                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 26 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LEONARD J. PORTO III,                           No.    14-56079

                Plaintiff-Appellant,            D.C. No.
                                                8:12-cv-00501-DOC-PLA
 v.

CITY OF LAGUNA BEACH and JOHN                   MEMORANDUM*
PIETIG,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                    David O. Carter, District Judge, Presiding

                       Argued and Submitted April 9, 2018
                              Pasadena, California

Before: SCHROEDER and M. SMITH, Circuit Judges, and DRAIN,** District
Judge.

      Plaintiff-Appellant Leonard J. Porto III filed this suit for damages and

prospective relief in 2012. At the time, he was homeless and living in his car in

Laguna Beach, California. Among his other claims, Porto challenged two policies


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Gershwin A. Drain, United States District Judge for
the Eastern District of Michigan, sitting by designation.
of the City of Laguna Beach (the City) as unconstitutional: the criteria used to

grant priority to local residents seeking scarce spots at the City’s homeless shelter

(the Locals Criteria), and an ordinance, L.B.M.C. § 8.30, that criminalized sleeping

or camping in public areas (the Anti-Camping Ordinance). The district court

dismissed Porto’s challenge to the Anti-Camping Ordinance for lack of standing

and granted summary judgment to the Defendants-Appellees on Porto’s challenge

to the Locals Criteria, also for lack of standing. Porto timely appealed these

decisions in July 2014 and has abandoned his other claims on appeal. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

      During appellate briefing, we granted the Defendants-Appellees’ request for

judicial notice of two declarations by Porto that were filed in an unrelated lawsuit.

See Dkt. No. 43. In these declarations, executed under penalty of perjury in

January and October 2016, Porto states that he is no longer homeless. Porto now

concedes that his claims for prospective relief are moot. See Doe v. Madison Sch.

Dist. No. 321, 177 F.3d 789, 797–98 (9th Cir. 1999) (en banc). Accordingly, only

his claims for damages remain before us.

      In order to establish Article III standing to challenge either of the City’s

policies, Porto must show that he has suffered “(1) an injury in fact that (2) is fairly

traceable to the challenged conduct and (3) has some likelihood of redressability.”

Jewel v. Nat'l Sec. Agency, 673 F.3d 902, 908 (9th Cir. 2011). Porto lacks standing


                                           2
to challenge the Locals Criteria because he suffered no injury in fact traceable to

that policy. In his second 2016 declaration, he states that, for several reasons

including the “the inability to leave the shelter during the evening” and “dirty and

chaotic conditions,” he never entered the lottery to sleep at the shelter. He

describes “the prospect of sleeping inside the shelter” as “intolerable” and says that

living in his car was “a much better choice for [him].” Additionally, on several

occasions Porto was denied a space at the shelter because he refused to sign a

registration form containing a waiver of liability, which he stated he would never

sign under any circumstances. As such, Porto has failed to show that the Locals

Criteria forced him to compete for a space at the shelter “on an unequal basis.” See

Monterey Mech. Co. v. Wilson, 125 F.3d 702, 707 (9th Cir. 1997) (quoting Bras v.

Cal. Pub. Utils. Comm’n, 59 F.3d 869, 873 (9th Cir. 1995)). On the contrary,

Porto’s inability to tolerate conditions at the shelter and his refusal to sign the

registration form prevented him entirely from sleeping at the shelter. He therefore

lacks standing to challenge the Locals Criteria as unconstitutional.

      Porto argues that he has standing to challenge the Anti-Camping Ordinance

even though he was never arrested, charged, or convicted under that ordinance. He

alleges that police officers sometimes shone lights into his car at night, which

woke him up; however, there is no indication that the police were acting pursuant

to the ordinance, and officers do not need probable cause to shine a flashlight into


                                            3
a car. See Texas v. Brown, 460 U.S. 730, 739–40 (1983) (plurality opinion). On

one occasion, Porto was awoken by an officer who issued him a form marked

“Administrative Citation,” which stated that Porto had violated the Anti-Camping

Ordinance; however, the officer checked the box marked “Courtesy Notice of

Municipal Code Violation,” which specified that “[n]o fines are being assessed at

this time.” In the absence of any injury in fact which is fairly traceable to the Anti-

Camping Ordinance, Porto lacks standing to challenge that ordinance as

unconstitutional.

      AFFIRMED.




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