Case 2:11-cv-00646-FJM Document 5 Filed 04/08/11 Page 1 of 4

1 WO
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6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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9 Michael Salman and Suzanne Salman, ) No. CV-11-646-PHX-FJM
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10 Plaintiffs, ) ORDER
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11 vs. )
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12 City of Phoenix, et al., )
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13 Defendants. )
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14 )
15 We have before us plaintiffs’ motion for a temporary restraining order (doc. 2) and
16 memorandum in support (doc. 3). Plaintiffs seek to enjoin defendants from enforcing codes
17 and ordinances “against plaintiffs to prohibit private worship, bible studies and the placement
18 of reader board with religious messages at the residence and from prosecuting, sentencing,
19 arresting or incarcerating plaintiffs.” Motion at 4.
20 We first note that plaintiff’s motion violates LRCiv 7.2(e), limiting all motions,
21 including supporting memoranda, to seventeen pages. In addition, plaintiffs’ seventy page
22 complaint violates Rule 8(a), Fed. R. Civ. P., which restricts plaintiffs’ pleading to a “short
23 and plain statement of the claim showing that the pleader is entitled to relief.”
24 Plaintiffs allege that on September 27, 2010, plaintiff Michael Salman was sentenced
25 by the Municipal Court of the City of Phoenix to serve sixty days in jail for using his property
26 as a church. His appeal of the conviction is currently pending. On January 20, 2011,
27 plaintiff Suzanna Salman was charged with violating city ordinances for displaying biblical
28 scripture on a reader board in front of plaintiffs’ residence. On March 21, 2011, pursuant to
 Case 2:11-cv-00646-FJM Document 5 Filed 04/08/11 Page 2 of 4

1 a warrant, police entered plaintiffs’ residence, after which plaintiff Michael Salman was
2 charged with seven building code violations. Plaintiffs allege that defendants’ enforcement
3 of its codes violates plaintiffs’ rights under the Religious Land Use and Institutionalized
4 Persons Act, 42 U.S.C. § 2000cc, et seq., the First, Fourth, and Fourteenth Amendments of
5 the United States Constitution, Article 2, Sections 4, 5, and 6 of the Arizona Constitution,
6 and the Arizona Free Exercise of Religion Act, A.R.S. § 41-1493 et seq. Plaintiffs further
7 claim that the City of Phoenix Sign Ordinance and Assembly Ordinance and Codes are
8 unconstitutionally vague. Plaintiffs ask us to enjoin the pending state criminal proceedings
9 against them.
10 To obtain a temporary restraining order, plaintiffs must show: (1) a likelihood of
11 success on the merits; (2) a likelihood of irreparable harm if defendants are not enjoined; (3)
12 that the balance of equities tips in their favor; and (4) that a restraining order is in the public
13 interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, ___, 129 S. Ct. 365, 374
14 (2008).
15 I
16 Plaintiffs’ likelihood of success on the merits is quite low. We are very likely to
17 dismiss this action on abstention grounds. Under principles of comity and federalism, the
18 availability of injunctive relief against state criminal proceedings is very narrow. Younger
19 v. Harris, 401 U.S. 37, 53, 91 S.Ct. 746, 755 (1971). We do not “restrain a criminal
20 prosecution, when the moving party has an adequate remedy at law and will not suffer
21 irreparable injury if denied equitable relief.” Id., 401 at 43–44, 91 S.Ct. at 750. The alleged
22 injury must go beyond that which is “incidental to every criminal proceeding brought
23 lawfully and in good faith,” and the possible unconstitutionality of a statute on its face does
24 not in itself justify an injunction against good-faith attempts to enforce it. Younger, 407 U.S.
25 at 49, 56, 46 S.Ct. at 754, 755. “The accused should first set up and rely upon his defense
26 in the state courts, even though this involves a challenge of the validity of some statute,
27 unless it plainly appears that this course would not afford adequate protection.” Fenner v.
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1 Boykin, 271 U.S. 240, 244, 46 S.Ct. 492, 493 (1926).

2 We abstain pursuant to Younger if three criteria are met: “(1) state judicial
3 proceedings must be ongoing; (2) the state proceedings must implicate an important state
4 interest; and (3) the state proceedings must offer an adequate opportunity to litigate federal
5 constitutional issues.” Fort Belknap Indian Community v. Mazurek, 43 F.3d 428, 431 (9th
6 Cir. 1994).
7 These three requirements seem to be present in this action. First, state judicial
8 proceedings are ongoing. At the time plaintiffs filed their federal complaint, they were
9 subject to pending criminal proceedings in state court. See Dubinka v. Judges of Superior
10 Court, 23 F.3d 218, 223 (9th Cir. 1994). Plaintiffs allege that Michael Salman’s conviction
11 is on appeal and that he has been charged but not yet convicted for violating seven building
12 codes. Complaint at 2. Plaintiff Suzanne Salman has been charged but apparently not yet
13 convicted for violating city zoning ordinances. Id. Second, the criminal proceedings
14 implicate an important state interest. Plaintiffs challenge not just defendants’ enforcement
15 of the law, but also seek to invalidate several sections of the City of Phoenix’s zoning code
16 and ordinances. See e.g., Complaint at 50 (alleging defendant City of Phoenix’s codes and
17 ordinances violate plaintiffs’ rights to free exercise of religion). These codes promote the
18 important state interest in the safety and well-being of Phoenix citizens. See Meredith v.
19 Oregon, 321 F.3d 807, 818 (9th Cir. 2003) (promotion of public safety satisfies state interest
20 prong of Younger). Third, the pending state proceedings afford them an adequate
21 opportunity to litigate their federal constitutional claims. We see no reason why plaintiffs
22 cannot assert their claims as a defense to the state proceedings.
23 II
24 There is no likelihood of irreparable harm. The complaint shows that plaintiffs have
25 been in a dispute with the City of Phoenix and their neighbors at least since 2007. Michael’s
26 trial was held last summer. Plaintiffs are not prevented from worshiping together in their
27 home. They are only prevented from using their home as a church and imposing their
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1 religion on their neighbors.

2 III
3 The balance of equities does not tip in plaintiffs’ favor. Defendants are attempting
4 to ensure plaintiffs’ use of their property is lawful. See Memorandum at 23 (representatives
5 of Phoenix police, developmental services and fire departments have visited plaintiffs).
6 Plaintiffs need only take their sign down and stop using their property for public worship
7 until the state courts resolve their claims. “[S]imply raising a serious First Amendment claim
8 is not enough to tip the hardship scales.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138
9 (9th Cir. 2009).
10 IV
11 A restraining order is not in the public interest. The “general public has an interest
12 in the health of state residents.” Stormans, 586 F.3d at 1139. Residents of Phoenix and, in
13 particular, plaintiffs’ neighbors, have an interest in the orderly and uninterrupted enforcement
14 of municipal codes designed to promote their safety and well-being.
15 Plaintiffs have failed to satisfy any of the conditions for the granting of a temporary
16 restraining order. There is no showing that plaintiffs’ claims cannot be raised and decided
17 in the ongoing state proceedings.
18 Accordingly, IT IS ORDERED DENYING plaintiffs’ motion for a temporary
19 restraining order (doc. 2).
20 We note that the insufficiency of plaintiffs’ filings makes obvious their need for the
21 advice of a lawyer, not a document preparer. If plaintiffs’ constitutional claims have any
22 merit, they should have no trouble obtaining counsel. We urge them to do so. If they do not
23 have a lawyer, they may wish to contact the Lawyer Referral Service of the Maricopa County
24 Bar Association at 602-257-4434.
25 DATED this 7 th day of April, 2011.
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