Thomas v. Schroer

• Decision Date: 24 June 2015
• Docket Number: No. 2:13–cv–02987–JPM–cgc.,2:13–cv–02987–JPM–cgc.
• Citation: 116 F.Supp.3d 869
• Parties: William H. THOMAS, Jr., Plaintiff, v. John SCHROER, Commissioner of Tennessee Department of Transportation, in his individual capacity; and John Reinbold; Patti Bowlan; Robert Shelby; Shawn Bible ; and Connie Gilliam, in their individual capacities, Defendants.
• Court: U.S. District Court — Western District of Tennessee

116 F.Supp.3d 869

William H. THOMAS, Jr., Plaintiff,

v.John SCHROER, Commissioner of Tennessee Department of Transportation, in his individual capacity; and John Reinbold; Patti Bowlan; Robert Shelby; Shawn Bible ; and Connie Gilliam, in their individual capacities, Defendants.

No. 2:13–cv–02987–JPM–cgc.

United States District Court, W.D. Tennessee, Western Division.

Signed June 24, 2015.

William H. Thomas, Jr., Law Office of William H. Thomas, Jr., Memphis, TN, for Plaintiff.

Dawn Jordan, Amanda Shanan Jordan, Tennessee Attorney General's Office, Nashville, TN, George G. Boyte, Jr., Jackson, TN, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR EMERGENCY TEMPORARY RESTRAINING ORDER

JON P. McCALLA, District Judge.

Before the Court is Plaintiff's Motion for Emergency Temporary Restraining Order, filed June 10, 2015. (ECF No. 96.) Defendants filed a Response in Opposition on June 15, 2015. (ECF No. 99.) For the following reasons, the Court GRANTS Plaintiff's motion.

I. BACKGROUND

This case concerns alleged violations of Plaintiff William H. Thomas Jr.'s constitutional rights. Thomas alleges the Tennessee Department of Transportation (TDOT) violated his First, Fifth, and Fourteenth Amendment rights when it removed certain of Plaintiff's billboards and signs displaying noncommercial content pursuant to the Billboard Regulation and Control Act of 1972 ("Billboard Act"), as set forth at Tennessee Code Annotated §§ 54–21–101 et seq. Thomas asserts that the billboards displaying noncommercial content are exempt from permitting pursuant to Tenn.Code Ann. § 54–21–107(a)(1) (2008).

A. Procedural Background

On December 17, 2013, Thomas filed a Complaint against all Defendants. (ECF No. 1.) On February 3, 2014, Defendants filed their First Motion to Dismiss for Lack of Jurisdiction. (ECF No. 12.) Defendants moved to dismiss, inter alia, claim no. 4 for declaratory relief as to the Crossroads Ford sign. (Id. at 1.) On March 10, 2014, Defendants filed their answer to the original complaint (ECF No. 1). (ECF No. 17.) The Court granted Thomas leave to amend the Complaint as to the claim for retaliation, and dismissed as moot in part Defendants' motion to dismiss. (ECF No. 34.) Thomas filed his Amended Complaint on October 27, 2014. (ECF No. 45.)

On October 28, 2014, Defendants filed their First Motion for Partial Dismissal of Second Amended Complaint for Failure to State a Claim. (ECF No. 46). Thomas responded in opposition to Defendants' motion to dismiss on November 28, 2015. (ECF No. 57.)

On May 22, 2015, Thomas filed a motion to amend the existing scheduling order and filed two motions to compel discovery. (ECF Nos. 86–88.) On May 22, 2015, Thomas' counsel filed a motion to withdraw as attorney (ECF No. 85), which the Court granted on June 15, 2016 (ECF No. 103). Plaintiff now precedes pro se in the case. Thomas' motions to compel were referred to the Magistrate Judge for determination on June 19, 2015. (ECF Nos. 106–07.)

On June 10, 2015, Plaintiff filed an Emergency Motion for Temporary Restraining Order ("TRO"), seeking to prevent Defendants from removing his sign at the Crossroads Ford location. (ECF No. 96.) Plaintiff also seeks to enjoin Defendants from executing any judgments "resulting [from] or associated with the Crossroads Ford billboard sign until such time as a hearing can be held on the issues...." (Id. at 1.) On June 11, 2015, Defendants filed a response in opposition to the motion for TRO. (ECF No. 99.) On June 18, 2015, a Motion Hearing was held regarding the TRO motion. (ECF No. 104.)

B. Factual Background

Defendants sought to have the Crossroads Ford sign removed through an ongoing enforcement action in Chancery Court in Shelby County, Tennessee. (Am. Compl. ¶ 27; see ECF No. 96–1 at PageID 1399–1404.) In April and October of 2011, Defendants removed two of Thomas' outdoor advertising signs (the "Kate Bond" signs). (Am. Compl. ¶¶ 33, 37; ECF No. 79 ¶¶ 33, 37.) In October 2014, Defendants removed another of Thomas' outdoor signs (the "Perkins Road sign"), even though according to Thomas, "[the] billboard was displaying exclusively on-premise, noncommercial content and therefore exempt from the permitting requirements of T.C.A. § 54–21–107(a)(1)." (Am. Compl. ¶ 40; ECF No. 79 ¶ 40.)

On May 26, 2015, Thomas received a letter on behalf of TDOT stating that Thomas must remove the sign structure at the Crossroads Ford location by June 26, 2015. (ECF No. 96–1 at PageID 1399.) Thomas also received a proposed order of judgment "declaring an unlawful billboard to be a public nuisance and permanent injunction for removal of unlawful billboard," to be subsequently submitted in Chancery Court in Shelby County, Tennessee. (Id. at PageID 1401–03.) Thomas filed the instant motion to prevent removal of the Crossroads Ford sign by TDOT.

II. STANDARD OF REVIEW

Like a preliminary injunction, a temporary restraining order is an extraordinary remedy "designed to preserve the relative positions of the parties until a trial on the merits can be held." Cf. Tennessee Scrap Recyclers Ass'n v. Bredesen, 556 F.3d 442, 447 (6th Cir.2009). The Court considers "four factors when determining whether to grant a temporary restraining order: ‘(1) whether the movant has a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of [a TRO] would cause substantial harm to others; and (4) whether the public interest would be served by issuance of [a TRO].’ " Kendall Holdings, Ltd. v. Eden Cryogenics LLC, 630 F.Supp.2d 853, 860 (S.D.Ohio 2008) (quoting Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir.2000) ).

No one factor is dispositive; instead the court must balance all four factors. In re De Lorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985). The burden of persuasion is on the party seeking the injunctive relief. Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir.1978).

III. ANALYSIS

A. Strong Likelihood of Success on the Merits

Thomas asserts violations of four constitutionally protected rights as grounds for granting a TRO with regard to the Crossroads Ford sign: 1) First Amendment right to freedom of speech; 2) procedural due process; 3) substantive due process; and 4) equal protection under the law. Because Thomas has established a strong likelihood of success on First Amendment grounds, the Court declines to address the remaining constitutional grounds asserted.

1. Content–Based Speech

"The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws ‘abridging the freedom of speech.’ " Reed v. Town of Gilbert, Ariz., ––– U.S. ––––, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236, 2015 WL 2473374, at *6 (2015) (quoting U.S. Const., Amdt. 1). The government " ‘has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ " Id. (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) ). "Content-based laws ... are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." Id.

On June 18, 2015, the Supreme Court issued its opinion in Reed, finding that certain exemptions to the town of Gilbert's sign code were facially content-based and failed strict scrutiny analysis. In the Reed opinion, the Supreme Court laid out the test for determining whether a provision regulating signage was content-neutral or content-based.

Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. E.g., Sorrell v. IMS Health, Inc., 564 U.S. ––––, ––––, ––––, 131 S.Ct. 2653, 2663–2664, 180 L.Ed.2d 544 (2011) ; Carey v. Brown, 447 U.S. 455, 462, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) ; Mosley, supra, at 95, 92 S.Ct. 2286. This commonsense meaning of the phrase "content based" requires a court to consider whether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys. Sorrell, supra, at ––––, 131 S.Ct. at 2664. Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.

Reed, 135 S.Ct. at 2227. Additionally, the Supreme Court made clear that the first step in the analysis is to "determin[e] whether the law is content neutral on its face." Id. at 2228. "A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech." Id. (internal quotation marks omitted). Moreover, "a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter." Id. at 2230. In Reed, the Supreme Court also gave examples of aspects of signs that could be regulated in a content-neutral manner, including "size, building materials, lighting, moving parts, and portability." Id. at 2232.

With regard to the sign code exemptions at issue in Reed , the Supreme Court explained,

The Town's Sign Code is content based on its face. It defines "Temporary Directional Signs" on the basis of whether a sign conveys the message of directing the public to church or some other "qualifying event." Glossary 25. It defines "Political Signs" on the basis of whether a sign's message is "designed to influence the outcome of an election." Id., at 24. And it defines "Ideological Signs" on the basis of whether a sign "communicat[es] a message or ideas" that do not fit within the Code's other categories. Id., at 23. It then subjects each of these categories to different restrictions. The restrictions in the Sign Code that apply to any given

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