. On at least nine occasions, Wynjean Duarte contacted Peck to determine whether particular residences were within the protected zone. On six occasions, Peck informed the Duartes that the residences were within zones prohibited by the ordinance. Peck approved three addresses; however, two of these were sold to someone else before the Duartes could purchase them. Regarding the third house, Wynjean Duarte testified that Peck instructed her in 2009 to wait until after Aurelio Duarte was released from incarceration to move, in case a “premises where children commonly gather,” like “a day care [,] ... go[es] up there all of a sudden.”

Lewisville points to evidence that the Duartes would have been unable to purchase a home due to their financial circumstances. Aurelio Duarte has been unemployed since 2009, they say. Together, the Duartes had saved approximately $200 in a bank account. The Duartes counter by pointing out that Wynjean Duarte's mother has offered to provide $5,000 for a down payment on a house. Moreover, although Aurelio Duarte is unemployed, Wynjean Duarte works two jobs. She works full-time, 40 hours a week as an accounting technician, and she works part-time, 20–to–25 hours a week, at Sears.

B. The District Court Dismisses the Duartes' Claims

The district court dismissed Duarte's wife and daughters' claims for lack of standing under Federal Rule of Civil Procedure 12. Later, Lewisville moved for summary judgment on Aurelio Duarte's claims. Lewisville asserted that there was no genuine dispute of material fact that Duarte lacked standing to challenge the ordinance. The magistrate judge recommended that summary judgment be granted and the case dismissed for lack of standing and, alternatively, as moot. The district court adopted the recommendation in full, granted summary judgment, and issued a final judgment in favor of Lewisville. The Duartes timely appealed.

C. Lewisville's Evidence that Duarte Moved Away

On appeal, Lewisville asks us to take judicial notice of the fact that on or about August 1, 2013, the Duartes moved away from Lewisville to the City of Lake Dallas. Lewisville argues this new fact moots the case. Lewisville submits two certified copies of public records from the Lewisville Police and from the Texas Department of Public Safety's TxDPS Sex Offender Registry showing that the Duartes moved to Lake Dallas. Because these public records are the proper subject of judicial notice on appeal, they will be considered below in evaluating Lewisville's mootness argument. See In re Manges, 29 F.3d 1034, 1042 (5th Cir.1994) (citing Fed.R.Evid. 201).

II. DISCUSSION

The Duartes appeal the district court's dismissal of their case for lack of standing and, alternatively, as moot. This Court has jurisdiction to review the district court's final judgment under 28 U.S.C. § 1291. We review the district court's decision to dismiss for lack of standing de novo. Joffroin v. Tufaro, 606 F.3d 235, 238 (5th Cir.2010). On review of a dismissal for lack of standing on summary judgment, we “consider all the facts contained in the summary judgment record and the inferences to be drawn therefrom in the light most favorable to the non-moving party.” United Indus., Inc. v. Eimco Process Equip. Co., 61 F.3d 445, 447 (5th Cir.1995).

A. Standing

The Duartes appeal the district court's decision dismissing their constitutional claims for lack of standing. Article III provides that the judicial power of the federal courts extends only to “Cases” and “Controversies,” U.S. Const. art. III, § 2, and standing is an “essential and unchanging part of [this] requirement,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To establish standing, a claimant must present (1) an actual or imminent injury that is concrete and particularized, (2) fairly traceable to the defendant's conduct, and (3) redressable by a judgment in the plaintiffs favor. Id. at 560–61, 112 S.Ct. 2130; accord Davis v. FEC, 554 U.S. 724, 733, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008). As the proponents of federal jurisdiction, the Duartes bear the burden to demonstrate standing to bring their constitutional claims. Nat'l Fed'n of the Blind of Tex., Inc. v. Abbott, 647 F.3d 202, 209 (5th Cir.2011).

1. Actual Injury

Lewisville primarily argues that the Duartes lack standing because they were never subjected to the ordinance's restrictions and therefore cannot show an actual injury. Lewisville contends: “It is ... undisputed that [Duarte] has not been cited or fined for violating the Ordinance,” and “Duarte legally lived with his family [in a Lewisville motel] at an address that was grandfathered, and therefore, the Ordinance had no application to him where he resided.” The Duartes counter that they tried to move from the grandfathered address to a new residence, but they were practically foreclosed from doing so by the ordinance.

The issue is therefore whether the Duartes established actual injury for purposes of standing to challenge the constitutionality of the Lewisville ordinance. The Supreme Court has explained that “actual injury” for standing purposes means “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (citations omitted). In Lujan, the Court explained a key question is “whether the plaintiff is himself an object of the [government] act...