1. Plaintiff brought this suit pursuant to 42 U.S.C. §1983, alleging that the sign ordinance of the City of Fayetteville, Arkansas, as applied, is an unconstitutional content-based regulation of expression, violating his First Amendment and equal protection rights. Certain conduct of separate defendants Estes and Williams is alleged to have violated plaintiff's rights to due process of law. Plaintiff seeks injunctive, declaratory and punitive relief.

    2. The Court will first consider the motions to strike.  In that regard, the Court simply notes that while much of the material to which the opposing parties object is irrelevant -- or only marginally relevant -- the Court does not find it necessary to strike it.  The motions to strike will therefore be denied.
     The Court, noting that this case has, thus far, generated an excessive amount of barbed language, personal accusations, hyperbole and sarcasm from both plaintiff and defendants, admonishes all concerned to henceforth temper their oral and and written remarks and confine their presentations to the facts and the law relevant to the issues.

    3.  The Court will next consider plaintiff's Motion Requesting Leave To Amend Complaint And Motion Requesting Leave To Amend Pleading. There being no objection to the motion to amend the complaint, that motion will be granted, and plaintiff will be allowed to file his proposed Amended Complaint at any time within ten days of the date of this Order.
      With regard to the motion to amend pleadings, what plaintiff seeks is essentially to supplement his brief in opposition to the motion to dismiss. The Court will grant that motion, but will not require any additional filing, as it has, in resolving the issues presented, treated this motion as a supplement to that brief.

    4. Defendants' Motion Requesting Leave From The Court To File A Reply To Plaintiff's Brief "In Opposition To Defendants Motion To Dismiss And In Opposition To Defendants Motion For Summary Judgment" will be granted. Defendants need not file a separate copy of the brief, inasmuch as the copy attached to the motion has been fully considered by the Court.

    5. Turning now to the substance of the motions, the defendants argue that the claims against them should be dismissed for the following reasons:
* plaintiff has failed to state a claim;
* plaintiff's action is barred by res judicata and collateral estoppel;
* defendants have immunity;
* plaintiff has failed to state a claim for punitive damages;
* defendants are entitled to judgment on the pleadings; and
* defendants are entitled to summary judgment.
    The Court will examine each of these contentions in turn, but before doing so, it will be helpful to have some factual background against which to analyze them.
    6. The following facts appear to the Court to be essentially undisputed:
    * The City of Fayetteville ("the City") has in effect a sign ordinance ("the Ordinance"), found at Chapter 174 of the City Code. This Ordinance regulates the location, size, shape, and other features of signs within the City. The Ordinance is a detailed piece of municipal legislation, with thirteen sections, many composed of subparts.
    * The Ordinance commences by stating that a permit is required to keep a sign within the City, unless exempted as provided in the Ordinance. §174.01(A).* The section on exemptions provides, in relevant part, as follows:  
§174.03 EXEMPTIONS. Exemptions shall not be construed as relieving the owner of such signs from the responsibility of complying with certain applicable provisions of this chapter. The exemptions shall apply to the requirement for sign permit only, and no sign permit shall be required for the erection of the following signs:
    I. Time and Temperature Displays. Time and temperature displays without advertising matter, providing all clearances prescribed herein for signs similarly located are maintained.
    K. Signs Located in Buildings. All signs located within a building that are not visible to the public outside said building.
* Section 174.08 lists prohibited signs, and provides as follows:
    B. Fluctuating Illumination. It shall be unlawful for any person to erect additional attraction devices or signs or to continue in operation an attraction device or sign which flashes, blinks, or is animated. Illumination of attraction devices or signs located in the City that fluctuates [sic] in light intensity shall be prohibited.
        * Plaintiff installed an electronic message sign inside a building, facing a window where its changing messages could be seen from outside the building. The sign displays three or four words at a time. Each display lasts for some fifteen seconds, then the screen goes blank for about five seconds, and the next words in the message are displayed. The messages displayed are plaintiff's political and religious opinions.
        * City officials notified plaintiff that his sign violated the Ordinance, because it flashed, blinked, or was animated. Plaintiff refused to alter or remove the sign, and criminal prosecution for violation of the Ordinance in the Fayetteville Municipal Court ensued. Plaintiff was convicted of violating the Ordinance, and was fined.
        *  Plaintiff appealed his conviction to the Circuit Court of Washington County, Arkansas. Before trial, he entered "a plea" to the charge of violating the Ordinance. The City, for its part, remitted the fine and agreed to allow plaintiff to change the message on his sign once every three hours.
        * Plaintiff then brought this suit, contending that the Ordinance is unconstitutional as applied, because the City allows flashing or blinking time and temperature signs but will not allow his flashing or blinking message sign.  
        7. Defendants first argue that plaintiff has failed to state a claim, and that his Complaint is therefore subject to dismissal pursuant to F.R.C.P. 12(b) (6). The Court will not address this argument, however, because where matters outside the pleadings are considered, a motion to dismiss may be treated as a motion for summary judgment and disposed of as provided in F.R.C.P. 56. The Court has considered such outside matters -- and the parties have briefed the matter of summary judgment. The motion to dismiss for failure to state a claim will therefore be denied as moot.
        8. Defendants next argue that plaintiff's action should be dismissed because it is barred by the doctrines of res judicata and collateral estoppel. This argument takes two forms:
    (a) that previous cases decided by the Arkansas Supreme Court have upheld the constitutionality of the Ordinance, and 
    (b) that plaintiff had a full and fair opportunity to litigate the matter in his own state criminal case.
    In determining the preclusive effect of prior state court decisions, the federal court looks to state law. Sonde1 v. Northwest Airlines. Inc., 56 F.3d 934 (8th Cir. 1995). The Arkansas Supreme Court has given the following explanation of res judicata and collateral estoppel:
            The concept of res judicata has two facets, one being issue preclusion and the other claim preclusion...  Under the claim-preclusion aspect of the res judicata doctrine, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim. Res judicata bars not only the relitigation of claims which were actually litigated in the first suit, but also those which could be litigated. Where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. The doctrine of res judicata applies only when the party had a fair and full opportunity to litigate the issue in question.               The doctrine of collateral estoppel or issue preclusion, on the other hand, bars the relitigation of issues of law or fact actually litigated by the parties in the first suit. When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. However, both claim preclusion and issue preclusion are applicable when the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question.
Huffman v. Alderson, 335 Ark. 411, 983 S.W.2d 899 (1998) (internal citations omitted).

        (a) Defendants first argue that preclusion is called for because previous cases decided by the Arkansas Supreme Court have upheld the constitutionality of the Ordinance. Fatal to this argument is that none of those cases addressed the precise constitutional issue raised by the case at bar. They addressed the constitutionality of sign ordinances in general, as regulations promoting traffic safety and municipal beauty, and most of them also addressed the constitutionality of amortization provisions for nonconforming signs that predated the Ordinance. While City of Fayetteville v. S&H. Inc., 261 Ark. 148, 547 S.W.2d 94 (1977) did, as defendants assert, uphold the constitutionality of an ordinance prohibiting flashing or blinking signs (Plaintiff does not contend that the City would be acting in an unconstitutional manner to ban all flashing or blinking signs) , it did not consider whether it is constitutional to allow a flashing or blinking sign which displays time and temperature, while prohibiting a flashing or blinking sign which displays some other message. The Court concludes that none of the cases cited by defendants will sustain their preclusion argument.
        (b) Defendants next argue that plaintiff raised the precise issue raised in this case in defense of the criminal charges brought against him. Plaintiff concedes that he raised his constitutional argument in the criminal case, and that it was in fact his "main plea." Were that the whole of the matter, the Court would find that res judicata applies. However, an examination of what transpired leads to a different conclusion.
        Defendants submitted excerpts from the transcript of the Plea Taking before Judge Storey, in which defendant Warrick recited that the City would recommend the suspension of fines and costs imposed on plaintiff by the Municipal Court in exchange "for a plea" and for plaintiff's agreement not to change his sign any more frequently than once every three hours. To that, plaintiff replied "I agree to that, I'll only change the signs as much as once every three hours. Thank you."
       Judge Storey entered an Order on November 5, 2001, reciting that "in exchange for Defendant's plea to the charge," and "conditioned upon Defendant's electronic sign changing the message displayed no more frequently than once every three hours," the fines and court costs previously imposed by the Fayetteville Municipal Court were suspended. 
        Nowhere in this sequence of events is there any ruling on the constitutional issue. Defendants argue that plaintiff chose to be bound by the findings of the criminal proceedings, but there are no such findings. Judge Storey did not rule on the constitutionality of the Ordinance as applied. While plaintiff did "plead to the charge," neither the transcript of the plea taking nor the Order entered in connection therewith indicates that he pled guilty. Should plaintiff then be bound by a finding that the Ordinance was constitutional or by a finding that it was unconstitutional? To state these questions is to demonstrate that what occurred in the criminal case does not permit either to be answered with any degree of certainty. The Court, therefore, concludes that plaintiff cannot in fairness be subjected to claim or issue preclusion in this Court based on what transpired in his criminal case.
        9. The defendants next argue that the case against them must be dismissed because they have immunity. As for the City, this argument must be summarily denied, because municipalities do not enjoy immunity from §1983 claims. Owen v. City of Independence, Mo., 445 u.s. 622 (1980).
        As to the individual defendants, in order to determine whether immunity applies, it is necessary to determine what actions of each defendant are said to be in violation of §1983. A review of the Complaint -- and of the proposed Amended Complaint which the Court has determined to allow to be filed -- reflects the following allegations as to the individual defendants:  
        * That Clinton K. Jones, City Prosecutor, decided to settle plaintiff's appeal of his criminal charges by refunding his fine and allowing him to change the sign's message every three hours;
* That Kit Williams, City Attorney, "raked" one of plaintiff's witnesses, who is a City employee, "over the coals," and instructed him not to speak to plaintiff, thereby intimidating him with regard to giving testimony favorable to plaintiff;
* That Bob Estes, a member of the City Planning Commission, told plaintiff that indoor signs were not regulated by the Ordinance, then testified that he could not remember the specifics of the conversation and that it was his opinion that indoor signs were under the same regulations as outdoor signs;
* That Mike McKimmey, the City Sign Inspector, told plaintiff that indoor signs were not regulated by the Ordinance.
        All individual defendants are sued in both their official and their individual capacities. The difference between individual-capacity claims and official-capacity claims is important to the resolution of the immunity arguments.
        Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, "generally represent only another way of pleading an action against an entity of which an officer is an agent.". . . When it comes to defenses to liability, an official in a personal- capacity action may, depending on his position, be able to assert personal immunity defenses, such as objectively reasonable reliance on existing law. In an official-capacity action, these defenses are unavailable. The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.  
Kentuckv v. Grahm, 473 u.s. 159 (1985) (internal citations omitted). 
        The Court finds that plaintiff's claims against all individual defendants in their individual capacities must be dismissed. Taking the simplest case first, neither the Complaint nor the proposed Amended Complaint sets forth any i allegations whatsoever as to Brant Warrick, and plaintiff's claim against him -- both in his individual and his official capacity -- will therefore be dismissed.   (Were claims stated as against Warrick as an individual, the Court believes that e would have immunity pursuant to Imbler v. Pachtman, and those claims would therefore be subject to dismissal.)  Likewise, even reading the Complaint and the proposed Amended Complaint broadly, the most that is urged as against Mike McKimmey is that he told plaintiff something that turned out to be incorrect. The claims against him -- both in his individual and his official capacity -- will likewise be dismissed.
        The allegations against Clinton K. Jones go exclusively to his performance of his duties as a prosecutor, as to which he has absolute immunity. Imb1er v. Pachtman, 424 U.S. 409 (1976). The claims against Jones in his individual capacity will therefore be dismissed.
        The claims against Bob Estes go to his testimony as a witness. Witnesses are shielded by absolute immunity.  Briscoe v. LaHue, 460 u.s. 325(1983). The claims against Estes in his individual capacity will therefore be dismissed.
        Defendants argue that the actions of Kit Williams are so "closely associated with the judicial process" that he is entitled to absolute immunity pursuant to Cleavinqer v. Saxner, 474 u.s. 193 (1985). The Court is not persuaded, however, that Williams is in a position "sufficiently 'judicial' to qualify for absolute immunity." Under the functional approach to immunity set forth in Cleavinger,  his position within the executive structure of City government would entitle him only to qualified immunity.
        Williams will be entitled to qualified immunity if it can be established that his alleged conduct did not knowingly violate clearly established constitutional or statutory rights of which he knew or should have known. Harlow v. Fitzgerald, 457 U.S. 800 (1982). The gravamen of plaintiff's claim against Williams is that Williams intimidated a witness who would have testified in plaintiff's criminal trial that McKimmey and Estes told the witness that indoor signs were not regulated, thereby depriving plaintiff of the due process of law.
        The Court does not find that this alleged conduct, even if it were proven, would have deprived plaintiff of due process of law. What McKimmey and Estes told the witness would not have exonerated plaintiff in the criminal case under any scenario. Before his prosecution, plaintiff was informed -- in writing -- of the interpretation placed on the Ordinance by City officials, and given an opportunity to come into conformity therewith. Thus even if McKimmey and Estes had told plaintiff that indoor signs were not regulated, plaintiff would have been disabused of this belief before he was prosecuted, and could have avoided prosecution by bringing his behavior into conformity with the way the City interpreted the Ordinance.
        Under these circumstances, the Court finds that Williams is entitled to the defense of qualified immunity to the claims against him in his individual capacity.
        10. Defendants argue that plaintiff has failed to state a claim for punitive damages because he did not plead that the actions of defendants were willful, wanton, or taken with conscious indifference. This argument mistakes the standard for punitive damages in a §1983 suit. Punitive damages in such a suit are appropriate when conduct is shown to be motivated by evil motive or intent, or involve reckless or callous indifference to the rights of others. Smith v. Wade, 461 U.S. 30 {1983}. Punitive damages are not, however, available in a §1983 action against a municipality, Newport v. Fact Concerts.,453 U.S. 247 {1981}, and the claim for punitive damages against the City and against the individual defendants in their official capacities will therefore be dismissed.  Because plaintiff's claims against the individual defendants in their individual capacities are being dismissed, the claim for punitive damages must also be dismissed.
        11. Defendants next argue that they are entitled to judgment on the pleadings. "Judgment on the pleadings should be granted only if the moving party clearly establishes that there are no material issues of fact and that it is entitled to judgment as a matter of law. . . . When considering a motion for judgment on the pleadings. . . the court generally must ignore materials outside the pleadings, but it may consider 'some materials that are part of the public record or do not contradict the complaint'." Porous Media Corp. v. Pall Corp., 186 F.3d 1077 (8th Cir. 1999).
        In the case at bar, the Court believes that the issues presented can only be resolved by going beyond the pleadings and matters that are of public record. The requested judgment on the pleadings must therefore be denied.
        12. Finally, defendants contend that they are entitled to summary judgment. Summary judgment is not appropriate unless all the evidence points toward one conclusion, and is susceptible of no reasonable inferences sustaining the position of the nonmoving party. Hardin v. Hussmann Corp., 45  F.3d 262 (8th Cir. 1995).
        In the case at bar, plaintiff contends that he is being subjected to a content-based application of the Ordinance, in that flashing signs displaying time and temperature messages are allowed, but flashing signs displaying political or religious messages are not.  
        Defendants assert that the display of time and temperature is "merely the display of a 'tool' . . . that does not arise to the level of expression" and that this display is exempt from the prohibition of flashing or blinking signs because "it is determined that such information is by its very nature time sensitive and is useful and beneficial to the public." There is, however, no evidentiary support for the latter assertion, nor does the Ordinance, by its plain wording, support the former. Without reviewing the extensive arguments submitted by the parties, the Court simply notes that, given the light in which plaintiff's evidence must be viewed on a motion for summary judgment, it cannot be said that all the evidence leads to a conclusion that plaintiff's argument has no merit. The motion for summary judgment must therefore be denied.
        13. Plaintiff moves for partial judgment as a matter of law, arguing that the Ordinance is both unconstitutional as applied and unconstitutional on its face. Regardless of whether this motion is treated as one for judgment on the pleadings, or summary judgment, the Court believes that, as with defendants' motions, the issues presented can only be resolved by going beyond the pleadings and into matters as to which disputed factual assertions must be resolved. Plaintiff's request for judgment as a matter of law must therefore be denied.
        14. Defendants have also filed a motion seeking Rule 11 sanctions. The Court is not persuaded that the conduct of plaintiff to this point merits sanctions, and the motion will therefore be denied.
        IT IS THEREFORE ORDERED that defendants' Motion To Dismiss is granted in part and denied in part. The motion is granted as to plaintiff's claims against Clinton K. Jones, Kit Williams, and Bob Estes in their individual capacities, and as to plaintiff's claims against Brant Warrick and Mike McKimmey in both their individual and official capacities, and those claims are hereby dismissed. The motion is also granted as to the plaintiff's claims for punitive damages, and those claims are hereby dismissed. The motion is denied in all other respects.
        IT IS FURTHER ORDERED that defendants' Motion To Strike is denied.
         IT IS FURTHER ORDERED that defendants' Motion Requesting Leave From The Court To File A Reply To Plaintiff's Brief "In Opposition To Defendants Motion To Dismiss And In Opposition To Defendants Motion For Summary Judgment" is granted.
         IT IS FURTHER ORDERED that plaintiff's Motion To Strike is denied.
         IT IS FURTHER ORDERED that plaintiff's Motion Requesting Leave To Amend Complaint And Motion Requesting Leave To Amend Pleading is granted.
   IT IS FURTHER ORDERED that plaintiff's Motion For Partial Judgment [sic] As A Matter Of Law is denied.
    IT IS FURTHER ORDERED that defendants' Rule 11 Motion For Sanctions is denied.
IT IS SO ORDERED.

 

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