Opinion
Civil Action No. 04-0461 SECTION "K"(3).
July 12, 2004
Before the Court is a Motion by the City of New Orleans and Winston Reid to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted, Alternatively for More Definite Statement (Doc. 9). Having heard oral argument and having reviewed the pleadings, memoranda and the relevant law, the Court finds as follows.
Background
Plaintiff on February 17, 2004 filed this civil rights suit for damages "authorized and instituted" pursuant to 42 U.S.C. § 1983 against the City of New Orleans and Winston Reid, in his capacity as the Director of the City Department of Housing, Code Enforcement (Complaint ¶¶ 2 3). Plaintiff owns a parcel of immovable property bearing municipal number 3628-30 Washington Avenue, New Orleans, Louisiana; he allegedly acquired the property on November 30, 1982. He maintains that he was "in a period of hiatus from renovating the property due to lack of funds to renovate and inability to contact the previous contractor." (Complaint ¶ 9).
On February 27, 2004, an Amended Complaint was filed adding Mr. Reid to the caption of this case.
Plaintiff alleges that on February 19, 2003, Crescent Environmental was hired for the demolition of this property and a Notice to Proceed was received by the demolition company on February 20, 2003. On or about March 6, 2003, plaintiff discovered that his double was demolished. He contends he never received any notice from the City of New Orleans regarding this property prior to its demolition. (Complaint ¶ 12 and 13).
Plaintiff contends that the defendants demolished the building without authority as required by Louisiana statute and Ordinance Number 26-260 of the Code of City of New Orleans which deprived plaintiff of his property without his constitutional right to due process of law as secured by the Fifth and Fourteenth Amendments to the Constitution of the United States. Plaintiff maintains that:
These actions by defendants were carried on under color of City and State law and under color of custom and usage required and enforced by officials of the City. Such actions by defendants have deprived plaintiff of his right to due process and equal protection of the laws as guaranteed by the Fifth and Fourteenth Amendment of the Constitution of the United States and constitutes a deprivation of plaintiff's property as secured by the Fifth and Fourteenth Amendments, and by 42 U.S.C. § 1983.
These actions by defendants were also a violation of the plaintiff's State rights under Articles 1 and 6 of the Constitution of the State of Louisiana, and Sections 33:4721 et seq., 33:4752, 33:4753 and 33:4766 of the Louisiana Revised States and pursuant to Ordinance Number 26-260 of the Code of the City of New Orleans.
(Complaint, ¶¶ 17 and 18).
The Instant Motion
The City of New Orleans ("the City") and Winston Reid ("Reid") (referred to collectively as the defendants) filed the instant motion contending that the complaint fails to state a claim because plaintiff fails to plead specific facts which would entitled him to relief. Defendants contend that the complaint does not plead sufficiently any policy, custom or pattern of the City or of Reid. Furthermore, with respect to Reid, defendants maintain that he is entitled to qualified immunity. In the alternative, defendants seek pursuant to Fed.R.Civ.P. 12(e) a more definitive statement of his claims.
Analysis
Standard Under Rule 12(b)(6)
A court may dismiss a claim for "failure to state a claim upon which relief can be granted" pursuant to Fed.R.Civ.Pro. 12(b)(6). In considering a Rule 12(b)(6) motion, the court must accept plaintiff's factual allegations as true and view them in the light most favorable to the plaintiff. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.), cert. denied, 513 U.S. 868, 115 S.Ct. 189, 130 L.Ed.2d 122 (1994). Though the Court may not look beyond the pleadings, Id., the court may take into account matters of public record, orders, items appearing on the record of the case and exhibits attached to the complaint. 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, § 1356 (2d ed. 1987). A court should not dismiss a complaint pursuant to Rule 12(b)(6) unless it appears "beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief." Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir. 1995), citing, Conley v. Gibson, 355 U.S. 41, 44-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
Due Process
As stated recently by the Supreme Court:
The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property without "due Process of law." From these "cryptic and abstract words." Mullane [v. Central Hanover Bank Trust, Co., 339 U.S. 306, 70 S.Ct. 652 (1950)], supra, at 313, 70 S.Ct. 652, we have determined that individuals whose property interests are at stake are entitled to "notice and an opportunity to be heard." United States v. James Daniel Good Real Property, 510 U.S. 43, 48, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993).Dusenbery v. Unite States, 112 S.Ct. 694, 699 (2002). Thus, the Supreme Court has stated unequivocally that the notice required must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. at 700 citing Mullane at 314, 319, 70 S.Ct. 652. "(The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.)"
In the case at bar, the allegations are of no notice received. Accordingly, a distinct, separate claim for a deprivation of plaintiff's due process rights under the Fifth and Fourteenth Amendment clearly has been stated. Cannon v. City of New Orleans, 1997 WL 104981, *1 (E.D.La. 1997).
Section 1983 Claims
To prevail under a Section 1983 claim, the issue becomes whether there is some "custom, policy or practice deprived [him] of [his] property without due process of law." Id. citing Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018 (1978). While it is true that the allegations with respect to the City and Reid in his official capacity are conclusory to some extent, heightened pleading requirements with respect to municipalities has been jettisoned. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160 (1993). Nonetheless:
To show an unconstitutional policy or custom, the plaintiff must identify the policy or custom, connect the policy of custom with the government entity itself, and show that the particular injury was incurred because of the execution of that policy. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc); Lee v. Morial, 2000 WL 726882 (E.D. La. June 2, 2000). If plaintiff fails to allege an official policy or custom, then his claim is subject to dismissal. See Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532-33 (5th Cir. 1996).Craft v. City of New Orleans, 2004 WL 193134, *3 (E.D.La. Jan. 30, 2004).
In Cannon, a house had been demolished and plaintiff claimed to have received no notice. Judge Clement was presented with deposition testimony that demonstrated that the City of New Orleans (at that time) issued demolition permits without notice to the owner despite the prior existence of a building permit. She stated in denying a motion for summary judgment, "A reasonable trier of fact could find that the City had a custom, policy or practice of issuing building permits and demolition permits willy-nilly; that that custom, policy or practice entitled plaintiff to a new notice and hearing to comport with due process; and that the City failed to provide such notice." Cannon at *3.
Likewise, the Court was presented contradictory documentary evidence concerning the evaluation of the status of the property at issue herein. Apparently, in 2002, the structure was found to be in imminent danger of collapse; however, a building permit issued thereafter. Then in 2003, an inspector apparently noted improvements to the structure. Nonetheless, the building was demolished in 2003. As such, a Rule 12(b)(6) motion is misplaced. Nonetheless, plaintiff must amend his complaint to state with greater specificity what "customs, practices or policies" caused his injury. Thus, the Rule 12(e) motion shall be granted in this regard.
Reid-Official Capacity/Individual Capacity
After a close reading of the Complaint, it appears to the Court that plaintiff has only alleged claims against Reid in his official capacity. If so, the analysis above holds equally applicable as a person sued in his official capacity is regarded as a political subdivision and is not entitled to qualified immunity. Under these circumstances, the Rule 12(b)(6) motion is without merit; however, the Rule 12(e) motion shall likewise be granted in this regard.
If indeed, plaintiff seeks to sue Reid in his individual capacity, the complaint is lacking "Personal-capacity suits which seek to impose individual liability upon a government officer for actions taken under color of state law are recognized under § 1983." Craft, citing Hafer v. Melo, 502 U.S. 21, 25, 211 S.Ct. 358, 116 L.Ed.2d 301 (1991). This Court continued:
A state official can be sued in his individual capacity and be held personally liable under § 1983 if it can be shown that the official, acting under color of state law, caused the deprivation of a federal right. Hafer, 502 at 25-31. However, such persons are entitled to assert personal immunity defenses such as objectively reasonable reliance on existing law or, qualified immunity. Id.
Furthermore, the Fifth Circuit has held that a heightened pleading requirement remains.
Thus, to the degree that plaintiff seeks to state a claim against Reid in his individual capacity, the Court will grant the Rule 12(e) motion for more definite statement. It is clear that the qualified immunity analysis entails a two-step process:
First, a court must determine whether plaintiff has alleged the violation of a constitutional right. Second, if the plaintiff has alleged a constitutional violation, the court must decide if the conduct was objectively reasonable in light of clearly established law at the time the challenged conduce occurred.Glen v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001) (citations omitted). In order to survive a qualified immunity defense, a plaintiff must articulate specific conduct and action giving rise to a constitutional violation. Mahrous v. O'Brien, 1998 WL 166189, *1-2 (E.D.La. April 8, 1998), citing Shultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995). Thus, in addition, it will require plaintiff to respond to Reid's allegations of qualified immunity pursuant to Fed.R.Civ.P. 7(a) as required under Shultea.
Finally, at oral argument, mention was made as to the City's reluctance to participate in discovery. Considering that the Court has held that there is a viable due process claim against the City, and it appears that qualified immunity may not be at issue, any further delay in the parties discharging their Rule 26 obligations is ill-founded. Gilbert v. The City of Dallas, 2000 WL 748153, *3 (N.D.Tex. June 8, 2000). Accordingly,
IT IS ORDERED that Motion by the City of New Orleans and Winston Reid to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted, Alternatively for More Definite Statement (Doc. 9) is DENIED with respect to Rule 12(b)(6) and GRANTED with respect to Rule 12(e). In the event plaintiff intended to proceed against Reid in his individual capacity, the amended complaint should so state and a Shultea reply under Fed.R.Civ.P. 7(a) should be filed.
IT IS FURTHER ORDERED that the Rule 12(e) and if applicable Rule 7(a) statement shall be filed on or before August 4, 2004.
IT IS FURTHER ORDERED that the appropriate discovery pursuant to Fed.R.Civ.P. 26 shall proceed forthwith.