Hebb v. City of Asheville
| Decision Date | 08 February 2023 |
| Docket Number | Civil 1:22-cv-00222-MR-WCM |
| Parties | ZACHARY HEBB, Plaintiff, v. CITY OF ASHEVILLE, NORTH CAROLINA, and BEN WOODY, Individually and in his official capacity, Defendants. |
| Court | U.S. District Court — Western District of North Carolina |
THIS MATTER is before the Court on the Plaintiff's Motion for Preliminary Injunction [Doc. 3], the Defendants' Motion to Dismiss [Doc. 9], and the Plaintiff and Defendant Ben Woody's Stipulation of Dismissal of Ben Woody in his Individual Capacity [Doc. 11].
On October 20, 2022, the Plaintiff, Zachary Hebb (“Plaintiff”), initiated this action against Defendant City of Asheville (“the City”) and Ben Woody. [Doc. 1]. In his Verified Complaint, the Plaintiff challenges “the constitutionality of Asheville ordinance § 10-85(2) on its face and as applied to Hebb's oral amplified speech on public ways near [the] Asheville Health Center of Asheville, North Carolina, Inc. (‘AHC') clinic.” [Id. at ¶ 1].
On October 24, 2022, the Plaintiff filed the present Motion for Preliminary Injunction. [Doc. 3]. In his Motion, the Plaintiff seeks to enjoin the Defendants “from applying or enforcing City Ordinance § 10-85(2) to ban the use of amplification within 150 feet of [the AHC] and other medical clinics.” [Id. at 1].
On November 15, 2022, the Defendants filed a Motion to Dismiss the Plaintiff's claims in their entirety. [Doc. 9]. On November 17, 2022, the Plaintiff filed a Stipulation of Dismissal as to Defendant Woody in his individual capacity. [Doc. 11].
A plaintiff seeking a preliminary injunction must demonstrate that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm absent injunctive relief, (3) the balance of the equities tips in his favor, and (4) the injunction would be in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). “A preliminary injunction is an extraordinary remedy never awarded as of right.” Id. at 24, 129 S.Ct. at 376. A Plaintiff seeking a preliminary injunction “need not establish a certainty of success, but must make a clear showing that he is likely to succeed at trial.” Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (internal quotation marks omitted). Ultimately, a plaintiff's entitlement to preliminary injunctive relief is a matter of discretion with the Court. See Metro. Regul. Info. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591, 595 (4th Cir. 2013).
“While it is [the] Plaintiff['s] burden, as the movant[], to make a showing sufficient to justify a preliminary injunction, ‘the burdens at the preliminary injunction stage track the burdens at trial.'” Harmon v. City of Norman, 981 F.3d 1141, 1147 (10th Cir. 2020) (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429, 126 S.Ct. 1211, 1219, 163 L.Ed.2d 1017 (2006)). Accordingly, when “the proponent of a challenged ordinance fails to make a sufficient showing that its regulation is constitutional, the movants will have shown a substantial likelihood that they will prevail on the merits of their claim challenging the validity of that regulation.” Id.; see also Ashcroft v. ACLU, 542 U.S. 656, 666, 124 S.Ct. 2783, 2791-92, 159 L.Ed.2d 690 (2004) ().
“When considering a motion for preliminary injunction, a district court may assess the relative strength and persuasiveness of the evidence presented by the parties, and is not required to resolve factual disputes in favor of the non-moving party.” Queen Virgin Remy, Co. v. Thomason, No.1:15-cv-1638-SCJ, 2015 WL 11422300, at *2 (N.D.Ga. June 10, 2015), modified No. 1:15-cv-1638-SCJ, 2015 WL 11455760 (N.D.Ga. Oct. 21, 2015) (citing Imaging Bus. Machs., LLC v. BancTec, Inc., 459 F.3d 1186, 1192 (11th Cir. 2006)). If the evidence is contested, however, the court must “assess the facts, draw whatever reasonable inferences it might favor, and decide the likely ramifications.” Weaver v. Henderson, 984 F.2d 11, 14 (1st Cir. 1993) (quoting Indep. Oil & Chem. Workers of Quincy, Inc. v. Proctor & Gamble Mfg. Co., 864 F.2d 927, 933 (1st Cir. 1988)).
At a preliminary injunction stage, allegations set forth in a verified complaint are treated the same as affidavits. IDS Life Ins. Co. v. SunAmerica Life Ins. Co., 136 F.3d 537, 542 (7th Cir. 1998) (); Synthes USA, LLC v. Davis, No. 4:17-cv-02879-RBH, 2017 WL 5972705, at *1 n.2 (D.S.C. Dec. 1, 2017) ( that “a verified complaint is wholly sufficient for purposes of ruling on a preliminary injunction motion.”) (citation omitted).[1]
The central issue for resolving a Rule 12(b)(6) motion is whether the complaint states a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d 186, 183 (4th Cir. 2009). In considering a defendant's motion, the Court accepts the plaintiff's allegations as true and construes them in the light most favorable to the plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009); Giacomelli, 588 F.3d at 190-92.
Although the Court accepts well-pled facts as true, the Court is not required to assume the truth of “bare legal conclusions.” Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011). “The mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012).
The claims need not contain “detailed factual allegations,” but must contain sufficient factual allegations to suggest the required elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007); see also Consumeraffairs.com, 591 F.3d at 256. Namely, the complaint is required to contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. at 1974; see also Consumeraffairs.com, 591 F.3d at 255. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see also Consumeraffairs.com, 591 F.3d at 255. The mere possibility that a defendant acted unlawfully is not sufficient for a claim to survive a motion to dismiss. Consumeraffairs.com, 591 F.3d at 256; Giacomelli, 588 F.3d at 193. Ultimately, the well-pled factual allegations must move a plaintiff's claim from possible to plausible. Twombly, 550 U.S. at 570, 127 S.Ct. at 1974; Consumeraffairs.com, 591 F.3d at 256.
The Plaintiff is a resident of Penrose, North Carolina. [Doc. 1 at ¶ 11]. Defendant City of Asheville is alleged to be a municipal governmental authority[2] with the authority to enact and enforce local ordinances. [Id. at ¶ 12]. Defendant Ben Woody is the former Director of the Asheville Development Services Department (“DSD”), where he was responsible for drafting, presenting, and enforcing noise ordinances in Asheville. [Id. at ¶ 13; Woody Affidavit, Doc. 7-1 at ¶ 2].
The Plaintiff is a Christian who believes that abortion “is an affront to God.” [Doc. 1 at ¶¶ 14-16]. In 2019, the Plaintiff began sharing his views about abortion on public ways near the AHC in Asheville. [Id. at ¶ 17]. The AHC is a Planned Parenthood facility that functions as the sole abortion provider in Western North Carolina. [Id. at ¶ 19]. The AHC is located at 68 McDowell Street in Asheville within an area zoned for various medical facilities. [Id. at ¶ 18]. The AHC provides abortions on Thursdays and Fridays. [Id. at ¶ 153].
The Plaintiff frequently visits the public areas around the AHC on days that the clinic performs abortions as well as on other days during the week. [Id. at ¶ 26]. Occasionally, the Plaintiff holds signs or hands out literature conveying his viewpoints about abortion. [Id. ¶ 27]. However, he does not find those means of communication to be very effective because visitors “only have a brief moment to read his signs,” and AHC staff and escorts direct visitors not to stop in the driveway, thereby “precluding Hebb from handing out literature.” [Id.]. Oral speech is the Plaintiff's “primary and by far most effective means of communication at [the] AHC clinic,” and the Plaintiff uses an amplifier when speaking on public ways near the AHC. [Id. at ¶¶ 28, 29]. The Plaintiff “tries to convince pregnant women, along with friends and family with them, not to go through with the abortion procedure[.]” [Id. at ¶ 21].
The Plaintiff prefers to convey his message through oral speech with a conversational tone. [Id. at ¶¶ 28, 30]. Although the Plaintiff can be heard without using amplification by yelling, he does not want to yell to be heard because yelling “undercuts his message and purpose.” [Id. at ¶¶ 30, 167]. The Plaintiff's ability to be heard without using amplification is further hindered by music and other noise played by AHC staff and escorts through blue tooth speakers and cell phones on AHC property. [Id. at ¶¶ 168-170]. This noise from AHC staff and escorts drowns out the speech of the Plaintiff and others. [Id.].
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