Thomas v. Schroer, 2:13-cv-02987-JPM-cgc
| Decision Date | 14 September 2015 |
| Docket Number | No. 2:13-cv-02987-JPM-cgc,2:13-cv-02987-JPM-cgc |
| Parties | WILLIAM H. THOMAS, JR., Plaintiff, v. JOHN SCHROER, Commissioner of Tennessee Department of Transportation, in his official and 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 |
Before the Court is Defendants' motion for partial dismissal of second amended complaint, filed October 28, 2014. (ECF No. 46.) Plaintiff Thomas filed a response on November 28, 2014. (ECF No. 57.) The parties filed supplemental briefing on December 15, 2015. (ECF Nos. 64-65.) For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion for partial dismissal of second amended complaint.
This case concerns alleged violations of Plaintiff William H. Thomas Jr.'s constitutional rights. Thomas alleges the Tennessee Department of Transportation (TDOT) violated hisFirst, Fifth, and Fourteenth Amendment rights when it removed certain of Thomas' 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 to -123 (2008). Thomas asserts that signs displaying noncommercial content are exempt from permitting pursuant to Tenn. Code Ann. § 54-21-107(a)(1).
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 initial complaint. (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 an amended complaint on October 1, 2014. (ECF No. 38.)
On October 10, 2014, Thomas filed an emergency motion for temporary restraining order. (ECF No. 39.) On October 13, 2014, Defendants filed a motion for dismissal of amended complaint. (ECF No. 40.) The Court denied Thomas' emergency motion fortemporary restraining order as moot on October 15, 2014. (ECF No. 43.)
On October 27, 2014, Thomas filed a second amended complaint. (ECF No. 45.) Defendants filed the instant motion for partial dismissal of the second amended complaint on October 28, 2014. (ECF No. 46.) Thomas responded in opposition to Defendants' motion to dismiss on November 28, 2014. (ECF No. 57.) The parties filed supplemental briefing on December 15, 2014. (ECF Nos. 64-65.)
On May 22, 2015, Thomas filed two motions to compel discovery and a motion to amend the existing scheduling order. (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, 2015 (ECF No. 103). Thomas now proceeds 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, Thomas 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.) Thomas sought 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 June11, 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.) On June 24, 2015, the Court entered an order granting Thomas' motion for emergency temporary restraining order. (ECF No. 110.)
On July 8, 2015, Defendants filed supplemental briefing in opposition to issuance of a preliminary injunction. (ECF No. 118.) Thomas filed a reply brief in support of a preliminary injunction on July 13, 2015. (ECF No. 124.) The Court held a preliminary injunction hearing on July 14, 2015. (ECF No. 125.) On September 8, 2015, the Court entered an order granting a preliminary injunction. (ECF No. 163.)
Thomas is the owner of various tracts of real property at various locations in the State of Tennessee. (ECF No. 45 ¶ 10.) Thomas is in the business of posting outdoor advertising signs for the display of commercial and noncommercial messages. (Id. ¶ 11; ECF No. 79 ¶ 11.) Thomas alleges that on several occasions, he has used outdoor advertising signs located on property in which he possesses a property interest, for the display of noncommercial messages. (ECF No. 45 ¶ 12.)
TDOT has the responsibility of promulgating and enforcing regulations related to billboards and outdoor advertising signsunder the Billboard Act. (Id. ¶ 13; ECF No. 79 ¶ 13.) The State of Tennessee and TDOT are authorized to regulate billboards and outdoor advertising signs pursuant to the Federal Highway Beautification Act of 1965 ("HBA"), as amended. (ECF No. 45 ¶ 14; ECF No. 79 ¶ 14.)
Thomas alleges that Defendants "[have] embarked on courses of action whereby the established practices and policies of TDOT are not utilized with respect to Mr. Thomas' applications and existing signs." (ECF No. 45 ¶ 20.) Thomas argues that the personal statements and messages on his billboards are noncommercial speech, and therefore are exempt from permitting under Tennessee law because Thomas controls the property where the signs are located. (Id. ¶¶ 22-26.)
In 2008 and 2009, Defendants removed Thomas' signs located in Fayette County (the "Fayette County signs"). (Id. ¶ 39; ECF No. 79 ¶ 39.) Defendants removed two of Thomas' outdoor advertising signs—referred to as the "Kate Bond signs" in April and October of 2011. (ECF No. 45 ¶¶ 33, 37; ECF No. 79 ¶¶ 33, 37.) In October 2014, Defendants removed another of Thomas' outdoor signs (the "Perkins Road sign"). (ECF No. 45 ¶ 40; ECF No. 79 ¶ 40.) Thomas alleges that the Perkins Road sign "was displaying exclusively on-premise, non-commercial content" at the time of removal. (ECF No. 45 ¶ 40.)
Defendants sought to have the Crossroads Ford sign removed through an ongoing enforcement action in Chancery Court in Shelby County, Tennessee. (ECF No. 45 ¶ 27; ECF No. 79 ¶ 27.) Thomas alleges that this ongoing enforcement action is a continuation of an adversarial relationship between the parties. (ECF No. 45 ¶ 29.) Indeed, the Chancery Court issued an injunction order in May of 2007, which included findings that there was "'substantial evidence of selective and vindictive enforcement against the Defendant Thomas' by TDOT." State ex rel. Com'r of Dep't of Transp. v. Thomas, 336 S.W.3d 588, 595 (Tenn. Ct. App. 2010). The Chancery Court enjoined TDOT "from engaging in any further selective or vindictive enforcement acts with regard to Defendant and Counter-Plaintiff Thomas." (ECF No. 45 ¶ 31; ECF No. 79 ¶ 31.) Thomas alleges, "During this enforcement action, TDOT conceded that it had allowed similarly situated billboards, that the Department initially alleged were illegal, to display non-commercial messages and thereafter be treated as exempt from TDOT regulation under T.C.A. § 54-21-107(a)(1)." (ECF No. 45 ¶ 28.) Defendants deny this allegation (ECF No. 79 ¶ 28), and the Chancery Court's injunction was later vacated on jurisdictional grounds (ECF No. 45 ¶ 32; ECF No. 79 ¶ 32).
Thomas also asserts that "Defendants have refused to issue [him] permits for outdoor advertising displays on propertydesignated as a [Planned Unit Development] ("PUD") in Shelby County[, Tennessee]" even though such permits have traditionally been granted and are required by the HBA. (ECF No. 45 ¶¶ 43-47.)
Thomas asserts that he received a letter on May 26, 2015, from George Boyte on behalf of TDOT and Defendant Schroer, which stated that Thomas must remove the sign structure at the Crossroads Ford location by June 26, 2015. (ECF No. 96 at 4.) Thomas asserts he received an additional letter on June 1, 2015, from George Boyte on behalf of TDOT and Defendant Schroer, which stated that they would be seeking an order from Chancellor Evans in Shelby County Chancery Court, granting them permission to forcibly remove the sign structure at Crossroads Ford. (Id. at 4-5.) Thomas asserts that he received an Application for Entry of Judgment Declaring a Public Nuisance and Injunction for Removal of Unlawful Billboard on June 5, 2015, from George Boyte on behalf of Defendants and TDOT wherein they seek to have the billboard at Crossroads Fords declared a public nuisance and have it forcibly removed. (Id. at 5.)
Thomas alleges that Defendants, in their individual capacities, violated his First Amendment rights and equivalent free speech guarantees under the Tennessee Constitution. (ECF No. 45 ¶¶ 61-72.) Thomas alleges that Defendants retaliated in violation of his First Amendment rights. (Id. ¶¶ 73-79.)Thomas fears that "[b]ased on Defendants' unlawful removal of the Kate Bond signs, there is a risk that Defendants will remove the Crossroads Ford sign." (Id. ¶ 67.) Consequently, Thomas seeks a declaratory judgment against Defendant Schroer in his official capacity. (Id. ¶¶ 93-102.) Thomas also alleges that Defendants in their individual capacities violated his equal protection rights under the Fourteenth Amendment (Id. ¶¶ 80-92).
Under Rule 12(b)(6), a court can dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2).
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