Jimmy Dan Kilgore v. City of Rainesville, AL , 385 F. App'x 952 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15355 ELEVENTH CIRCUIT
JULY 7, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-02213-CV-1-KOB
JIMMY DAN KILGORE,
Plaintiff-Appellant,
versus
CITY OF RAINSVILLE, ALABAMA,
a municipality,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 7, 2010)
Before EDMONDSON, BIRCH and KRAVITCH, Circuit Judges.
PER CURIAM:
Jimmy Dan Kilgore appeals from the district court’s grant of summary
judgment on his claim that the City of Rainsville violated his constitutional rights
by denying him a permit to place a billboard on his land. We affirm.
I. Background
Kilgore owns property on the southwest corner of the intersection of State
Highways 35 and 75 in the City of Rainsville, Alabama. In 2002, the City changed
its billboard-permitting rules to include the following requirements:
Signs Requiring a Permit. The following signs shall be permitted . . .
(c) Billboards. This term[] shall mean a free-standing off-site
outdoor advertising sign that contains not less than 200 square
feet per side.
All Billboards shall be subject to the following
limitations:
(1) Billboards shall be allowed only along
Highways 75 and 35, but none shall be allowed
within 2000 feet of the intersection of these
highways.
(2) Billboards shall be a minimum of 1500 feet
apart.
(3) Billboards shall have a maximum size of 600
square feet per side.
(4) Billboards to have a maximum height of 60
feet from grade level.
Rainsville, Ala. Rev. Ordinance, § 5-6-3 (2002).
In 2004, Kilgore decided to erect a billboard on his property to sell
advertising space to other businesses. Initially, he intended to place a traditional
vinyl billboard on his land. Kilgore claims that he appeared before the City
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Council in January 2005 to apply for a permit; the City, however, has no record of
this appearance. In April 2005, the Rainsville City Attorney, Terry Gillis, wrote a
letter to the City stating that Kilgore’s sign was not allowed because, among other
things, his billboard was within 2000 feet of the intersection of State Highways 35
and 75.1
Later in 2005, Kilgore changed his mind and decided to erect a three-sided
digital LED Electronic Variable Message Center on his land. Kilgore appeared
before the City Council numerous times requesting a permit for this new billboard.
The City, however, denied his requests because the proposed billboard was within
2000 feet of the intersection of Highways 75 and 35.
Kilgore brought this action in 2007. In Counts I and III, he sought
declaratory and injunctive relief for violations of the U.S. Constitution. He
claimed that the City ordinance violated his First Amendment rights because it (1)
discriminated based on the category and manner of speech; (2) contained no
objective standards and did not provide any time limit by which the city must grant
the permit or seek judicial review; (3) was overbroad because of the lack of
precision in the language of the ordinance and therefore would result in more
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The record also shows that the vinyl billboard was 72 square feet larger than the 600-
square-foot-per-side maximum set forth in § 5-6-3(c)(3). Additionally, the billboard was 1003
feet from the nearest existing billboard, a violation of Section 5-6-3(c)(2)’s prohibition of signs
fewer than 1500 feet apart.
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speech being restricted than is necessary. He also claimed that the ordinance
violated his Fourteenth Amendment rights by (1) denying his right to equal
protection by discriminating between his sign and other signs based on content and
(2) depriving him of his procedural due process rights. Finally, in Count II, he
alleges that the City had violated his rights under the Alabama Constitution.
The magistrate judge set September 2008 as a deadline for amendments to
the pleadings. In January 2009, Kilgore sought to amend his complaint because
new evidence had come to light after discovery. The court ultimately granted this
motion, allowing Kilgore to amend his complaint in light of new information.
Instead of filing the amended complaint attached to his motion for leave to
amend, however, Kilgore filed a new complaint adding a claim for monetary
damages. The magistrate judge struck this complaint because Kilgore could have
added a claim for monetary damages before the deadline and gave Kilgore 14 days
to file an amended complaint, “adding only those items previously allowed by the
court due to the uncovering of new information during the discovery process.”
Kilgore never filed this amended complaint, so the magistrate judge
reinstated his original complaint. Kilgore filed a motion for reconsideration,
asserting that he never received the court’s earlier order directing him to refile the
approved complaint. The magistrate judge denied this motion, and Kilgore did not
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appeal this decision to the district court.
Soon afterward, the City repealed the old ordinance and passed a new
ordinance regulating the erection and maintenance of signs. The new ordinance
provided far greater procedural specificity, outlining what types of signs required
permits and establishing a procedure for obtaining a permit from the City’s
Administrative Officer. The new ordinance did not, however, alter the preexisting
size and proximity restrictions or remove the prohibitions on billboards within
2000 feet of the intersection of 75 and 35.
After adopting the new ordinance, the City filed a supplemental motion for
summary judgment. The magistrate judge recommended that the City’s
supplemental motion for summary judgment be granted on the grounds that the
passage of the new ordinance mooted Kilgore’s procedural due process claims and
that there was no First Amendment violation because both the old and new
ordinances were content-neutral.2 The district court adopted these
recommendations and Kilgore appeals.
II. Discussion
We review a grant of summary judgment de novo. Shuford v. Fid. Nat’l
2
It also recommended that the district court dismiss Kilgore’s claim under the Alabama
Constitution without prejudice.
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Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007). Summary judgment
is appropriate “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
A. Procedural due-process claims
The district court held that Kilgore’s procedural due-process claims were
moot because the City passed a new ordinance during the litigation. “[M]ootness
is jurisdictional. Any decision on the merits of a moot case or issue would be an
impermissible advisory opinion.” Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th
Cir. 2001) (internal quotation marks and citations omitted). “When a party
challenges a law as unconstitutional and seeks only declaratory and prospective
injunctive relief, a superseding statute or regulation moots a case to the extent that
it removes challenged features of the prior law.” Crown Media, LLC v. Gwinnett
County, 380 F.3d 1317, 1324 (11th Cir. 2004).
First, Kilgore argues that his procedural due-process claims are not moot
because he sought monetary damages in his original complaint. See McKinnon v.
Talladega Co., 745 F.2d 1360, 1362 (11th Cir. 1984) (holding that the voluntary
cessation of alleged illegality does not moot a monetary claim because “a claim for
damages does not expire upon the termination of wrongful conduct.”). This
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argument is without merit. The two counts relevant to this appeal are titled “Count
I—Action for Declaratory Relief” and “Count III—Action for Preliminary and
Permanent Injunctive Relief” and the prayers for relief in both counts solely
mention equitable relief. Thus, Kilgore did not make a “short and plain statement”
of any claim for monetary damages on the face of his original complaint. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007).
Second, Kilgore contends that his procedural due-process claims are not
moot because the magistrate judge improperly denied him the ability to add a claim
for monetary damages in his amended complaint. Kilgore, however, has waived
his right to appeal this magistrate judge’s order because he did not file a specific
written objection to this order to the district court. See Farrow v. West, 320 F.3d
1235, 1249 n. 21 (11th Cir. 2003) (“A party failing to appeal a magistrate judge’s
order in a nondispositive matter to the district court may not raise an objection to it
on appeal to a circuit court.”). Kilgore argues that he preserved this matter for
appeal by objecting to the magistrate judge’s final recommendation. Objecting to
the recommendation, however, did not preserve for appeal a magistrate judge’s
decision on an unrelated, non-dispositive matter. See Fed. R. Civ. P. 72(a). He
also argues that his motion for reconsideration before the magistrate judge
preserved this issue for appeal. This argument also fails because a litigant is
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required to file a specific objection with the district court to preserve an issue for
appellate review. Id
Third, Kilgore claims that his due-process claims fall into one of the two
exceptions to the mootness doctrine. Kilgore first argues that his procedural due
process claims are not moot because the changes to the ordinance were only
cosmetic, thus suggesting that the City enacted the new ordinance to deprive the
court of jurisdiction. See Nat’l Adver. Co. v. City of Miami, 402 F.3d 1329, 1333
(11th Cir. 2005). The new ordinance, however, makes significant changes to the
process of applying for a permit. Furthermore, there is no evidence that the City
acted to defeat Kilgore’s litigation or intends to repeal the new ordinance after this
litigation concludes.
Kilgore also argues that his procedural due-process claims are an exception
to the mootness doctrine because he has a vested property right that is “an
enforceable entitlement to a permit or a sign unaffected by subsequent changes in
sign ordinances.” Crown Media, LLC v. Gwinnett County, 380 F.3d 1317, 1325
(11th Cir. 2004). There is no record, however, that Kilgore ever had an
enforceable entitlement to a permit. Although he appeared in front of the City
Council, the record does not show that he ever formally applied for a permit or
paid a filing fee to obtain a permit for his billboard. Thus, he does not have a
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property right that has vested and his claim does not fall into this exception to the
mootness doctrine. Cf. Horn v. Ala. Bd. of Examiners in Counseling, 437 So. 2d
1047 (Ala. Civ. App. 2000) (holding that denial of a license did not create a vested
property right).
B. First Amendment claims
The district court also held that the old ordinance did not violate Kilgore’s
First Amendment rights. “In evaluating the constitutionality of an ordinance
restraining or regulating speech, we first inquire whether the Ordinance is
content-neutral.” Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1258
(11th Cir. 2005). If so, the regulation is subject to intermediate scrutiny and
therefore “must not restrict speech substantially more than necessary to further a
legitimate government interest, and it must leave open adequate alternative
channels of communication.” Id.
Kilgore does not dispute that the ordinance is a content-neutral time
regulation or that it leaves open adequate alternative channels of communication.
Instead, he argues that the ordinance does not serve the City’s legitimate interests
in aesthetics and public safety. He claims that billboards like his do not endanger
public safety because traffic is either stopped or proceeds slowly at the intersection
of the highways. This argument is meritless: distractions at intersections are
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dangerous for many reasons and the City may regulate its signs on that basis.
Regulations concerning the size, location, and manner of signs thus directly
advance the City’s interests in public safety, including traffic safety. See
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 511 (1981).
Kilgore next argues that the City’s aesthetic interest is not substantial
because the intersection is already clogged with signs. However, even if we
assume that he is correct, the City is justified in regulating his sign for traffic-
safety reasons. Id. (“Municipal authorities, as trustees for the public, have the
duty to keep their communities’ streets open and available for movement of people
and property, the primary purpose to which the streets are dedicated.”).
C. Remaining claims
Finally, Kilgore argues that the district court failed to employ the required de
novo review under 28 U.S.C. § 636(b)(1) when adopting the magistrate judge’s
recommendation. See Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir.
1990) (holding that the district court erred because it applied the clearly erroneous
standard to the magistrate judge’s findings of fact and admitted that it “relied
heavily upon the magistrate’s assessment of the evidence”). In this case, however,
the district court explicitly stated that it had considered the record de novo and
there is no other indication that it did not do so. Thus, Kilgore’s argument fails.
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Kilgore has abandoned his equal-protection and prior-restraint arguments by
not raising them in his brief. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1330 (11th Cir. 1994). Accordingly, the district court’s grant of summary
judgment order is
AFFIRMED.
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