Opinion
CIVIL ACTION NO. 3:00-CV-0687-G
May 29, 2001
MEMORANDUM ORDER
Before the court are: (1) the defendants' motion to dismiss federal claims for lack of subject matter jurisdiction; (2) the defendants' motion for summary judgment; and (3) the plaintiff's motion for partial summary judgment. For the reasons stated below, the defendants' motion for summary judgment is granted in part and reserved in part, the plaintiff's motion for partial summary judgment is denied, and the defendants' motion to dismiss is denied as moot.
I. BACKGROUND
The plaintiff, Harold W. Criswell ("Criswell"), is the owner of three apartment buildings located in Dallas, Texas. Plaintiff's First Amended Original Complaint ("Complaint") at 2. Criswell claims that since he purchased the first of the three buildings in 1994, the city of Dallas ("the city") has subjected him to unremitting harassment. Id. In summary, Criswell contends (1) that he has received repeated and unwarranted citations for violations of Chapter 27 of the Dallas City Code; (2) that representatives of the city have trespassed upon his property, have conducted warrantless searches of his property, and have conspired to foment unrest among his tenants; (3) that the city has made unsupported public accusations that his properties are a "public nuisance" and that he owes money to the city without giving him prior notice or a hearing. Id.
Criswell filed this suit in a state district court on February 28, 2000. Defendants' Notice of Removal and Brief ("Notice of Removal") at 1. He seeks declaratory and injunctive relief, damages, attorney's fees, and costs under 42 U.S.C. § 1983. Complaint at 14-18. On March 31, 2000, the city removed the case to this court on federal question grounds. See Notice of Removal at 2-3.
II. ANALYSIS A. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving parties are entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movants make such a showing by informing the court of the basis of their motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. CIV. P. 56(c).
The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir. 1986).
Once the movants make this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this burden, the "opponent must do more than simply show . . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249.
While all of the evidence must be viewed in a light most favorable to the motion's opponent, Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant's summary judgment burden. Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Tapalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Summary judgment in favor of the movants is proper if, after adequate time for discovery, the motion's opponent fails to establish the existence of an element essential to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
B. Section 1983 Claims 1. Liability of the City
The city contends that it is entitled to governmental immunity from suit. Defendants' Brief in Response to Plaintiff's Motion for Partial Summary Judgment ("City's Response Brief") at 3. "[U]nlike various government officials, municipalities do not enjoy immunity from suit — either absolute or qualified — under § 1983." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993); also Burge v. Parish of St. Tammany, 187 F.3d 452, 466-67 (5th Cir. 1999).
The Fifth Circuit recently clarified the law governing municipal liability for § 1983 claims in Piotrowski v. City of Houston. "Under the decisions of the Supreme Court and [the Fifth Circuit], municipal liability under section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose `moving force' is the policy or custom." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001); see also Palmer v. City of San Antonio, Texas, 810 F.2d 514, 516 (5th Cir. 1987) (quoting Grandstaff v. City of Borger, Texas, 767 F.2d 161, 169 (5th Cir. 1985), cert. denied, 480 U.S. 916 (1987)), abrogated on other grounds in Leatherman v. Tarrant County Narcotics Intelligence Unit, 507 U.S. 163, 167 (1993). A plaintiff seeking to impose liability upon a municipality must establish each of these three elements. "Mistakes in analyzing section 1983 municipal liability cases frequently begin with a failure to separate the three attribution principles and to consider each in light of relevant case law." Piotrowski, 237 F.3d at 578. Accordingly, the court, informed by Piotrowski, will examine each of these three separate elements in turn.
a. A Policymaker
A policymaker is either a lawmaker or one "whose edicts or acts may fairly be said to represent official policy." Swann v. City of Dallas, 922 F. Supp. 1184, 1204 (N.D. Tex. 1996) (quoting Bennett v. City of Slidell, 728 F.2d 762, 766 (5th Cir. 1984) (en bane)), aff'd, 131 F.3d 140 (5th Cir. 1997) (table). Criswell alleges that the policymakers in this case are (1) Susie Hughes ("Hughes"), manager of the city's Code Enforcement Department's Multi-Family Inspection Program ("code enforcement" or "code enforcement department"); (2) the code enforcement inspectors; (3) the code enforcement department itself; and (4) the Urban Rehabilitation Standards Board ("URSB"). See Plaintiff's Motion for Partial Summary Judgment ("Criswell's Motion") at 11; Brief in Support of Plaintiffs Motion for Partial Summary Judgment ("Criswell's Summary Judgment Brief") at 5; Brief in Support of Plaintiffs Response to Defendants' Motion for Summary Judgment ("Criswell's Response Brief") at 2. This court has previously held the URSB to be a policymaker for purposes of establishing municipal liability. See Swann, 922 F. Supp. at 1205. With respect to the other claimed policymakers, however, Criswell contends that Hughes and the code enforcement inspectors comprise the investigative arm of the city's Urban Rehabilitation Standards Board ("URSB"). Criswell's Summary Judgment Brief at 6. Because Hughes and her code enforcement subordinates perform an investigative function for the URSB, according to Criswell, they are also policymakers. Criswell's Response Brief at 2. Swann held that "the director" of the URSB "includes representatives, agents or department employees" and is the designee of the city manager to enforce and administer Chapter 27 of the Dallas City Code. Swann, 922 F. Supp. at 1205. Criswell contends that Hughes and her subordinates are representatives of the URSB director because they issue citations, gather evidence for use at URSB hearings, refer properties to the URSB, and testify at hearings before the URSB. Criswell's Response Brief at 2. As additional support for this position, Criswell asserts that on one occasion, a code enforcement inspector was accompanied onto one of Criswell's properties by a URSB code inspector and that "the URSB relies heavily on the `evidence' gathered by Code [enforcement] Inspectors." Criswell's Summary Judgment Brief at 5.
The court agrees that the URSB is a policymaker whose policies may subject the city to municipal liability. However, Criswell's argument that Hughes, the code enforcement inspectors, and the code enforcement department itself are policymakers is unconvincing. Criswell offers no summary judgment evidence on the relationship between code enforcement and the URSB. Instead, he asks this court to infer that Hughes and her subordinates are representatives of the URSB and hence policymakers for the city of Dallas simply because code enforcement "works closely with" the URSB and the URSB is a policymaker. Id. Such an inference is unwarranted, and Criswell's lack of evidence on this point is fatal to his contention that Hughes, code enforcement, and the code enforcement inspectors are policymakers. However, because Criswell has identified a single policymaker, the URSB, the court will next consider whether Criswell has adduced evidence sufficient to establish an official policy.
b. An Official Policy
A municipality may be liable under § 1983 if the execution of one of its customs or policies deprives a plaintiff of his constitutional rights; a municipality cannot be liable under § 1983, however, merely because it employed a tortfeaser. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691 (1978); Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995). According to the Supreme Court, "[t]he `official policy' requirement . . . make[s] [it] clear that municipal liability [under § 1983] is limited to action for which the municipality is actually responsible . . . — that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986). A single incident unaccompanied by supporting history will likely be an inadequate basis for inferring such a custom or usage unless the actor or actors involved had been given official policy-making authority. Worsham v. City of Pasadena, 881 F.2d 1336, 1339-40 (5th Cir. 1989) (citations omitted); see also Palmer, 810 F.2d at 516. "`[M]unicipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives' by city policymakers." City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur, 475 U.S. at 483-84).
The Fifth Circuit defines official policy as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.) (per curiam), aff'd in relevant part on rehearing, 739 F.2d 993 (5th Cir. 1984) (en banc); Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992) (citing Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc), cert denied, 472 U.S. 1016 (1985)). Although an official policy which is itself unconstitutional clearly subjects a municipality to § 1983 liability, "even a facially innocuous policy will support liability if it was promulgated with deliberate indifference to the `known or obvious consequences' that constitutional violations would result." Piotrowski, 237 F.3d at 579. "It follows that each and any policy which allegedly caused constitutional violations must be specifically identified by a plaintiff, and it must be determined whether each one is facially constitutional or unconstitutional." Id. at 579-80.
In this case, therefore, the court must first examine Criswell's allegations and determine whether, as the party seeking to impose liability on the city, he has identified a municipal policy. Criswell may establish a municipal policy either by identifying an officially promulgated policy or by providing evidence of a persistent, common, or widespread custom or practice. If Criswell establishes a municipal policy, either express or customary, and it is facially unconstitutional, then the city may be held liable under § 1983 for a violation of constitutional rights caused by the policy. If it is facially constitutional, then Criswell must demonstrate — in order for the city to be held liable under § 1983 — that the policy was promulgated with deliberate indifference to its known or obvious unconstitutional consequences.
(1) Express or Customary Policy
Criswell has identified two municipal policies. The first is Chapter 27 of the Dallas City Code. Criswell's Response Brief at 3; see also Criswell's Summary Judgment Brief at 6. The second is "an officially adopted municipal policy, ordinance, or decision . . . to intimidate and harass property owners such as Plaintiff along Gaston Avenue and other areas where the City hopes to lure new developments. . . ." Complaint at 17. Clearly, Chapter 27 of the Dallas City Code is an official policy, adopted and promulgated by the city's lawmaking body. Notwithstanding Criswell's characterization of the second alleged policy as "an officially adopted municipal policy, ordinance or decision," Criswell has provided no summary judgment evidence of an express policy of this sort. Accordingly, the court construes Criswell's complaint as alleging a customary policy of intimidation and harassment of property owners. Even though Criswell has alleged this customary policy, he has not adduced sufficient evidence to establish that the harassment of property owners amounts to "a persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy." Webster, 735 F.2d at 841. Even if the court assumes arguendo the truth of every act of harassment alleged by Criswell, see note 3 above, Criswell has submitted no evidence that the city perpetrated the same acts of harassment upon any other property owners. No matter how egregious, evidence of harassment of a single property owner does not establish the existence of a persistent and widespread custom of harassment of property owners in general. Thus, the court concludes that Criswell has not satisfied his summary judgment burden of producing evidence which would allow a reasonable jury, see Anderson, 477 U.S. at 248, to find that the city has a policy of harassing property owners.
Criswell alleges that the identified policy of harassment of property owners is evidenced by the following acts: "(1) Repeated, unauthorized and illegal warrantless searches of Plaintiff's property; (2) Trespassing on Plaintiff's property; (3) Harassment and threats toward Plaintiff's on-site personnel; (4) Failure to notify Plaintiff of the charges against him prior to imposition of sanctions; (5) Failure to afford due process rights; (6) Failure to specifically point out alleged violations of the Dallas City Code or to provide meaningful opportunities to cure the alleged violations; (7) Unrealistic demands and standards, considering the locations involved and the realistic rental potential of the properties; (8) Failure to enforce the Dallas City Code and Dallas Fire Code as against lessees/tenants and neighbors; (9) Use of unconstitutional ordinances and penal provisions on repeated occasions, after having been advised of the unconstitutionality of same; (10) Repeated and frivolous citations against Plaintiff for alleged violations of the Dallas City Code; (11) Failure to equally enforce the law as between Plaintiff and his tenants or trespassers on the properties." Complaint at 16-17.
(2) Constitutionality of the Policy
Having found an express municipal policy, in the form of Chapter 27 of the Dallas City Code, the court must next determine the constitutionality of that ordinance. Criswell alleges that Chapter 27 is facially unconstitutional insofar as its definition of "urban nuisance" is unconstitutionally vague. Complaint at 15. Criswell's argument that the urban nuisance definition contained in Chapter 27 is unconstitutionally vague is unavailing. Only "if the terms of an ordinance are so indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application" will it be deemed unacceptably vague. Medlin v. Palmer, 874 F.2d 1085, 1090 (5th Cir. 1989) (citing Connally v. General Construction Co., 269 U.S. 385, 391 (1926)).
Chapter 27 defines an "urban nuisance" as follows:
Urban nuisance means a premises or structure that:
(A) is reasonably dangerous to the physical health or safety of an occupant or other person; or
(B) because of violations of section 27-11, its state of disrepair is such that it could reasonably cause injury, damage, harm, or inconvenience to a considerable portion of the community in the use and enjoyment of property, materially interfering with the proper use or comfort and enjoyment of surrounding property, taking into consideration the nature and use of the properties in the area and the character of the community in which they are situated, which condition would be substantially offensive and annoying to persons of ordinary sensibilities, tastes and habits living in the community.
Dallas, Tex. Rev. City Code, Art. I, § 27-3(23).
Section 27-11, referenced in the definition of an urban nuisance, is comprised of no less than 31 separately delineated property, structural, utility, and health standards. Dallas, Tex. Rev. City Code, Art. III, § 27-1 l(a)-(d). These 31 standards are extremely detailed, going so far as to specify a minimum temperature for the hot water supplied by the water heater and the size of the masonry support dowels for the foundation. Dallas, Tex. Rev. City Code, Art. III, §§ 27-1 l(c)(4), 27-1 l(b)(2). Moreover, in analyzing this same provision of the Dallas City Code, the Fifth Circuit has observed that "the Dallas nuisance standards are straightforward and the administrative procedure is adequate." Freeman v. City of Dallas, 242 F.3d 642, 653 (5th Cir. 2001) (en banc). Pursuant to its own review of the detailed nuisance standards contained in Chapter 27 and in accordance with the Fifth Circuit's findings on the same issue, this court concludes that the definition of an "urban nuisance" is not unconstitutionally vague.
Having determined that Chapter 27 is not unconstitutional on its face, the court turns to the question of whether Criswell has established that Chapter 27 was promulgated with deliberate indifference to the known or obvious consequences that constitutional violations would result. "Deliberate indifference of this sort is a stringent test, and `a showing of simple or even heightened negligence will not suffice' to prove municipal culpability." Piotrowski, 237 F.3d at 579. Criswell contends that he suffered a number of deprivations of constitutional rights as a result of the city's application of Chapter 27. Criswell alleges that (1) the application of Chapter 27 against him constitutes a "taking" of his property in violation of the United States and Texas Constitution; (2) the city's actions denied him substantive and procedural due process; and (3) the city violated his rights under the Fourth Amendment of the United States Constitution by unlawfully searching his property. Complaint at 15-18. The evidence is insufficient, however, to establish that the city of Dallas promulgated Chapter 27 with deliberate indifference or with the knowledge that property owners would be denied their constitutional rights. Even if Criswell is entirely correct in his assertion that the city used "unconstitutional ordinances and penal provisions on repeated occasions, after having been advised of the unconstitutionality of same," Complaint at 17, that does not prove that the city promulgated Chapter 27 knowing in advance its potential for constitutional injury.
There is some dispute among the parties whether Criswell's complaint alleges a private taking or a taking for public use without just compensation. Compare Defendants' Brief in Support of Their Motion to Dismiss Federal Claims for Lack of Subject Matter Jurisdiction ("Brief on Motion to Dismiss") at 4 with Plaintiff[']s Response Brief to Defendant City of Dallas' Motion to Dismiss Federal Claims for Lack of Subject Matter Jurisdiction at 1-2. The court will not address this question, as it is unnecessary to do so to resolve the instant motions.
c. Summary
Criswell, as the party seeking to impose liability upon the city of Dallas, has established the existence of a policymaker, in this case, the URSB. However, Criswell has adduced no evidence that the city promulgated the facially constitutional municipal policy embodied in Chapter 27 with deliberate indifference to its potential for causing constitutional violations. Accordingly, the court need not proceed to the third step in the municipal liability determination which requires an analysis of the constitutional violation and causation. Even when all the evidence is viewed in the light most favorable to Criswell, he has not established that there is a genuine issue of material fact for trial with respect to his § 1983 claim against the city of Dallas, and the city is thus entitled to summary judgment.
2. Liability of Individual Defendants
The individual defendants assert that they are entitled to qualified immunity. See Defendants' Brief in Support of its Motion for Summary Judgment ("City's Summary Judgment Brief") at 8-14. The threshold question the court must answer with regard to the 1983 claims against Hughes and Sparks is whether these individual defendants are entitled to qualified immunity. See Mangieri v. Clifton, 29 F.3d 1012, 1015 (5th Cir. 1994) (citing Siegert v. Gilley, 500 U.S. 226, 231-33 (1991), and Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993), cert. denied, 510 U.S. 1123 (1994)). To avoid summary judgment on this ground, Criswell must allege particularized facts which, if proved, would defeat a qualified immunity defense. See Brown v. Glossip, 878 F.2d 871, 874 (5th Cir. 1989) (citing Geter v. Fortenberry, 849 F.2d 1550 (5th Cir. 1988); Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985); and Jacquez v. Procunier, 801 F.2d 789 (5th Cir. 1986)); see also Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996) ("[W]hen a plaintiff sues a public official under § 1983, the district court must insist on heightened pleading by the plaintiff.") (citing Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc)).
Qualified immunity shields government officials performing discretionary functions from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) (citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)). The existence of qualified immunity is a policy decision which weighs the vindication of an individual's rights against society's needs for effective government. See Elliott, 751 F.2d at 1476-78. The need for effective government outweighs individual rights to this extent — some justified claims will necessarily be dismissed in the interest of freeing public officials "to exercise their duties and functions without fear of having their attentions distracted by the subsequent claims of unhappy or unsuccessful litigants." Id. at 1478.
Where civil rights violations of the sort involved here are asserted, a public official is entitled to qualified immunity if a reasonable official could have believed his actions to be lawful "in light of clearly established law [at the time] and the information the [official] possessed." Babb, 33 F.3d at 477 (quotations omitted); see also Anderson v. Creighton, 483 U.S. 635, 638-40 (1987) (citations omitted); Matherne v. Wilson, 851 F.2d 752, 756 (5th Cir. 1988) (holding that the court must measure the "law's certainty" against "an objectively reasonable view of the facts facing an official"). The contours of the plaintiff's rights must have been clear enough for a reasonable official to have understood that he was violating those rights. Johnston v. City of Houston, Texas, 14 F.3d 1056, 1059 (5th Cir. 1994) (citing Texas Faculty Association v. University of Terns at Dallas, 946 F.2d 379, 389-90 (5th Cir. 1991)). Thus, in light of the preexisting law, the unlawfulness of a defendant's acts must have been apparent. Anderson, 483 U.S. at 638-40; Hodorowski v. Ray, 844 F.2d 1210, 1216-17 (5th Cir. 1988).
"The qualified immunity defense `gives ample room for mistaken judgments' by protecting `all but the plainly incompetent or those who knowingly violate the law.'" Gibson, 44 F.3d at 277 (citations omitted). Therefore, even if the individual defendants' actions were taken in error, they are entitled to the defense of qualified immunity if "their decision was reasonable, albeit mistaken." Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) (per curiam) (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)), cert. denied, 511 U.S. 1019(1994). The court is to determine as a matter of law if an official's acts were reasonable. Mangieri, 29 F.3d at 1015-16 (citing Lampkin, 7 F.3d at 434-35).
Thus, in this circuit, a plaintiff must satisfy a three-part test to establish that a defendant is not entitled to qualified immunity. Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir. 1999); also Morris v. Dearborne, 181 F.3d 657, 665 (5th Cir. 1999). First, "[a] court evaluating a claim of qualified immunity `must . . . determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all.'" Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999)); see also Morris, 181 F.3d at 665. Second, the court must "determine whether that right was clearly established at the time of the alleged violation." Wilson, 526 U.S. at 609. Finally, the court "must determine whether the record shows that the violation occurred, or at least gives rise to a genuine issue of material fact as to whether the defendant actually engaged in the conduct that violated the clearly-established right." Morris, 181 F.3d at 666 (quoting Ken v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999)). Even if the court determines that the official's conduct was unconstitutional, it still must decide whether that conduct was "objectively reasonable." Kipps, 197 F.3d at 768.
Some panels of the Fifth Circuit have condensed the qualified immunity analysis into two steps, but the relevant points of inquiry in each analysis are the same. See, e.g. Jones v. City of Jackson, 203 F.3d 875, 879 (5th Cir. 2000) ("The first inquiry in examining a defense of qualified immunity asserted in a motion for summary judgment is whether the plaintiff has alleged `the violation of a clearly established constitutional right.'") (quoting Siegert v. Gilley, 500 U.S. 226, 231 (1991)).
a. Hughes (1) Clearly Established Constitutional Right
It is Criswell's contention that Hughes' actions in effecting a search of his property at 5727 Gaston Avenue ("Stardust Apartments") without a search warrant and without consent deprived him of his rights under the Fourth Amendment to the United States Constitution. Criswell's Response Brief at 4. Criswell argues that under Swann, this court is constrained to find that warrantless inspections of an apartment building by Dallas city code inspectors are a violation of a clearly established constitutional right. See Swann, 922 F. Supp. at 1202. He is correct. Although Hughes directs the court's attention to the recent Freeman decision, that holding does not apply to the facts of this case. Freeman held that the warrantless seizure of property that had been adjudged a nuisance under Chapter 27 by the URSB did not violate the Fourth Amendment. Freeman, 242 F.3d at 644-45. In part, the court's decision was based upon the fact that "the evidence of municipal code violations had already been obtained by means unchallenged by the landowners." Id. at 651. Because Criswell challenges the means by which Hughes and her subordinates obtained evidence of municipal code violations, Freeman is inapplicable here. Thus, the court finds that as in Swann, Criswell "has alleged a violation of a constitutional right that was clearly established" when Hughes or her subordinates inspected Criswell's buildings. Swann, 922 F. Supp. at 1202-03.
(2) Objective Reasonableness
Although Criswell has alleged the violation of a clearly established constitutional right by Hughes, the evidence is not clear that a violation actually occurred. The Dallas City Code authorizes code enforcement to inspect: "(1) the exterior of a structure and premises which contain no structure; and (2) the interior of a structure, if the permission of the owner, occupant, or person in control is given." Dallas, Tex. Rev. City Code Ch. 27, Art. II, § 27-5 (emphasis added). Furthermore, the code enforcement policy manual states, "Search Warrants may be obtained only through the division or district manager when the property in question is posted "No Trespassing" or Code Enforcement has been banned by the person in control from the property." Policy Manual Memorandum dated August 25, 1994 on the Subject of Search Warrants ("Search Warrant Policy"), attached as Exhibit A to Criswell's Response Brief. The evidence does not support a finding that Criswell banned the code enforcement department as a whole from his properties. Although Hughes concedes that she has seen "no trespassing" signs posted at Criswell's 5727 Gaston Avenue property "probably after June of '99," it is not clear from the above provisions whether the posting of such a sign would even prevent a code inspector from making a warrantless inspection of the exterior of a building facing an inner courtyard. Hughes Deposition, Criswell's Appendix at 38.
Hughes' testimony at the URSB on February 15, 2000 establishes that Criswell banned her from his property. Transcript of URSB Rehearing on February 15, 2000 ("Rehearing Transcript"), Appendix to Plaintiffs Brief in Support of Plaintiffs Motion for Partial Summary Judgment ("Criswell's Appendix") at 147. However, Hughes further indicated that Criswell expressed a desire to have another inspector assigned to his properties. Hughes Deposition, Criswell's Appendix at 51. Criswell has offered no summary judgment evidence that he banned the entire code enforcement department from his properties. In fact, Criswell's own testimony at the URSB rehearing that he had "no objection to the interior inspection" militates against such a finding. Rehearing Transcript, Criswell's Appendix at 160.
The individual units of the Stardust Apartments are arranged around a central courtyard, accessible via one walkway through the front of the building and one walkway through the rear. Hughes Deposition, Criswell Appendix at 29-30.
Even if Criswell is right that Hughes violated his constitutional rights by entering the courtyard of the Stardust Apartments herself or by ordering code inspectors to do so, Hughes' actions were objectively reasonable under the circumstances. Hughes testified as to her understanding that a "no trespassing" sign does not constitute a complete bar to entry by a city code inspector. Hughes Deposition, Criswell's Appendix at 10-11. Rather, a code inspector may enter and search a property with a posted "no trespassing" sign if the inspector solicits and obtains permission to do so from the owner, manager, or tenant of the building. Id. at 10, 49. Even if permission is refused, in Hughes' opinion, a warrant is normally only required for an "interior violation." Id. at 11-12. Hughes' actions were not unreasonable in light of the uncertainty surrounding the applicability of section 27-5 and the policy manual search warrant provision to inspections of the exterior of a building facing an inner courtyard. Clearly, it cannot be said that in light of the preexisting law, the unlawfulness of Hughes actions was apparent. See Anderson, 483 U.S. at 638-40; Hodorowski, 844 F.2d at 1216-17. As a result, Hughes is entitled to qualified immunity.
b. Sparks Violation of a Clearly Established Constitutional Right
Criswell argues that Sparks filed an unauthorized repair order in the Dallas County deed records and that she unreasonably delayed releasing the repair order, thus thwarting Criswell's sale of the affected property. Criswell's Response Brief at 7. Criswell contends that these actions and omissions violated his substantive due process rights under the Fourteenth Amendment to the United States Constitution or alternatively, that they constituted a "taking" of his property in violation of the Fifth Amendment. Criswell's Response Brief at 7-8. In order to state a claim for violation of substantive due process, Criswell must have a protected property or liberty interest. Simi Investment Company, Inc. v. Harris County, Texas, 236 F.3d 240, 249 (5th Cir. 2000). If a deprivation of a property interest is alleged, that property interest must be established "through some independent source such as state law." Hidden Oaks Limited v. City of Austin, 138 F.3d 1036, 1046 (5th Cir. 1998) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). Criswell claims that he has a protected property interest in his contractual right to receive money for the sale of his real property. Criswell's Summary Judgment Brief at 17 (citing Johnson v. Southwest Mississippi Regional Medical Center, 878 F.2d 856, 858 (5th Cir. 1989)). Even if it is assumed that Criswell has a protected property right in the contract of sale, he must still demonstrate that the alleged deprivation of that right is not rationally related to a legitimate government objective. See Simi Investment Company, 236 F.3d at 250-51. "If the question is at least debatable, there is no substantive due process violation." Id. at 251.
Criswell contends that repair orders filed by Sparks against the Stardust Apartments and his building at 5121 Gaston Avenue ("Garden Villa Apartments") were fraudulent under Section 51.901(c)(2) of the Texas Government Code and that, as a matter of law, the filing of fraudulent repair orders can never be rationally related to a legitimate government objective. Criswell's Summary Judgment Brief at 18-21. However, the evidence does not support his contention that the repair orders in this case were in fact fraudulent. Criswell takes issue with the filing of the order against the Garden Villa Apartments in the Dallas County deed records, arguing generally that: (1) he was not in default of the repair order when it was filed in the deed records; and (2) the laws of the state of Texas do not authorize the filing of a repair order in the county deed records. Criswell's Response Brief at 8; Criswell's Summary Judgment Brief at 18-21. This court disagrees with Criswell's interpretation of the text of the repair order against the Garden Villa Apartments as requiring the URSB to wait 90 days before filing the repair order in the deed records in order to determine whether repairs had been completed. See id. at 17. The repair order references § 27-13(c)(4) as the authority under which it was issued. Repair Order dated 10/21/99, Criswell's Appendix at 296. Section 27-13(h) provides:
The director shall give notice of an order issued under Subsection (c)(4) . . . at the time of issue, to each person designated in Subsection (a) and shall file each order under Subsection (c)(4) in the deed records of Dallas County. If an order to demolish or repair is timely effected, the director shall, upon request and payment of the cost by the owner, file a notice of compliance in the deed records of Dallas County.
Dallas, Tex. Rev. City Code, Art. IV, § 27-13(h).
Clearly, this provision of the Dallas City Code anticipates that when a repair order is issued, the URSB is to file that order in the deed records of Dallas County. When repairs have been completed and if the owner requests and pays the costs of doing so, the URSB is to file a notice of compliance with the repair order in the deed records. If an owner does not effect the ordered repairs, then the URSB may assess civil penalties against the owner and must provide notice of such assessment separate and apart from the repair order itself. Dallas, Tex. Rev. City Code, Art. IV, § 27-13(g). Thus, Sparks was entitled to file the repair order in the Dallas County deed records immediately upon its issuance and was not required to wait 90 days before doing so.
Criswell's reliance upon various provisions of the Texas Government Code and the Texas Local Government Code is unavailing. He makes much of the various statutory provisions authorizing the imposition of civil penalties upon an owner who fails to make ordered repairs. See Criswell's Summary Judgment Brief at 18-21. These code sections are beside the point. While the URSB is indeed authorized to impose civil penalties for non-compliance with a repair order, civil penalties are the last step in a long process. Prior to imposing civil penalties, a municipality must hold a public hearing and "may file notice of the hearing in the Official Public Records of Real Property in the county in which the property is located," which notice is "binding on subsequent grantees, lienholders, or other transferees of an interest in the property who acquire such interest after the filing of the notice," TEX. LOCAL GOV'T CODE ANN. § 214.001(e) (Vernon Supp. 2001). "The notice must contain the name and address of the owner of the affected property if that information can be determined, a legal description of the affected property, and a description of the hearing." Id. There is nothing in this provision preventing the city from choosing to file a repair order in the deed records to serve as notice of the hearing to subsequent purchasers. In fact, this code section uses the terms "notice" and "order" interchangeably.
See, e.g., TEX. LOCAL GOV'T CODE ANN. § 214.001(e) (Vernon Supp. 2001) ("Under this subsection, the municipality is not required to furnish any notice to a mortgagee or lienholder other than a copy of the order in the event the owner fails to timely take the ordered action."). See also TEX. LOCAL GOV'T CODE ANN. § 214.001(g) (Vernon Supp. 2001) ("After the hearing, the municipality shall promptly mail . . . a copy of the order to the owner of the building. . . . If a notice is mailed according to this subsection. . . .").
With respect to Criswell's allegation that Sparks unreasonably failed to release the repair order, he offers no proof that he was entitled to its release. As discussed above, section 27-13(h) provides that the city must file a notice of compliance in the deed records if the owner timely effects repairs and upon request and payment of the cost by the owner. While Criswell has adduced evidence that he requested release of the repair order, he has not provided any evidence that repairs were completed or that he paid the costs of the release prior to the date the release was finally issued. Affidavit of Harold W. Criswell ¶ 12, Criswell Appendix at 270.
Because Sparks properly filed the repair order pursuant to Texas statute and the Dallas City Code, it cannot be deemed fraudulent. There is no proof that she unreasonably refused to release it. The city has a legitimate interest in establishing and enforcing minimum housing standards and the issuance of a valid repair order is rationally related to that interest. See Hidden Oaks, 138 F.3d at 1043. As a result, there can be no substantive due process violation. Criswell also argues that by filing a fraudulent repair order and unreasonably refusing to release it, Sparks effected a private taking of his property. Plaintiff[']s Response Brief to Defendant City of Dallas' Motion to Dismiss ("Response to Motion to Dismiss") at 4; Criswell's Summary Judgment Brief at 22. See also note 4 above. Because the proof has not shown, however, that Sparks filed a fraudulent repair order or unreasonably refused to release it, this argument also fails.
Interestingly, Criswell's private takings argument is derived solely from the allegation in his complaint that the defendants' actions were motivated by a desire "to force Plaintiff to sell and/or tear down the properties to make way for newer, more expensive developments that benefit larger developers and cater to upper income residents." Response to Motion to Dismiss at 4 (citing Complaint at 17). Even if the proof had shown that Sparks had filed a fraudulent repair order and unreasonably refused to release it, thus preventing the sale of the Garden Villa Apartments to a developer, such a conclusion would be antithetical to Criswell's claim that the city's actions were motivated by a desire to force Criswell to sell out.
C. State Law Claims
Federal court jurisdiction exists over an entire action, including state law claims, when the federal and state law claims "`derive from a common nucleus of operative fact' and are `such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding.'" Carnegie-Mellon University v. Cohill, 484 U.S. 343, 349 (1988) (quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966)). Yet supplemental jurisdiction over state law claims is a "doctrine of discretion, not of plaintiff's right." Gibbs, 383 U.S. at 726. Consequently, "a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims." Carnegie-Mellon, 484 U.S. at 350.When the federal claims are dismissed before trial and only state law claims remain, the balance of factors to be considered under the supplemental jurisdiction doctrine weigh heavily in favor of declining jurisdiction; therefore, the federal court should usually decline the exercise of jurisdiction over the remaining claims and send them to state court. See id. at n. 7. According to the Fifth Circuit, "[o]ur general rule is to dismiss state claims when the federal claims to which they are pendent are dismissed." Parker Parsley Petroleum Co. v. Dresser Industries, 972 F.2d 580, 585 (5th Cir. 1992) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)).
In the instant case, summary judgment has been awarded to the defendants on Criswell's federal claims, and only a state law claim remains. Because the federal claims are being dismissed before trial, the factors of judicial economy, convenience, fairness, and comity suggest that this court ought to decline jurisdiction over the remaining state law claims against these defendants. See 28 U.S.C. § 1367(c)(3).
III. CONCLUSION
For the reasons stated above, Criswell has not shown a basis for liability against the city of Dallas under § 1983. Furthermore, Hughes and Sparks are entitled to qualified immunity from Criswell's federal claims. Accordingly, the defendants' motion for summary judgment on Criswell's federal claims is GRANTED. Insofar as the defendants' motion for summary judgment relates to Criswell's claims under state law, decision on that part of the motion is reserved to the state district judge on remand. The defendants' motion to dismiss Criswell's federal claims for lack of subject matter jurisdiction is DENIED as moot. Criswell's claims under state law are REMANDED to the 298th Judicial District Court of Dallas County, Texas. The clerk shall mail a certified copy of this memorandum order to the district clerk of Dallas County, Texas. 28 U.S.C. § 1447(c).
SO ORDERED.