ORDER
HUGH LAWSON, District Judge
Plaintiff CATHERINE ANN HICKLING, an inmate at FCI Tallahassee in Tallahassee, Florida, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.
Plaintiff submits her claims on a § 2241 Habeas Corpus Petition Form. However, she states that she is pursuing a "sexual assault/abuse civil suit" and she seeks damages. Therefore, the Court has construed the action as one brought pursuant to 42 U.S.C. § 1983.
I. REQUEST TO PROCEED IN FORMA PAUPERIS
Plaintiff has not paid the $350.00 filing fee and she has not sought leave to proceed in forma pauperis. Because plaintiff failed to pay the filing fee, the Court assumes that she wishes to proceed without prepayment of the filing fee or security therefor pursuant to 28 U.S.C. § 1915(a). Moreover, plaintiff recently submitted a certified copy of her prisoner trust fund account in Hickling v. Irwin County Detention Ctr., 7:10-CV-70 (HL). Based on the information shown on these documents, the Court finds that plaintiff is unable to pay an initial partial filing fee. Accordingly, it is hereby ORDERED that her complaint be filed and that she be allowed to proceed without paying an initial partial filing fee.
Hereafter, plaintiff will be required to make monthly payments of 20% of the deposits made to her prisoner account during the preceding month toward the full filing fee. The agency having custody of plaintiff shall forward said payments from plaintiff's account to the clerk of the court each time the amount in the account exceeds $10.00 until the filing fees are paid. 28 U.S.C. § 1915(b)(2). The clerk of court is directed to send a copy of this Order to the business manager and the warden of the institution where plaintiff is confined.
II. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915A(a), a federal court is required to conduct an initial screening of a prisoner complaint "which seeks redress from a governmental entity or officer or employee of a governmental entity." Section 1915A(b) requires a federal court to dismiss a prisoner complaint that is: (1) "frivolous, malicious, or fails to state a claim upon which relief may be granted"; or (2) "seeks monetary relief from a defendant who is immune from such relief."
A claim is frivolous when it appears from the face of the complaint that the factual allegations are "clearly baseless" or that the legal theories are "indisputably meritless." Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint fails to state a claim when it does not include "enough factual matter (taken as true)" to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (noting that "[f]actual allegations must be enough to raise a right to relief above the speculative level," and that the complaint "must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action") (internal quotations and citations omitted); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (explaining that "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice").
In making the above determinations, all factual allegations in the complaint must be viewed as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Moreover, "[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
In order to state a claim for relief under § 1983, a plaintiff must allege that: (1) an act or omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under color of state law. Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir. 1995). If a litigant cannot satisfy these requirements, or fails to provide factual allegations in support of his claim or claims, then the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003) (affirming the district court's dismissal of a § 1983 complaint because the plaintiff's factual allegations were insufficient to support the alleged constitutional violation). See also 28 U.S.C. 1915A(b) (dictating that a complaint, or any portion thereof, that does not pass the standard in § 1915A "shall" be dismissed on preliminary review).
III. STATEMENT AND ANALYSIS OF PLAINTIFF'S CLAIMS
Plaintiff alleges that while she was incarcerated at the Irwin County Detention Center in Ocilla, Georgia she "was approached with sexual advances, conversations that eventually led [to] the Officer touching [her] breasts." Plaintiff seeks compensation.
Plaintiff has named only one defendant: the Irwin County Detention Center. The Irwin County Detention Center is not a legal entity that is subject to suit. Pursuant to Fed.R.Civ.P. 17(b), the "capacity to sue or be sued" is determined "by the law of the state where the court is located." Therefore, Georgia law controls this issue. The Georgia Supreme Court has explained that there are only three classes of legal entities: "(1) natural persons; (2) an artificial person (a corporation); and (3) such quasi-artificial person as the law recognizes as being capable to sue." Georgia Insurers Insolvency Pool v. Elbert County, 258 Ga. 317, 318 (Ga. 1988). A county detention facility does not fit within either of these categories and is, therefore, simply not a legal entity subject to suit or liability under 42 U.S.C. § 1983. See generally Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (advising that "sheriff's departments and police departments are not usually considered legal entities subject to suit. . . .").
Additionally, this action contains the same allegation that plaintiff made in Hickling v. Webb, 7:10-CV-70 (HL). Plaintiff filed that case on July 26, 2010 and named the Irwin County Detention Center and Officer Webb as defendants. In an Order and Recommendation dated August 16, 2010, the United States Magistrate Judge recommended that the Irwin County Detention Center be dismissed from the action. That Order and Recommendation was approved, adopted, and made the Order of the Court on September 10, 2010. Therefore, the issue of the Irwin County Detention Center's liability has already been decided adversely to plaintiff. As this action is currently going forward against Officer Webb in Hickling v. Webb, 7:10-CV-70 (HL), plaintiff cannot pursue the same claim in a second 42 U.S.C. § 1983 action.
Based on these findings, plaintiff's 42 U.S.C. § 1983 action must be DISMISSED as frivolous pursuant to 28 U.S.C. § 1915A.
SO ORDERED.
On appeal, the
M Restaurants court considered whether injunctive relief could be sustained under the newly enacted Moscone Act. On the subject of equal protection, the court stated that "the statute bears a rational relationship to its purpose . . ." (
M Restaurants, supra, 124 Cal.App.3d at p. 677), but the court did not discuss whether the statute treats speech related to labor disputes differently from speech relating to other issues. After finding no constitutional problems with the Moscone Act, the court nevertheless concluded that the picketers' conduct was unlawful and the Moscone Act did not prevent the trial court from exercising its equity jurisdiction to enjoin the unlawful conduct. (
M Restaurants, at pp. 685-686.) Therefore, the court's discussion of the constitutionality of the Moscone Act was unnecessary to the decision. (
Santisas v. Goodin (1998)
17 Cal.4th 599, 620 [
71 Cal.Rptr.2d 830,
951 P.2d 399] [decisions authority only for points actually involved and decided].)
Accordingly, M Restaurants is unpersuasive.
The District of Columbia Circuit of the United States Court of Appeals determined that the Moscone Act, as interpreted by the California Supreme Court in Sears II, violates the First Amendment because it discriminates based on the content of the speech. ( Waremart II, supra, 354 F.3d at p. 875.) The District of Columbia Circuit relied on Mosley and Carey in making this determination. To avoid content discrimination and render the statute constitutionally valid, the District of Columbia Circuit concluded that "under California law labor organizing activities may be conducted on private property only to the extent that California permits other expressive activity to be conducted on private property." ( Waremart II, supra, at p. 875.)
Although decisions of the federal circuit courts are not binding on us, the reasoning and logic of Waremart II are persuasive. ( Barrett v. Rosenthal (2006) 40 Cal.4th 33, 58 [ 51 Cal.Rptr.3d 55, 146 P.3d 510] [decisions of lower federal courts not binding but may be persuasive].)
Therefore, as did Waremart II, we conclude that the Moscone Act violates the First and Fourteenth Amendments as applied to the circumstances of this case because it favors speech related to a labor dispute over speech related to other issues. To render it constitutional, the Moscone Act must be read to allow speech, in a private forum, related to a labor dispute only to the extent that speech related to other issues is allowed. Because the Union's agents were trespassing in this case, the Moscone Act cannot be construed to prohibit the courts from exercising their equity jurisdiction as they would in a case not involving a labor dispute.
B. Labor Code Section 1138.1
Labor Code section 1138.1 suffers from the same constitutional defect as the Moscone Act — it favors speech relating to labor disputes over speech relating to other matters. It adds requirements for obtaining an injunction against labor protesters that do not exist when the protest, or other form of speech, is not labor related.
"An injunction is an appropriate remedy for a continuing trespass. [Citation.]" Mired, supra, 14 Cal.App.4th at p. 1390, fn. omitted.) "To obtain a preliminary injunction, the plaintiff must establish the defendants should be restrained from the challenged activity pending trial. [Citations.] The plaintiff must show (1) a reasonable probability it will prevail on the merits and (2) that the harm to the plaintiff resulting from a refusal to grant the preliminary injunction outweighs the harm to the defendant from imposing the injunction. [Citation.]" ( Bank of Stockton v. Church of Soldiers (1996) 44 Cal.App.4th 1623, 1625-1626 [ 42 Cal.Rptr.2d 429, 52 Cal.Rptr.2d 429].) "[l]n order to obtain injunctive relief the plaintiff must ordinarily show that the defendant's wrongful acts threaten to cause irreparable injuries, ones that cannot be adequately compensated in damages. [Citation.] Even in an action for trespass to real property, in which damage to the property is not an element of the cause of action, `the extraordinary remedy of injunction' cannot be invoked without showing the likelihood of irreparable harm. [Citations.]" ( Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352 [ 1 Cal.Rptr.3d 32, 71 P.3d 296], italics omitted.)
While some of the requirements of Labor Code section 1138.1 for obtaining injunctive relief in a labor dispute are the same as the requirements when there is no labor dispute involved, other requirements of Labor Code section 1138.1 are unique to labor disputes. For example, to obtain an injunction against trespass in a labor dispute, the property owner or possessor must show that (1) unlawful acts have been threatened and will be committed (Lab. Code, § 1138.1, subd. (a)(1)), (2) substantial and irreparable injury to the property will follow (Lab. Code, § 1138.1, subd. (a)(2)), and (3) public officers will not or cannot intercede (Lab. Code, § 1138.1, subd. (a)(5)). On the other hand, when no labor dispute is involved, (1) the trespass itself, without a further unlawful act, justifies an injunction ( Mired, supra, 14 Cal.App.4th at p. 1390 [in]unction available against trespass]; but see Waremart I, supra, 87 Cal.App.4th at p. 158 [peaceful picketing not unlawful act under statute]); (2) any irreparable harm, not necessarily to the property, supports injunctive relief ( Uptown Enterprises v. Strand (1961) 195 Cal.App.2d 45, 52 [ 15 Cal.Rptr. 486] [injury to reputation and business interest suffices]); and (3) the inability or unwillingness of public officers to provide adequate protection is not an element of trespass or a requirement of injunctive relief.
Therefore, when a property owner seeks injunctive relief against a trespass by labor protesters, that owner cannot protect its ownership interest (or a tenant, its possessory interest) to prevent a trespass without overcoming difficult obstacles not applicable to injunctive relief against trespassers not engaged in a labor dispute. Those additional obstacles include showing an unlawful act other than the trespass, irreparable harm to the property itself, and inability or unwillingness of public officers to provide protection. Based on the content of the speech of the protester, an injunction against trespass in a labor dispute is much more difficult to obtain than an injunction against trespass under any other circumstances.
As we explained with respect to the Moscone Act, the strict scrutiny test applies to differential treatment of speech based on its content. ( Fashion Valley, supra, 42 Cal.4th at p. 865; Consolidated Edison Co. v. Public Serv. Comm'n, supra, 447 U.S. at p. 541.) As in the case of the Moscone Act, there is no compelling state interest justifying this differential treatment. (See Carey, supra, 447 U.S. at pp. 464-467.) Therefore, as applied to the circumstances of this case, Labor Code section 1138.1 violates the First and Fourteenth Amendments of the United States Constitution.
We recognize that we reached a contrary result in Waremart I, supra, 87 Cal.App.4th 145. In that case, we stated that Labor Code section 1138.1 passes constitutional muster under the rational relationship test. But we applied the rational relationship test because the plaintiff made no argument and presented no authority to apply the strict scrutiny test. ( Waremart I, supra, at p. 158.)
We also stated that Labor Code section 1138.1 does not limit the content of speech but is, instead, merely "a rule of procedure . . . and does not address speech." ( Waremart I, supra, 87 Cal.App.4th at p. 158.) This observation, however, did not consider the effect of the rule of procedure. Just like a poll tax designed to prevent certain groups from voting (see Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663 [ 16 L.Ed.2d 169, 86 S.Ct. 1079] [state's poll tax violates equal protection clause]), Labor Code section 1138.1 is not just a procedural prerequisite — it is an impediment designed to prevent an owner or possessor of real property from obtaining an injunction in a labor dispute, even though injunctive relief would otherwise be available.
Labor Code section 1138.1 is more than just a rule of procedure. In effect, it differentiates speech based on its content and imposes prerequisites that make it virtually impossible for a property owner to obtain injunctive relief. The statute thereby forces the private property owner to provide a forum for speech with which the owner disagrees and it bases that compulsion on the content of the speech. (See Hurley, supra, 515 U.S. at pp. 575-576; Pacific Gas Elee. Co. v. Public Util. Comm'n, supra, 475 U.S. at p. 16.)
The Union cites several cases in an attempt to establish that Labor Code section 1138.1 does not violate the First and Fourteenth Amendments because it restricts judicial remedies limiting speech instead of limiting speech itself. This is a distinction without a difference. And the cases cited by the Union do not support its argument.
For example, the most recent case cited by the Union, Ysursa v. Pocatello Ed. Assn. (2009) 555 U.S. ___ [ 172 L.Ed.2d 770, 129 S.Ct. 1093] ( Ysursa), is inapposite. In that case, a state law prohibited use of union dues for political speech if the dues were deducted from a state employee's wages. The unions sued, asserting that the ban on payroll deductions for political activities was a restriction on speech based on its content, violating the First and Fourteenth Amendments. The United States Supreme Court disagreed. It held that, although content-based restrictions "are `presumptively invalid' and subject to strict scrutiny" ( Ysursa, supra, at p. ___ [ 172 L.Ed.2d at p. 777]), this was not a content-based restriction because the state was not obligated to provide payroll deductions at all, and the law did not abridge the union's freedom of speech — "they are free to engage in such speech as they see fit." ( Id. at pp. ___ [ 172 L.Ed.2d at pp. ___-___ 777-778].) Here, on the other hand, the government is effectively forcing Ralphs to provide a forum for speech with which it disagrees by withholding the only real peaceful remedy for excluding the Union from using Ralphs's private property for the Union's speech. Unlike the situation in Ysursa, Labor Code section 1138.1 abridges Ralphs's free speech rights by forcing it to host or accommodate speech with which it disagrees.
Under the circumstances of this case, Labor Code section 1138.1 violates the First and Fourteenth Amendments of the United States Constitution.
The Union asserts that, if we find that Labor Code section 1138.1 violates the United States Constitution by favoring speech related to labor, we should apply the statute to all speech-related cases, regardless of the content. We conclude that the statute may not be extended to apply to all cases because the Legislature did not intend such a drastic invasion of property rights.
"When a statute's differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class. A court generally makes that determination by considering whether extending the benefit equally to both classes, or instead withholding it equally, would be most consistent with the likely intent of the Legislature, had that body recognized that unequal treatment was constitutionally impermissible. [Citations.]" ( In re Marriage Cases (2008) 43 Cal.4th 757, 856 [ 76 Cal.Rptr.3d 683, 183 P.3d 384].) In the case cited, the California Supreme Court opted to extend marriage to same-sex couples rather than withholding marriage from everyone. ( Ibid.)
Here, there is nothing to indicate that the Legislature desired to override dozens of cases involving whether a forum is public or private and, in one fell swoop, force property owners and possessors to allow all forms of peaceful speech in a private forum by withholding the remedy of injunction. The Union simplistically suggests that doing so would be "consistent with the goals of [Labor Code section 1138.1]." While that may be true if one considers only the stated goal of promoting speech relating to labor disputes, it does not mean that the Legislature also had an unstated goal of promoting all forms of speech in a private forum. It is apparent from the very limited nature of the statute, applying only to labor disputes, that the Legislature did not intend to drastically change the law concerning speech in a private forum. Therefore, the proper remedy is simply to invalidate the statute.
III Injunctive Relief
The Union contends that, even if we conclude that the Moscone Act and Labor Code section 1138.1 cannot be applied to this case, we should still affirm the trial court's judgment because the court made findings that would result in denial of the preliminary injunction even without applying the Moscone Act and Labor Code section 1138.1. The Union asserts that (1) there was no unlawful act, (2) there was no irreparable harm; and (3) Ralphs failed to carry its burden of showing that its rules on expressive activities were reasonable time, place, and manner restrictions under Fashion Valley. While the trial court made these findings, they do not support the Union's argument because (1) there is no requirement that an unlawful act beyond the trespass be committed, (2) a continuing trespass under these circumstances constitutes irreparable harm as a matter of law for which damages are not adequate, and (3) time, place, and manner restrictions under Fashion Valley do not apply to a private forum.
A continuing trespass is, for purposes of injunctive relief, an unlawful act. Apart from the additional requirement of Labor Code section 1138.1, which we hold cannot be applied here, a party seeking an injunction need not establish an unlawful act beyond the trespass. (See Allred, supra, 14 Cal.App.4th at p. 1390 [injunction appropriate remedy for continuing trespass].)
And the continuing trespass itself also causes irreparable harm. "`[T]he extraordinary remedy of injunction' cannot be invoked without showing the likelihood of irreparable harm. [Citations.]" ( Intel Corp. v. Hamidi, supra, 30 Cal.4th at p. 1352.) "Injunction is a proper remedy against threatened repeated acts of trespass [citations], particularly where the probable injury resulting therefrom will be `beyond any method of pecuniary estimation,' and for this reason irreparable. [Citation.]" ( Uptown Enterprises v. Strand, supra, 195 Cal.App.2d at p. 52.) When a trespasser engages in activities to discourage the public from patronizing a business, the effect of the activity cannot be quantified because there is no way of knowing who would have patronized the business but for the trespasser's activities. Therefore, the unquantifiable loss of business caused by the Union's activities on Ralphs's property constitutes irreparable harm here, as a matter of law.
The trial court's contrary ruling may be attributed to Labor Code section 1138.1's requirement of "substantial and irreparable injury to complainant's property" (Lab. Code, § 1138.1, subd. (a)(2)), which is a different standard from the standard for obtaining an injunction generally. The standard for obtaining an injunction generally does not require a showing that the likely injury will be to the property itself. Therefore, the trial court's finding, applying Labor Code section 1138.1, is not binding, and the showing was sufficient to establish a likelihood of irreparable harm.
Finally, as noted above, the reasonableness of time, place, and manner restrictions is irrelevant unless the property is a public forum under Pruneyard and its progeny or other state or federal constitutional precedent. The area at issue in this litigation is not a public forum, so the Union's argument fails.
Because Ralphs made an unrebutted showing of a continuing trespass on the part of the Union, Ralphs established a reasonable probability it will prevail on the merits and the harm resulting from a refusal to grant the preliminary injunction outweighs the harm to the Union. (See Bank of Stockton v. Church of Soldiers, supra, 44 Cal.App.4th at p. 1626 [requirements for preliminary injunction against trespass].) Ralphs is therefore entitled to a preliminary injunction.
DISPOSITION
The order denying a preliminary injunction is reversed and remanded with instructions to grant the preliminary injunction. Ralphs is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
Raye, J., and Robie, J., concurred.