RHJ MEDICAL CENTER, INC. v. CITY OF DUBOIS (W.D.Pa. 12-7-2010)

32-fn42 it finds no refuge in our jurisprudence of municipal liability. Defendant provides no citations to substantiate the "shoot the messenger" theory of liability, other than several cases that deal with immunity for individuals, rather than immunity for a municipality. These precedents are inapposite. Beyond the lack of support, the implications of this theory are troubling. The Defendant seems to assert that it is the sovereign state, and not the municipality, that should be held liable for enacting unconstitutional laws which are applied by the municipality. This cannot be correct. According to the Supreme Court's interpretation of the 11th Amendment, a state as sovereign cannot be sued in federal court by a citizen. Hans v. Louisiana, 131 U.S. 1 (1890). Citizens can only sue state officials under the Ex parte Young fiction for injunctive relief if the state official was prosecuting the citizen for violation of a state law. 209 U.S. 123 (1908).

SOPHOCLES, SOPHOCLES, VOLUME II. ANTIGONE. THE WOMEN OF TRACHIS. PHILOCTETES. OEDPIUS AT COLONUS (Hugh Lloyd-Jones trans., Loeb Classical Library 1994) (442 B.C.) ("No one loves the messenger who brings bad news.").

WILLIAM SHAKESPEARE, ANTHONY AND CLEOPATRA, act 1, sc. 2. ("The nature of bad news infects the teller.").

Ex parte Young would not apply in this case, as the actor seeking to enforce the state law was the City of DuBois, not an official of the Commonwealth. A suit could not proceed against any state official under Ex parte Young. According to the Defendant's theory, a suit could not lie against the City, because it was simply enforcing a state law. If the Court were to adopt the Defendant's theory, Plaintiff would be unable to sue the municipality, and would be unable to sue the state — there would be a clear violation of rights, without a remedy. This inappropriate and unacceptable conclusion would stand in the face of the bedrock principles upon which our Republic was founded. See Marbury v. Madison, 5 Cranch 137 (1803) (Marshall, C.J.) ("The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.").

This holding also conflicts with the responsibility of government officials to comport their actions with our Constitution. Indeed, our Constitution requires that all "Members of the several State Legislatures" and executive officers "of the Several states, shall be bound by Oath or Affirmation, to support this Constitution." U.S. CONST. art. VI. See also Socialist Workers Party v. Martin, 345 F.Supp. 1132, 1134 (S.D. Tex. 1972) (finding that Article VI of the Constitution provides for affirmation of support of the Constitution from candidates for municipal offices). As the Supreme Court stated, "a decisionmaker would be derelict in his duties if, at some point, he did not consider whether his decision comports with constitutional mandates." Owen v. City of Independence, 445 U.S. 622, 656 (1980). Municipalities cannot shirk their responsibility to follow this oath, and do not receive immunity for blindly following laws passed by a state. See Owen, at 651-52 ("The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens' constitutional rights."). Defendant is not immune from liability under Counts I, II, and III.

V. Federalism

Defendant argues that this Court cannot "consistent with precepts of federalism, enter the sphere of local governance and order the City to grant RHJ" a permit, as this would "impermissibly interfere in the local governance of the City." Then-Justice Rehnquist wrote in Rizzo v. Goode in 1976, long before the so-called "Federalism Revolution" of the Rehnquist Court, that "where injunctive relief is sought, not against the judicial branch of the state government, but against those in charge of an executive branch of an agency of state or local governments" the "principles of federalism which play such an important part" must be considered. 423 U.S. 362, 380 (1976). In these situations, there are "delicate issues of federal-state relationships." Id. citing Mayor v. Educational Equality League, 415 U.S. 605, 615 (1974) (Powell, J.).

This Court is not prepared to sit as a "zoning court of appeals," Chesterfield Development Corp. v. City of Chesterfield, 963 F.2d 1102, 1004 (8th Cir. 1992), and does not seek to "transform[] run-of-the-mill zoning cases into cases of constitutional right," Village of Willowbrook v. Olech, 582 U.S. 562, 566 (2000) (Breyer, J., concurring). In this case, the Court will approach the issuance of any injunctions with the proper respect for principles of federalism. Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 104 n. 13 (1984) citing Rizzo v. Goode, 423 U.S. 362, 378 (1976) ("Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the `special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.'"). However, this challenge is somewhat premature. The Court is not awarding injunctive relief at this stage. The Court is only considering the Motion for Judgment on the Pleadings. What relief, if any, is awarded at a later stage is not before the Court at this time.

VI. Statute of Limitations

Both parties agree that claims brought under 42 U.S.C. § 1983, § 504 of the Rehabilitation Act, and Title II of the Americans with Disabilities Act, apply the forum state's statute of limitations for personal injury claims. Wilson v. Garcia, 471 U.S. 261 (1985); Disabled in Action of Pennsylvania v. Southeastern Pa. Transp., 539 F.3d 199, 208 (3d Cir. 2008). Both parties agree that the Commonwealth of Pennsylvania applies a two-year statute of limitations to personal injury claims. 42 Pa. Const. Stat. § 5524. The complaint was filed on May 14, 2009. Both parties agree that Plaintiff can rely on any claims that accrued after May 14, 2007. Plaintiff asserts that "Plaintiff can only rely on events and transactions that took place on or after May 14, 2007." This is not correct, and misstates the operation of the statute of limitations. Plaintiff can only raise claims that accrued following May 14, 2007, but is in no way barred from relying on evidence that came into existence prior to that date.

Plaintiff relies on two primary events to establish its case. First, the City's denial of the zoning application on May 14, 2007, and second, the enactment of the new zoning ordinance on November 27, 2007. Both of these events occurred within the statute of limitations. Plaintiff does discuss certain facts in its pleadings, which occurred in the time period beginning in October of 2006 when the City attempted to enjoin the opening of the clinic. Plaintiff could not — and did not — assert a claim based events that occurred before May 14, 2007. Rather, Plaintiff simply relies on these events, including the actions of the City of DuBois in 2006 with respect to the enforcement of § 621, to establish the factual record. This is permissible, to the extent that Plaintiff is not attempting to litigate claims based on events that occurred before May 14, 2007. All of Plaintiff's claims are timely filed and not barred by the statute of limitations.

VII. Ripeness

Defendant claims that RHJ's attempt to raise an as-applied challenge to the new ordinance is not ripe. The Third Circuit has held that in as-applied challenges "in cases involving land-use decisions, a property owner does not have a ripe constitutional claim until the zoning authorities have had an opportunity to arrive at a final, definitive position regarding how they will apply the regulations at issue to the particular land in question." Sameric Corp. of DE v. City of Philadelphia, 142 F.3d 582 (3d Cir. 1998). See also Acierno v. Mitchell, 6 F.3d 970, 974-75 (3d Cir. 1993); Taylor Investment, Ltd. v. Upper Darby Twp., 983 F.2d 1285 (3d Cir. 1993). Under the "finality rule," a plaintiff property owner must prove that a "final decision has been reached by the agency before it may seek compensatory or injunctive relief in federal court on federal constitutional grounds." Acierno, 6 F.3d at 975. It is undisputed that Plaintiff has not applied for a permit or variance under the New Ordinance. Defendant claims that the failure to seek a final decision from the Council renders this challenge unripe.

However, Plaintiffs do not challenge the constitutionality of the New Ordinance under the 14th Amendment as-applied. Rather, they challenge it on its face. (Compl. ¶ 71.) ("A city zoning ordinance that bars the establishment or operation of drug treatment clinic in districts where other medical treatment clinics are permitted to operate is discriminatory on its face against persons with disabilities . . .") (emphasis added). The finality rule does not apply "to facial attacks on a zoning ordinance, i.e., a claim that the mere enactment of a regulation either constitutes a taking without just compensation, or a substantive violation of due process or equal protection." County Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 164 (3rd Cir. 2006). "A `final decision' is not necessary in that context because `when a landowner makes a facial challenge, he or she argues that any application of the regulation is unconstitutional; for an as-applied challenge, the landowner is only attacking the decision that applied the regulation to his or her property, not the regulation in general.'" Id. citing (Eide v. Sarasota County, 908 F.2d 716, 724 n. 14 (11th Cir. 1990)). Notwithstanding the lack of a "final decision," this matter is ripe for adjudication because, as demonstrated infra, Plaintiff states a plausible claim that the mere enactment of this ordinance violates substantive due process and equal protection.

VIII. Fourteenth Amendment Claims

Plaintiff brings claims alleging a violation of substantive due process and the equal protection clauses of the Fourteenth Amendment. All of these claims survive Defendant's Motions.

a. Procedural Due Process

Defendant claims that RHJ cannot assert a procedural due process claim because it failed to rely on the Pennsylvania court system to review any alleged constitutional deprivation of rights stemming from the zoning dispute. Plaintiff replied that it "did not assert a procedural due process claim in the Complaint." Because Plaintiff expressly waived this issue, Defendant's challenge under procedural due process is moot.

b. Substantive Due Process

Substantive due process "is an area of law `famous for controversy, and not known for its simplicity.'" DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 598 (3d Cir. 1995) (quoting Schaper v. City of Huntsville, 813 F.2d 709, 715 (5th Cir. 1987)). The "fabric of substantive due process, as woven by our courts, encompasses at least two very different threads" pertinent to this case. Nicholas v. Pennsylvania State University, 227 F.3d 133, 139 (2000) (3rd Cir. 2000) (Alito, J.). The first strand of substantive due process claims "applies when a plaintiff challenges the validity of a legislative act." Id. The second strand "protects against certain types of non-legislative state" or executive acts. Id. As then-Judge Alito instructed "[i]t is crucial to keep in mind the distinction between legislative acts and non-legislative or executive acts." Id. at nl.

Non-legislative, or executive acts, are government actions, "such as employment decisions [which] typically apply to one person or to a limited number of persons." Id. at nl. citing (Homar v. Gilbert, 89 F.3d 1009, 1027 (3d Cir. 1996) (Alito, J., concurring in part and dissenting in part)). See also, McKinney v. Pate, 20 F.3d 1550, 1557 n. 9 (11th Cir. 1994) ("Executive acts characteristically apply to a limited number of persons (and often to only one person); executive acts typically arise from the ministerial or administrative activities of members of the executive branch. The most common examples are employment terminations.") (citations omitted). In contrast, legislative acts are defined as "laws and broad executive regulations, [which] apply to large segments of society." Nicholas, at n. 1. See also, McKinney v. Pate, 20 F.3d 1550, 1557 n. 9 (11th Cir. 1994) ("Legislative acts, on the other hand, generally apply to a larger segment of-if not all of-society; laws and broad-ranging executive regulations are the most common examples.").

This distinction is significant because it determines the appropriate standard for substantive due process challenges. As Judge Alito explained in Nicholas v. Pennsylvania State Univ., "typically, a legislative act will withstand substantive due process challenge if the government `identifies the legitimate state interest that the legislature could rationally conclude was served by the statute.'" 227 F.3d 133, 139 (3d Cir. 2000) (citation omitted). In contrast, non-legislative state action violates substantive due process if it is "arbitrary, irrational, or tainted by improper motive," or if it is "so egregious that it `shocks the conscience.'" Id. (citations omitted). See also, United Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 399-400 (2003) ("executive action violates substantive due process only when it shocks the conscience") (emphasis added).

The new ordinance as well as § 621 clearly appear to be legislative acts. Both were implemented under the authority of the Pennsylvania Municipal Planning Code, which provides "The governing body of each municipality, in accordance with the conditions and procedures set forth in this act, may enact, amend and repeal zoning ordinances to implement comprehensive plans and to accomplish any of the purposes of this act." 53 P.S. § 10601. Pennsylvania courts have construed this provision such that the governing body of each municipality "is acting in a legislative capacity when considering an amendment to land use ordinances" and "the consideration and adoption of zoning amendments is a purely legislative act." Springwood Development Partners, 985 A.2d 298, 210 (Pa.Cmwlth. 2009). Furthermore, Pennsylvania courts typically characterize the duties of zoning boards as "legislative acts" or "legislative functions." Using Judge Alito's definition of "legislative act," the relevant zoning statutes in this case are "broad executive regulations, [and] apply to large segments of society," rather than "apply[ing] to one person or to a limited number of persons." Nicholas, n. 1. Facially, the zoning ordinances applied to all methadone clinics, and not just RHJ. Additionally, this case bears similarities to Concrete Corp. v. Town of Roxbury, where the Third Circuit found that a zoning ordinance should be treated as a legislative act. 442 F.3d 159, 169 (3rd Cir. 2006). The Court finds that the statutes challenged in Counts I and IV are "legislative acts."

See e.g., Ludwig v. Zoning Hearing Bd of Earl Tp, 658 A.2d 836, 838 (Pa.Cmwlth 1995) ("Without question, the promulgation of a zoning ordinance is a legislative act.") (emphasis added).

See e.g., Ethan-Michael, Inc. v. Board of Supervisors of Union Tp., 918 A.2d 203, 210 (Pa.Cmwlth. 2007) (noting that the Court cannot become involved with challenges to the "designation of zoning boundaries" without "improperly assuming almost the entire legislative function.") (emphasis added); In re Long Lane Acres Appeal, 1991 WL 356111 *3 (Pa.Com.Pl 1991) ("Rezoning is a purely legislative function reserved to the governing body") (emphasis added).

However, as discussed infra, for purposes of the equal protection analysis it seems that Plaintiff may in fact have been singled out for different treatment.

Because the statutes are legislative, and not executive acts, Plaintiff does not need to meet the "shocks the conscience test." See County Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 169 (2006) ("But United Artists did not apply the `shocks the conscience' standard to legislative action; rather, we clearly held in United Artists that `executive action violates substantive due process only when it shocks the conscience.'") citing (United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA., 316 F.3d 392, 400 (3d Cir. 2003)). Defendant incorrectly asserts that Plaintiff needs to identify a property interest for a due process challenge. Plaintiff does not need to establish a "protected property interest to which the Fourteenth Amendment's due process protection applies' as this standard only applies in a `non-legislative substantive due process claim.'" Nicholas, at 139-40 citing (Woodwind Estates v. Gretkowski, 205 F.3d 118, 123 (3rd Cir. 2000)). For Plaintiff's "facial substantive due process challenge to the Ordinance to be successful, [it] must `allege facts that would support a finding of arbitrary or irrational legislative action by the'" City of DuBois. County Concrete Corp. at 169, citing Pace Resources, Inc., v. Shrewsbury Twp., 808 F.2d 1023, 1034 (3d Cir. 1987).

In County Concrete Corp., the Third Circuit found that the appellants alleged "facts that indicate irrationality and arbitrariness, and `present a case involving actions aimed at [appellants] for reasons unrelated to land use planning.'" 442 F.3d at 170 citing Pace, at 1035. The "complaint charges appellees with attempting to impede appellants' sand and gravel extraction operations on one tract, and their attempts to expand to another tract, through false accusations, verbal disparagement and the imposition of illegal conditions and restrictions on their business in violation a 1993 agreement." Id. Following this alleged animus, the municipality "enacted the Ordinance, which rezoned appellants' land from Industrial to either Rural Residential or Open Space. While the land in question is of an industrial nature and has been zoned for industrial uses for close to fifty years, the new designations only permit single-family detached dwellings and a minimum lot size of three acres." Id. The Court concluded that "[t]here is nothing in the complaint that would indicate any possible motivation for the enactment of the Ordinance other than a desire to prevent appellants from continuing to operate and expand their extraction business." Id. This type of "animus is not a legitimate reason for enacting a zoning ordinance, see Brady v. Town of Colchester, 863 F.2d 205, 216 (2d Cir. 1988), and is unrelated to land use planning, see Pace, 808 F.2d at 1035." Id.

The facts alleged in the complaint plausibly show that the actions of the City of DuBois were based on an animus toward Plaintiff, and the patients its clinic intended to serve, rather than concerns about land use planning. In this case, Plaintiff signed a lease at a site on March 31, 2006. Plaintiff claims that the property was zoned as a "Transitional District," which permitted a medical facility to open. In late September or early October of 2006, nearly six months after RHJ signed the lease, the plans to open the clinic became public. Almost immediately, Plaintiff claims they were subjected to a massive wave of negative press coverage. Plaintiff claims, and Defendant disputes, that the mayor of DuBois stated in a radio interview that RHJ would likely not receive approval from the city to open such a facility and compared having a methadone treatment center in the City to "other cities dumping their garbage in DuBois."

Following a City Council meeting on October 9, 2006, on October 19, 2006, the City Council notified Plaintiff that the location was too close to a recreational park — which was in fact a sidewalk — and could not open at that location. Notwithstanding this letter, Plaintiff opened the clinic as planned on October 25, 2006. Defendant filed for an injunction the very next day on Friday, October 27, 2006, arguing that Plaintiff was opening the clinic in violation of § 621. The Court granted the preliminary injunction on Wednesday, November 1, 2006. Plaintiff claims that the Court did not hear oral arguments from both sides before issuing the injunction. Defendant claims arguments were heard. After the parties stipulated that the sidewalk constituted a public park for purposes of § 621, the Court entered a permanent injunction.

On June 16, 2007, the Third Circuit ruled that § 621 violated the ADA and RA. New Directions Treatment Services v. City of Reading, 490 F.3d 293 (3d Cir. 2007). Relying on this opinion, in November of 2007, RHJ filed a motion to dissolve the injunction. The City opposed RHJ's motion, despite the fact that the Third Circuit had recently held the law on which the injunction was based violated the ADA and RA. That month, RHJ discussed with the City of DuBois the possibility of filing a change of use application to locate the clinic in an alternative site. On November 22, 2007, the DuBois City Council proposed an ordinance that prohibited "methadone or drug treatment clinics or centers," and not other types of medical facilities, in the Transition District. RHJ had signed a lease for a property sited in the Transition District. The ordinance also permitted medical facilities "with the exception of methadone treatment facilities and other drug treatment facilities of any kind" in the "Commercial-Highway Zoning District." Methadone clinics could only be opened in an "0-1 Office District." Plaintiff claims that there are no suitable sites for a methadone treatment facility located within the "0-1 Office District." Defendant disputes this assertion, but this issue presents a significant issue of fact that is unclear based on the pleadings. The ordinance was passed on November 27, 2007, and Plaintiff was again prevented from opening the methadone clinic. On March 7, 2008, nearly nine months after New Directions was decided, the Court dissolved the injunction. RHJ terminated its lease in July of 2008.

These alleged facts — which are all-too-common in situations where a municipality uses zoning practices to prevent the opening of a methadone clinic it opposes — suggest that the actions of the City of DuBois were based on an improper animus that was "unrelated to land use planning." Pace, 808 F.2d at 1035. "This case presents the familiar conflict between the legal principle of non-discrimination and the political principle of not-in-my-backyard." New Direction Treatment Services v. City of Reading, 490 F.3d 293, 296 (3rd Cir. 2007) (Smith, J.). If the City of DuBois were to have merely enforced § 621, and subsequently agreed to dissolve the injunction following New Directions, the City could claim to be simply adhering to § 621. This was not the case. When RHJ moved to dissolve the injunction, which was premised on an invalid statute, the City actively opposed the motion. This fact suggests that DuBois wanted to prevent the clinic from opening, notwithstanding the validity of the law. With lightning speed after RHJ moved to dissolve the injunction, the City enacted a new ordinance that was much like § 621. The purpose of this statute, it would seem, was to single out methadone clinics from other medical facilities, and greatly restrict where they could be located. Taking all of these allegations, the Court finds that Plaintiff states a plausible claim for a substantive due process violations. While Plaintiff's claim "may be ultimately unsuccessful if the [City] is able to demonstrate a legitimate reason" for its actions, there is no basis for a dismissal on the pleadings. See County Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 170 (3rd Cir. 2006).

See e.g, A Helping Hand, LLC v. Baltimore County, MD, 355 Fed.Appx. 773 (4th Cir. 2009) ("Despite significant opposition from the local community, the Clinic, a for-profit methadone clinic, opened at its current site. . . . At that time, in response to the public mood, the County enacted an ordinance restricting the location of all `state-licensed medical clinics,' including the Clinic.); MX Group, Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002) ("After the zoning permit [for the methadone clinic] was issued, town residents expressed their displeasure regarding the proposed clinic at a City Commission meeting. The Board adopted [an amendment] . . . that completely foreclosed Plaintiff's opportunity to locate [a methadone clinic anywhere] in the city."); Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725, 727-729 (9th Cir. 1999) ("In 1998, Bay Area Addiction Research and Treatment, Inc . . . tried to relocate their methadone clinic to the City of Antioch, California . . . Antioch residents had learned of BAART's plans for the Sunset Lane site and began to express their concern that the methadone clinic would result in an increase in crime. . . . On June 9, 1998, the city council approved . . . another urgency ordinance . . . [that] amended the first ordinance so as to prohibit only methadone clinics from operating within 500 feet of any residential property.").

c. Equal Protection

Defendant claims that Plaintiff failed to state a claim for an equal protection violation. "Unlike a substantive due process challenge, where the question is whether it was irrational for a [municipality] to have passed a zoning law at all, in an equal protection challenge the question is whether `the [City] has irrationally distinguished between similarly situated classes." County Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 171 (3rd Cir. 2006) quoting Rogin v. Bensalem Twp., 616 F.2d 680, 689 (3d Cir. 1980). Traditionally, the equal protection analysis was two-fold. First, the Court must inquire "whether the complaining party is similarly situated to other uses that are either permitted as of right, or by special permit, in a certain zone." Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 137 (3d Cir. 2002). If "the entities are similarly situated, then the [City] must justify its different treatment of the two," id., by demonstrating that the ordinance is rationally related to a legitimate government purpose. Rogin, 616 F.2d at 688.

Following the Supreme Court's 2000 case of Village of Willowbrook v. Olech, 528 U.S. 562 (2000), litigants are presented with an alternative method to state a claim under the equal protection clause of the Fourteenth Amendment for land use and zoning challenges. In Discovery House, the 7th Circuit found that "a[n Olech] `class of one' [claim] is viable under the Equal Protection Clause" for a methadone clinic to challenge the denial of a zoning permit. Discovery House, Inc. v. Consolidated City of Indianapolis, 319 F.3d 277, 282 (7th Cir. 2003) citing Village of Willowbrook v. Olech, 528 U.S. 562 (2000).

Under the class of one approach, a single plaintiff can present himself (or itself in this case) as a class irrespective of innate characteristics. Olech, at 564 ("Historically, equal protection suits required that the plaintiff define a class based on certain inherent conditions, such as race, nationality, or gender. Under the class of one approach, a single person can present himself as a class irrespective of these characteristics.") Now, classes can be broadly defined. After Olech, a circuit split emerged as to whether a plaintiff needs to show malice, in addition to the factors the Supreme Court identified, in order to establish a claim under Olech. In the Third Circuit, no malice finding is required, and "under . . . [ Olech], a plaintiff must allege that (1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment." Hill v. Borough of Kutztown, 455 F.3d 255, 239 (3rd Cir. 2006).

Corporations are considered persons for purposes of the Fourteenth Amendment, and their "rights are protected by 42 U.S.C. § 1983." See Safeguard Mut. Ins. Co. v. Miller, 472 F.2d 732, 733 (3rd Cir. 1973) citing Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).

Compare Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000) (Posner, J.) (requiring that a plaintiff show a "vindictive action" which requires proof of a "totally illegitimate animus") with Costello v. Mitchell Pub. Sch. Dist. 79, 266 F.3d 916, 921-22 (8th Cir. 2001) (malice not required element to state a claim under Olech). In the Third Circuit, malice is not a necessary element to state a claim under Olech. Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3rd Cir. 2006).

While the Supreme Court rejected the application of the class of one claim in public employment decisions, see Engquist v. Oregon Dept. of Agriculture, 128 S.Ct. 2146 (2008), its vitality remains in zoning and land use planning challenges, as Chief Justice Roberts went to great lengths to distinguish the case where the government acts as employer and employs a worker, as opposed to where the government acts as a sovereign and creates zoning and land use planning rules. See id. at 2151 ("[o]ur traditional view of the core concern of the Equal Protection Clause as a shield against arbitrary classifications, combined with unique considerations applicable when the government acts as employer as opposed to sovereign, lead us to conclude that the class-of one theory of equal protection does not apply in the public employment context.") (emphasis added).

Considering Olech, Plaintiff states a plausible claim under the equal protection clause. Plaintiff's complaint states "DuBois applied a different standard to RHJ than other medical facilities." (Compl. ¶ 42.) (emphasis added). The class, as stated, was RHJ as a medical facility. Under § 621, methadone clinics were not permitted within 500 feet of a park, while other similar medical facilities were allowed to operate in those areas. Under the new ordinance, methadone clinics were still treated differently, and were not allowed to open in zones where other similar medical facilities were allowed to open. Plaintiff alleges that the City intentionally treated RHJ's medical facility — a methadone clinic that treated recovering opioid addicts — differently from other similarly situated medical facilities. These alleged facts satisfy the first prong of Hill, 455 F.3d 255, 239 (3rd Cir. 2006).

The second element of intent, Hill, at 239, shares much in common with the showing of animus, and is addressed supra in the discussion of substantive due process. The Court's finding that the facts alleged in the complaint plausibly show that the actions of the City of DuBois were based on an animus towards Plaintiff, and the patients its clinic intended to serve, is a sufficient allegation that the actions of the City were intentional.

The third element of Hill, asks whether "there was . . . [a] rational basis for the difference in treatment." Hill, at 239. While traditional forms of rational basis review are quite deferential, in two landmark cases, the Supreme Court has articulated a heightened, more searching form of rational basis review, dubbed by some commentators as "rational basis with bite." Maldonado v. Houston, 157 F.3d 179, 185 n. 7 (3rd Cir. 1998) citing Gayle Lynn Pettinga, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62 IND. L.J. 779, 787-92 (1987).

In City of Cleburne v. Cleburne Living Center, the Court considered the city's denial of a special use permit for the operation of a home for mentally disabled patients. 473 U.S. 432, 435 (1985). Although this group of patients was not a suspect class, the Cleburne Court actively scrutinized the City's proffered reason for treating the home differently than other similarly situated institutions within the zoned area. Id. at 458 (Marshall, J., concurring in part and dissenting in part). After engaging in a "searching inquiry" into the reasons why the City denied the permit — notwithstanding the fact that rational basis review applied — the Court found that the City lacked a rational basis, and its actions were based on "irrational prejudice against the mentally retarded." Id. at 459-60 (Marshall, J., concurring in part and dissenting in part).

In Romer v. Evans, the Court applied a similar form of heightened rational basis scrutiny. Romer v. Evans, 517 U.S. 620 (1996). In this case, Colorado passed an amendment to its constitution that prevented government action to protect gays and lesbians against discrimination. Id. at 635-636. Despite the fact that sexual orientation is traditionally considered a non-suspect class, the Court engaged in heightened scrutiny, observing that "`[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.'" Id. at 633 quoting Louisville Gas Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928). Because the amendment focused solely on gays and lesbians, the Court discerned an "inevitable inference" that the law was motivated by an impermissible animus, and the amendment was struck for violating the equal protection clause. Romer, at 634.

Contra Perry v. Schwarzenegger, No 09-2292 p. 122 (N.D.Cal. August 4, 2010) ("The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.").

In Cleburne and Romer, when the government discriminated against "discrete and insular minorities," United States v. Carolene Products Co., 304 U.S. 144, 152-53 n. 4, (1938), those without access to the political process, JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 77-78 (1980), the Court employed a more thorough version of rational basis review that inquired into the government's motivation and animus. It is worthwhile to reflect on the alleged victims of the City's actions in this case — the prospective patients of the clinic that could never open. Accepting "all of the complaint's well-pleaded facts as true," Fowler, at 210, these patients are recovering opioid addicts who are attempting to get clean, and are unable to avail themselves of the proposed methadone clinic as a result of the City using zoning laws to treat methadone clinics differently than other medical facilities. RHJ alleges that the City, including the Mayor, was hostile and antagonistic to the clinic, and took numerous steps to prevent the clinic from opening. While the Court does not opine about the appropriate standard, the question remains whether they would qualify as "discrete and insular." Considering all of these facts, the Court finds that Plaintiff states a plausible claim for an equal protection violation.

IX. More Definite Statement

Finally, Defendant filed a motion for a more definite statement under FED. R. CIV. P. 12(e), alleging that "Counts I and IV are littered with conclusory allegations and conflated causes of action." The Court finds that the Plaintiff's claims under the Fourteenth Amendment were clearly separated into claims based on Due Process and Equal Protection. The Court also finds that Plaintiff distinguished between facial and as-applied challenges.

Judging by the length and specificity of this memorandum, it seems fairly obvious to the Court that the complaint was sufficiently definite. This claim fails.

And now, this 6th day of December, 2010, the Court DENIES Defendant's Motion for Judgment on the Pleadings and Motion for a More Definite Statement (Document No. 25).