Opinion
3:97-CV-3209-R.
August 6, 2001.
MEMORANDUM OPINION AND ORDER
Now before this court are three separate motions: 1) Plaintiff's Motion for Summary Judgment on Liability, filed on December 4, 1998; 2) Defendant's Motion for Summary Judgment or in the Alternative Partial Summary Judgment; and Supplemental Response to Plaintiff's Motion for Summary Judgment, filed on June 21, 2001; and 3) Defendant's Motion to Dismiss for Want of Jurisdiction, Motion for Judgment on the Pleadings, Motion to Dismiss for Failure to State a Claim; and Alternatively Motion to Partially Abstain, filed on July 9, 2001. For the reasons stated below, Defendant's Motion for Summary Judgment is GRANTED and the Plaintiff's claims are DISMISSED WITH PREJUDICE. Because all claims have been dismissed, this court need not address the remaining motions.
Background
I Procedural Background
Plaintiff, General Rental Company, Inc. (GRC), filed suit in this court on December 31, 1997 against the City of Dallas (the City). Plaintiff's Complaint stated causes of action pursuant to 42 U.S.C. § 1983 for violations of the Plaintiff's constitutional rights, stemming from a search of the Plaintiff's property by Dallas Code Enforcement Officers and the placement of warning signs on certain buildings located on that property. Plaintiff's Complaint also sought injunctive relief to enjoin the City from enforcing Chapter 27 of the City Code, and from taking a variety of other actions in conjunction with such enforcement, on the ground that Chapter 27 is unconstitutional. On December 4, 1998, Plaintiff filed a Motion for Summary Judgment on Liability, which was stayed by this court pending the Fifth Circuit's decision in Freeman v. Dallas, 242 F.3d 642 (5th Cir. 2001).
In light of factual developments since the staying of the Plaintiff's Motion, on February 12, 2001 this court granted the Defendant permission to file a motion for summary judgment and a supplemental response to the Plaintiff's Motion for Summary Judgment. On May 24, 2001, this court granted the Plaintiff permission to file an amended complaint and to supplement its original Motion for Summary Judgment. The Plaintiff subsequently filed its First Amended Complaint, to which the Defendant responded with its First Amended Answer and its Motion to Dismiss, as well as its Motion for Summary Judgment and Supplemental Response to the Plaintiff's Motion for Summary Judgment. In the interim, the Fifth Circuit issued its opinion in Freeman v. Dallas, enabling this court to consider the motions pending before it.
II Factual Background
This case is part of an ongoing dispute between the City and the Plaintiff, the former owner and current lien holder of property located on one large area of land at the corner of Birdsong and Diceman Avenues in the Northeast Oak Cliff area of Dallas. The property contains approximately 20 apartment buildings, all but 3 of which are vacant. For the past 15 to 20 years, the City has been trying to bring the buildings on Plaintiff's property into compliance with the Dallas Building Code through the City's Department of Street, Sanitation, and Code Enforcement (Code Enforcement Department), its Urban Rehabilitation Standards Board (URSB), and the Texas state courts. Enforcement efforts have included four state court actions, the placement of hazard warning signs on the property and the issuance of numerous citations by the Code Enforcement Department, hearings before the URSB, and the demolition of certain buildings, pursuant to state court orders.
The Fifth Circuit provided a detailed description of the URSB in Freeman v. Dallas, 242 F.3d at 645,
The URSB was established by the City of Dallas to determine whether property condition reports filed by city inspectors identify violations of the City's building codes. The URSB comprises thirty private citizen members (and eight alternates) who are appointed by the Dallas City Council. The URSB may determine, after a hearing, whether a given structure is an "urban nuisance" and take various remedial measures. The URSB is authorized by city ordinance to order repairs, receivership, the closing and vacating of buildings, demolition, and civil penalties of up to two thousand dollars a day against property owners who fail to repair or demolish a structure after the board has issued a valid determination and remedial order. DALLAS, TEX., CODE ch. 27, art. II, § 27-8.
Because this court will not reach the issue of the constitutionality of the URSB and its enabling legislation, Chapter 27 of the Dallas City Code, further description of the URSB is unnecessary at this time.
One of the state court actions, filed by the Plaintiff after the URSB ordered the demolition of certain buildings on the Plaintiff's property, resulted in a settlement agreement between the Plaintiff and the City in May 1996. Pursuant to this agreement, the Plaintiff provided the City with an inspection report in July 1996, which indicated that the Plaintiff had not made the improvements agreed upon in the state court settlement. An external inspection by Dallas Code Enforcement Officer Harry Pate, in March 1997, revealed that the agreed upon improvements had still not been made. Based upon that external inspection, Officer Pate submitted an affidavit to a Dallas County Magistrate and requested a warrant authorizing an internal inspection of the property.
A search warrant was issued on April 1, 1997 for "25/2600 Birdsong Drive, 1100 Diceman Avenue, Blocks A B/7529 7530." (Def. App. 35.) The warrant further described the property to be searched as "the multi family structures located in the 2500/2600 Birdsong Drive, 1100 Diceman Avenue . . . said premises being described as a two-story brick/wood frame structure red/tan in color. . . ." (Def. App. 36.) Code Enforcement Officers and members of the Dallas Police Department executed the warrant on that same day, finding multiple violations of the Housing Code. As a result, the Officers attached warnings to all vacant structures stating that the structures were in a hazardous condition, and that occupancy was prohibited. The Officers issued notices of violations by the end of April. The property was then referred to the URSB, and on approximately November 26, 1997, the Plaintiff received notice of a hearing to be held on December 16, 1997. It is not clear from the evidence submitted whether this hearing was ever held, but no further action has been taken by the URSB since the end of 1997.
On December 31, 1997, the Plaintiff filed this suit, based on the April 1, 1997 search and placement of warning signs, and on the anticipated future actions of the URSB, pursuant to Chapter 27 of the City Code. Since the commencement of this suit, several factual developments have occurred. First, the City has ceased all enforcement against the Plaintiff through the URSB, and has instead instituted a lawsuit in state court pursuant to Chapter 54 of the Texas Local Government Code and the Texas common law of nuisance. The state court recently granted partial summary judgment in favor of the City, finding 19 buildings on the Plaintiff's property to be nuisances and to be in violation a number of City ordinances. The court ordered the Plaintiff to repair the property, remedy the violations, and abate the nuisances.
The second factual change occurred prior to the state court judgment, when the Plaintiff sold the property to the Birdsong Management Company, retaining a mortgage on the property. Birdsong was subsequently joined as a Defendant in the state court action. The final development is the recent amendment of Chapter 27 of the City Code. Neither party submitted a copy of either the original or amended version of the ordinance, though the parties' briefs reflect disagreement over whether the amendments address the Plaintiff's concerns.
Discussion
This court will dispose of all of the motions before it by addressing the Defendant's Motion for Summary Judgment. This Motion and the Defendant's Motion to Dismiss rely on almost identical grounds, with the Motion for Summary Judgment providing a more thorough analysis of the issues. Moreover, addressing the Motion for Summary Judgment will enable this court to consider evidence outside of the Amended Complaint, thus enabling a more informed decision. Finally, because the Plaintiff's pending Motion for Summary Judgment was filed prior to its First Amended Complaint, and does not account for the factual developments in this case, this court will first address the Defendant's Motion for Summary Judgment, which will, as discussed below, render a consideration of the Plaintiff's Motion unnecessary.
I Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment only when the moving party demonstrates that there is no genuine issue as to any material fact and the party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);Melton v. Teachers Ins. Annuity Assoc. of Am., 114 F.3d 557, 559 (5th Cir. 1997). The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact. See Celotex Corp., 477 U.S. at 323.
Once the movant has discharged its initial burden under Rule 56, the nonmovant must set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial.Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir. 1992), cert. denied, 506 U.S. 825 (1992). In weighing the evidence, the court must decide all reasonable doubts and inferences in the light most favorable to the nonmovant. See Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988); Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion for summary judgment must be denied. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250 (1986).
II Claims Based on the April 1, 1997 Search and Placement of Warning Signs
Plaintiff requests damages, and declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 for alleged violations of its constitutional rights on April 1, 1997. Plaintiff claims that the search of its property and the posting of warnings by Dallas Code Enforcement Officers violated the Fourth Amendment prohibition against unreasonable search and seizure, the due process clause of the Fifth and Fourteenth Amendments, and the "takings" clause of the Fifth Amendment. More specifically, the Plaintiff claims that the description of the property to be searched in the search warrant was deficient and that therefore the Officers went beyond the warrant's bounds when they searched the Plaintiff's property. Because the search itself was unlawful, the Plaintiff argues, the resulting "seizure," in the form of placing warnings on certain buildings, was also unlawful. Moreover, the Plaintiff asserts that the placement of the warning placards constituted a "taking" for which the Plaintiff did not receive just compensation, and the placement of the warning placards without a prior hearing violated the Plaintiff's due process rights.
The Plaintiff has failed to adduce evidence to support these claims against the City of Dallas. A municipality may not be held liable for the acts of its non-policy-making employees under a theory of respondeat superior. See Monell v. Dep't. of Social Services, 436 U.S. 658, 691 (1978); Colle v. Brazos County Texas, 981 F.2d 237, 244 (5th Cir. 1993). Instead, "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) (citing, Monell, 436 U.S. at 694).
The allegedly unlawful acts in this case were carried out by City Code Enforcement Officers. The Plaintiff has offered no argument or evidence to demonstrate that these officers are policymakers. Moreover, Fifth Circuit case law holds that absent evidence to the contrary, Code Enforcement Officers are not policymakers, they merely carry out the policies of their employer, the city. See Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984); Criswell v. City of Texas, 2001 WL 609480, 3 (N.D. Tex.). Thus, the Plaintiff must ultimately prove that the Officers were acting pursuant to an official policy that was implemented by an actual policymaker, such as the City, the Code Enforcement Department, or the URSB. See Criswell, 2001 WL at 3 (reiterating the court's prior holding that the URSB is a policymaker for purposes of establishing municipal liability).
An official policy can take the form of "a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated," or "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." Criswell, 2001 WL at 3 (citing, 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) (citation omitted)). The Plaintiff has failed to even allege that a policymaking entity maintained an official or unofficial policy of issuing defective search warrants for code violation inspections, of going beyond the scope of search warrants issued for code violation inspections, or of failing to properly train Code Enforcement Officers as to the proper way to apply for and execute a search warrant. Therefore, the Plaintiff has failed to state a claim against the City for the unlawful search of its property.
Plaintiff has also failed to adduce sufficient evidence to demonstrate that the Officers were acting pursuant to an official policy or practice when they "seized" or "took" the Plaintiff's property by placing warning signs on the vacant buildings. The only evidence submitted is less than two pages of deposition testimony in which Ramiro Lopez, a man whose position has not been revealed to this court, states that he believes a "policy procedures manual" describes when a "red tag is or is not to be used." (Def. App. Ex. 5, p. 56.) This evidence does not raise a genuine issue of material fact regarding whether the City maintained an official policy or practice regarding the placement of warning signs on private property. Moreover, even if such evidence did raise a fact issue, there is no evidence that the "policy" was the moving force behind a constitutional violation. Monell, 436 U.S. at 694. The Plaintiff has provided nothing, beyond conclusory assertions, to demonstrate how the posting of warning signs constituted a seizure or taking of buildings that had been vacant for the past 15 to 20 years.
The Defendant's Motion demonstrates the absence of a genuine issue of material fact as to the City's liability for the events of April 1, 1997. See Celotex Corp., 477 U.S. at 323. The Plaintiff, on the other hand, has failed to meet its burden of demonstrating that triable issues actually do exist. See Topalian, 954 F.2d at 1132. Therefore, the Defendant's Motion for Summary Judgment on the claims related to the April 1, 1997 search are hereby GRANTED.
III Claims for Injunctive and Declaratory Relief
The Plaintiff also asks this court to enjoin the City from enforcing Chapter 27 of the City Code, from demolishing property, conducting hearings, executing search warrants for the purpose of enforcing Chapter 27, placing red placards on private property without a judicial hearing, exacting fines against lienholders without control of property, exacting fines against corporate officers, managers or employees without control of property, and exacting fines for "any portion of a day." This request is based, in part, on the past actions of the City, specifically, the events of April 1, 1997. However, the primary basis of the Plaintiff's claim for prospective relief is the Plaintiff's contention that Chapter 27 of the City Code suffers from a variety of constitutional defects and thus should not be enforced against the Plaintiff or any third-parties in the future.
As discussed above, the events of April 1, 1997 do not provide grounds for relief. Moreover, neither the original, nor the amended version of Chapter 27 has been enforced against the Plaintiff or its formerly-owned property since December 1997. As stated by the Supreme Court of the United States,
The Defendant also challenged Plaintiff's standing to request injunctive relief based on the fact that the Plaintiff no longer owns the property. Plaintiff argues that it derives standing from the fact that it retained a mortgage in the property. This court need not resolve this issue since the Plaintiff would not have standing even if it were the owner of the property in question.
Federal courts are courts of limited jurisdiction. They have the authority to adjudicate specific controversies between adverse litigants over which and over whom they have jurisdiction. In the exercise of that authority, they have a duty to decide constitutional questions when necessary to dispose of the litigation before them. But they have an equally strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration. A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.County Court of Ulster Co. v. Allen, 442 U.S. 140, 154-55 (1979) (citing, e.g., New York Transit Authority v. Beazer, 440 U.S. 568, 582-583, 99 S.Ct. 1355, 1363-1364, 59 L.Ed.2d 587;Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (and cases cited)). The only action taken by the City against the Plaintiff since 1997 has been the initiation of a state court suit pursuant to Chapter 54 of the Texas Local Government Code and the Texas common law of nuisance. The City has not attempted to enforce Chapter 27 against the Plaintiff, nor has the Plaintiff provided evidence that such enforcement is imminent. Moreover, the Plaintiff does not appear to be asking this court to intervene in the state court action, nor has the Plaintiff provided any legal authority to support such intervention. Therefore, the Plaintiff does not have standing to seek this court's power to enjoin the City from enforcing Chapter 27 and its attendant regime of building code compliance. The Defendant's Motion for Summary Judgment as to the Plaintiff's claims for injunctive and declaratory relief is therefore GRANTED.
IV Claims Under the Texas Constitution
The Plaintiff's final claim is that the City's conduct and its building code regime violate the Plaintiff's rights under three provisions of the Constitution of the State of Texas. However, Texas law does not provide a cause of action for constitutional violations. See Aston v. City of Cleburne, 2000 WL 217876, 3 (citing, Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995); Gillum v. City of Kerrville, 3 F.3d 117 (5th Cir. 1993)). Therefore, Defendant's Motion for Summary Judgment on Plaintiff's claims under the Texas Constitution is hereby GRANTED.
Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED in full and the Plaintiff's claims are DISMISSED WITH PREJUDICE. Because all claims have been dismissed, this court need not address the remaining motions.It is so ORDERED.