Opinion
Civil Action No. 3:02-CV-1178-D
February 6, 2003
MEMORANDUM OPINION AND ORDER
This is an action under 42 U.S.C. § 1983 alleging claims for race discrimination and takings without just compensation and without due process arising from municipal acts or omissions concerning real estate development, street and storm drainage, and the operation of a sewage line and lift station. Defendant City of DeSoto ("DeSoto") moves to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief can be granted. The court grants the motion in part and denies it in part and permits plaintiffs to replead.
I
Plaintiff Stanley B. Lewis ("Stanley") and his wife, Barbara Lewis ("Barbara"), are homeowners who reside at Jay Court, a cul-de-sac located off Aviary Road in the City of DeSoto. Stanley is African-American, as are the majority of homeowners in the area. Behind their home is a large tract of land that was vacant for several years and overgrown with tall grass and weeds, but is now under development. Due to improperly designed water and storm water drainage, when it rains, water accumulates at Jay Court and Aviary Road and empties into plaintiffs' cul-de-sac. DeSoto policymakers approved the street and sewer design. Water also flows onto the tract of land located behind plaintiffs' home. The tract effectively acts as a dam due to grass and weed growth. When it rains in large volumes, water floods plaintiffs' home, their parked vehicles, and their neighbors' residences. This flooding occurs because DeSoto policymakers — DeSoto's City Council — have authorized favored persons to divert water flow, thereby taking plaintiffs' real property for public use.
Aviary Road is also referred to in the complaint as "Avairy Road." See, e.g., Compl. ¶ 7. The court will refer to it as Aviary Road, as it is spelled elsewhere in ¶ 7 and in ¶ 11. Because plaintiffs live on Jay Court, "Aviary" is probably correct.
For the reasons stated infra at § II, the court recounts the facts that are well-pleaded in plaintiffs' complaint and assumes they are true.
Barbara is Caucasian.
Plaintiffs also complain about DeSoto's decision — through its City Council, City planners, and the City Engineer — to construct a sewage line near the rear of plaintiffs' home. This line has a lift station due to the topography of the land. Because DeSoto has not properly maintained the lift station, on several occasions raw sewage has spread near plaintiffs' home, producing offensive odors and exposing plaintiffs to disease and illness. It has also promoted the growth of grass and weeds on the large tract of land.
Stanley has complained several times to DeSoto policymakers and officials, to no avail. DeSoto officials have either not enforced, or have not effectively enforced, existing state or federal laws, or local ordinances, designed to prevent or alleviate such problems. They have instead contended falsely that such laws are inapplicable or that the flooding was an Act of God. Stanley has also appeared before the DeSoto City Council to request that the design defects of Aviary Road, including the flooding and sewage problem, be corrected. DeSoto has informed him that it recognizes its responsibility, but that he must remain patient. The developments he is awaiting will never occur without litigation.
Plaintiffs maintain that DeSoto favors rich and powerful land developers over ordinary citizens because they provide benefits to the City Council. African-Americans are relatively small taxpayers and are disfavored. Plaintiffs are being denied equal protection of the law, and their reports of violations of the law are not being considered, based on race.
Plaintiffs posit that their right under the Fourteenth Amendment to be free from race discrimination has been violated. They contend they have been deprived of liberty and that their property has been taken for public use without just compensation and without due process. They seek relief under § 1983.
Plaintiffs allege that they have been deprived of liberty without due process. See Compl. ¶ 13(b). To the extent they intend to assert a claim that is separate from their takings/due process claim, they must do so clearly in the amended complaint required by today's decision.
Plaintiffs assert claims under § 1983 in two counts, but it is not clear how the counts differ in their legal effect. One is captioned as being asserted "Against Individual Defendant" and the other as being asserted "Against City of DeSoto, Texas," Compl. at 7, but DeSoto is the sole defendant in this case.
DeSoto moves to dismiss the complaint for failure to state a claim. It contends that plaintiffs have pleaded only conclusory assertions in support of their equal protection and takings/due process claims and have failed to plead the facts necessary to state such causes of action.
II
"[T]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." Kaiser Aluminum Chem. Sales, Inc. v. Avondate Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (quoting Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1357, at 598 (1969)). "[D]ismissal of a claim on the basis of barebones pleadings is a `precarious disposition with a high mortality rate.'" Id. (quoting Barber v. Motor Vessel "Blue Cat," 372 F.2d 626, 627 (5th Cir. 1967)). "The [district] court may dismiss a claim when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief" Great Plains Trust Co. v. Morgan Stanley Dean Witter Co., 313 F.3d 305, 312 (5th Cir. 2002) (Fitzwater, J.) (Rule 12(c) decision) (citing Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam)). "In analyzing the complaint, [the court] will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff" Id. (citing Jones, 188 F.3d at 324). "The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim." Id. (citing Jones, 188 F.3d at 324). "Thus the court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint." Id. (citing Jones, 188 F.3d at 324).
III
The court considers first DeSoto's argument that plaintiffs have failed to plead with requisite specificity an equal protection claim. DeSoto maintains that plaintiffs have not alleged facts that demonstrate discriminatory intent, describe the city policy or custom that allegedly caused them injury, allege that others were treated differently, or suggest why DeSoto's actions were not objectively reasonable.
Viewed deferentially, the court holds that plaintiffs' complaint is sufficient in this respect. They allege that DeSoto acted with discriminatory intent based on race. See Compl. ¶ 12 ("Because the Plaintiff Stanley B. Lewis is an African-American. . . and the majority of the persons who reside on Jay Court are African-American, the Plaintiffs are being denied equal protection of the law and the Plaintiffs['] report of violations of the law are not being considered or enforce[d] because of the Plaintiffs' race." (emphasis added)). They aver that the actions of DeSoto were undertaken pursuant to a city policy, at least to the extent they assert that the infringing conduct was undertaken by the DeSoto City Council itself See id. ¶¶ 10-12. Plaintiffs also assert that they were treated differently based on their African-American race. See id. ¶ 12. DeSoto maintains that plaintiffs must allege facts that establish that DeSoto's actions were not objectively reasonable. See D. Mot. Dis. at 4. It cites for this proposition Leffall v. Dallas Independent School District, 28 F.3d 521, 525 (5th Cir. 1994). See id at 4 n. 5. Leffall does not appear to support this premise, however, and it is unclear why the objective reasonableness vel non of DeSoto's conduct would have any relevance where no individual defendant has been sued who can assert qualified immunity. Cf, e.g., Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). In fact, DeSoto does not address this contention in detail, as it does its first three arguments. See id. at 4-8.
In view of the gravamen of plaintiffs' complaint, which is based on allegations of race discrimination based on the African-American race of a majority of persons who reside in the neighborhood in question, it is not clear why plaintiffs maintain that Barbara, who is Caucasian, has a race discrimination claim, even if she may have a takings/due process claim.
Accordingly, the court denies DeSoto's motion concerning plaintiffs' equal protection claim.
As stated supra note 6, the court questions whether Barbara has an actionable claim based on race.
IV
DeSoto also challenges plaintiffs' takings/due process claim, contending that plaintiffs have alleged only conclusory assertions in support of the cause of action and have not pleaded that DeSoto denied them all economically viable use of their land or demonstrated that DeSoto, as opposed to rainfall, in any way intentionally and unreasonably interfered with their rights to use and enjoy their property.The court may hold that a plaintiff has failed to state a claim even if it does so based on arguments that defendant did not itself raise. Coates v. Heartland Wireless Communications, Inc., 55 F. Supp.2d 628, 633 (ND. Tex. 1999) (Fitzwater, J.); Foreman v. Dallas County, Tex., 990 F. Supp. 505, 510 (N.D. Tex. 1998) (Fitzwater, J.) (three-judge court). "Even if a party does not make a formal motion, the court on its own initiative may note the inadequacy of the complaint and dismiss it for failure to state a claim as long as the procedure employed is fair." 5A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1357, at 301 (2d ed. 1990) (footnote omitted).
In Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), the Supreme Court held that a § 1983 action seeking relief for a Takings Clause violation is not ripe until the plaintiff has unsuccessfully sought compensation through available state procedures. The Court also rested its conclusion on the ground that the claim was not ripe because the plaintiff "ha[d] not yet obtained a final decision regarding the application of the zoning ordinance and subdivision regulations" that effected the alleged taking. Williamson, 473 U.S. at 186; see also id. at 194. If the government has provided an adequate process for obtaining just compensation, and if resort to that process yields just compensation, the property owner has no claim against the government for a taking until he has used the state procedure and been denied just compensation. Id. at 194-95 (citation omitted). In Williamson the applicable state law permitted the property owner to bring an inverse condemnation action to obtain just compensation, and the plaintiff failed to demonstrate that it could not avail itself of this procedure or that the procedure would be inadequate. The Supreme Court held that the property owner's takings claim was premature. Id. at 196-97. The Court also concluded that the same analysis applied even if the taking was challenged as a violation of the Due Process Clause of the Fifth Amendment. Id. at 200. "Accordingly, before a takings claim is ripe, the claimant must unsuccessfully seek compensation. Short of that, it must be certain that the state would deny that claimant compensation were he to undertake the obviously futile act of seeking it." Samaad v. City of Dallas, 940 F.2d 925, 934 (5th Cir. 1991).
The mere existence of a state remedy is insufficient to demonstrate that a takings claim is not ripe. The state remedy must also be adequate. See Williamson, 473 U.S. at 197 (stating that party claiming constitutional violation must show that state remedies are unavailable or inadequate). A state procedure is "adequate even though its law is unsettled whether the claimant would be entitled to compensation." Rolf v. City of San Antonio, 77 F.3d 823, 826-27 (5th Cir. 1996); see also Samaad, 940 F.2d at 934 (finding state compensation procedures inadequate only if they "almost certainly will not justly compensate the claimant"). Further, a state-law remedy is adequate although § 1983 authorizes more remedies for due process violations. Parratt v. Taylor, 451 U.S. 527, 543-44 (1981) (providing that state-law remedy was adequate although it did not allow recovery for punitive damages or trial by jury), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986); see also Lake Nacimento Ranch Co. v. San Luis Obispo County, 841 F.2d 872, 879 (9th Cir. 1987). Plaintiffs have the burden of "establishing that Texas law unquestionably would afford them no remedy" before their § 1983 claims are ripe. Samaad, 940 F.2d at 935.
The court holds that plaintiffs have failed to allege adequately that any attempt to seek compensation through state procedures "would have been futile." See id. at 934. They have not pleaded the absence of an adequate state-law remedy for the kind of deprivation alleged here and have not attempted to compel DeSoto to pay them just compensation under state law. Plaintiffs' allegation that Stanley "has contacted City of DeSoto policymakers and other officials to seek redress," Compl. ¶ 10, or that Stanley has appeared on numerous occasions before the DeSoto City Council "and requested that the defective design of Aviary Road" be corrected, id. ¶ 11, is insufficient to plead that plaintiffs have sought and been denied state remedies or that those remedies are otherwise insufficient and futile.
* * *
Plaintiffs have failed to state a takings/due process claim on which relief can be granted. The court will permit them to file an amended complaint within 30 days of the date this memorandum opinion and order is filed to address, if they can, the defects in this cause of action. If plaintiffs do not amend, or they do but fail to cure the defect, the court will dismiss the takings/due process claim without prejudice.