Opinion
CASE NO. 8:02CV554
July 7, 2003
MEMORANDUM AND ORDER
Before the Court is the Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim, submitted by Defendant Robert Fuxa (Filing No. 11), and the Motion to Dismiss of Defendant Village of Cedar Creek, Nebraska (Filing No. 13). Fuxa and the Village of Cedar Creek (the "Village") have submitted briefs in support of their respective motions (Filings Nos. 12 and 14). The Plaintiff, Katherine W. Metzger, Trustee of The Katherine W. Metzger Revocable Trust ("Metzger"), submitted a brief in opposition to both motions (Filing No. 17). Both Defendants moved the Court for permission to submit reply briefs, and permission was granted. The reply briefs appear at Filing Nos. 19 and 21. Metzger submitted an additional brief (Filing No. 23) in response to the Defendants' reply briefs, but did not seek or receive leave of Court for the submission of that brief, and so it will not be considered.
FACTS
All facts as alleged in Metzger's Complaint (Filing No. 1) are presumed to be true for purposes of the Court's analysis of the motions to dismiss. The following facts are derived from the Complaint.
Metzger owns a 329-acre farm near the Village. Fuxa is a land developer who owns approximately 60 acres of land adjacent to Metzger's farm. Turkey Creek divides the properties. Historically, when Turkey Creek has flooded, it has spilled over its bank onto Fuxa's land.
In 1978, the Village adopted certain regulations promulgated by the Federal Emergency Management Agency ("FEMA") concerning the designation and management of floodways and floodplains within the Village, in order to qualify for participation in the National Flood Insurance Program ("NFIP") administered by FEMA. Part of Fuxa's land is within a floodway on which structures are not permitted under Village ordinances and FEMA regulations.
In 1998, Fuxa pushed soil and debris along his side of Turkey Creek, raising the bank as much as 11 feet above its natural level. Fuxa's earthen levee is at least 200 feet in length. Fuxa's construction of the levee was "with the consent, cooperation and encouragement of the Village." The levee protects homes and private lakes in the Village from flooding, and thereby enhances the value of property within the Village and increases the Village's revenues realized from taxes and fees on such property.
On July 6, 1999, Metzger demanded that Fuxa remove the levee. On October 25, 1999, Metzger demanded that the Village require Fuxa to remove the levee. In 2000, a representative of the Nebraska Natural Resources Commission "demanded" that sections of the levee be removed to prevent flooding of Metzger's property. In 2000, 2001 and 2002, FEMA "required" immediate removal of the levee, upon penalty of the Village's loss of NFIP eligibility. Neither Fuxa nor the Village took action to remove the levee.
On August 22, 2002, heavy rain diverted by the levee caused Metzger's private lake to be flooded, resulting in silt deposits in the lake. Future flooding of Metzger's land due to the levee's diversion of water may cause damage to Metzger's lake, crops, and wildlife habitat, and diminish the value of approximately 60 acres of her farm land. Fuxa has constructed a private lake on his land and is preparing the land for subdivision for the construction of residential homes.
Based on these alleged facts, Metzger asserts that Fuxa and the Village have conspired to take her property without just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983, and that the unlawful taking also violates Article I, § 21, of the Nebraska Constitution, and common law.
ANALYSIS
The Defendants have moved to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. When evaluating these motions, the Court accepts all the factual allegations in the Complaint as true, and makes every reasonable inference in favor of the Plaintiff. Stone Motor Co. v. General Motors Corp., 293 F.3d 456, 464 (8th Cir. 2002); Brotherhood of Maintenance of Way Employees v. Burlington Northern Santa Fe R.R., 270 F.3d 637, 638 (8th Cir. 2001).
Lack of Subject Matter Jurisdiction
The Complaint invokes this Court's jurisdiction pursuant to 28 U.S.C. § 1331, which grants federal jurisdiction to United States District Courts in civil actions arising under the Constitution, laws, or treaties of the United States. Metzger also appears to invoke the Court's supplemental jurisdiction over state claims under the Nebraska Constitution, Nebraska common law, and Neb. Rev. Stat. §§ 25-1062, et seq. (Reissue 1995), which provides for injunctive relief in certain matters.
If Metzger's federal claims are not ripe, this Court lacks subject matter jurisdiction over those claims. Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 732 (1998) ; Missouri Soybean Ass'n v. U.S.E.P.A., 289 F.3d 509, 512 (8th Cir. 2002). The Court may decline to exercise supplemental jurisdiction when the court has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3).
The Defendants contend that Metzger's federal claims are not ripe, because she has not sought compensation through available state remedies. The Defendants note that under Nebraska law, a property owner who has suffered damage to his or her property, due to action by a political subdivision of the state, may seek relief through the Political Subdivisions Tort Claims Act, (Neb. Rev. Stat. §§ 13-901 through 13-926 (Reissue 1997)), a statutory action for inverse condemnation (Neb. Rev. Stat. §§ 76-701 through 76-726 (Reissue 1996)), or a constitutional action for inverse condemnation (Neb. Const., art. I, § 21 ; Dishman v. Neb. Pub. Power Dist., 240 Neb. 452, 453, 482 N.W.2d 580, 582 (1992)). Because Metzger has not availed herself of any of these remedies, the Defendants argue that she has not been denied just compensation and her claims are not ripe for review in this Court.
In Williamson Co. Reg'l Plan. Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the Supreme Court held that a bank's claim under 42 U.S.C. § 1983 for deprivation of property without due process or just compensation based on the enforcement of certain zoning regulations was not ripe because the bank had not obtained a final decision regarding the application of the zoning ordinance, nor had it availed itself of a state procedure to seek just compensation for the property loss. The Court said, "if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation." Id. at 195. Distinguishing this process from the concept of exhaustion, the Supreme Court said, "because the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a § 1983 action." Id. at 195, n. 13.
Metzger cites to the case of McKenzie v. City of White Hall, 112 F.3d 313, 317 (8th Cir. 1997), for the proposition that when the government takes private property without a "justifying public purpose" a constitutional violation has occurred whether compensation is paid or not. In her brief, Metzger contends that her property was taken for the private use of Fuxa, in violation of her rights to substantive due process and equal protection. She alleges, therefore, that there was no "justifying public purpose" in the taking, and she should not be required to seek just compensation through state procedures before bringing this action.
The Complaint alleges that Fuxa and the Village acted in concert to take Metzger's property without just compensation, for the benefit of Fuxa and the Village. McKenzie makes clear the principle that "when the state provides an adequate process for obtaining compensation, no Fifth Amendment violation occurs until compensation is denied." Id. at 317. The requirement that a plaintiff seek compensation through available state procedures is not an exhaustion requirement, but a necessary predicate to showing that there has been any taking of property without just compensation. Id. Because Metzger has not alleged that she has availed herself of the remedies provided under Nebraska law for just compensation, and it appears to be undisputed that she has not pursued such remedies, her claims as stated in the Complaint are not ripe and the Court lacks subject matter jurisdiction over the claims.
Failure to State a Claim Upon Which Relief Can Be Granted
A motion to dismiss under Rule 12(b)(6) will only be granted if it is clear that no relief could be ordered under any set of facts that could be proved consistent with the allegations. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). This Court must accept all factual allegations as true and draw all reasonable inferences in favor of the non-moving party. Howard v. Coventry Healthcare, 293 F.3d 442, 444 (8th Cir. 2002).
The factual allegations against the Village are broad and conclusory. The Village as an entity is alleged to have given its "consent, cooperation and encouragement" to Fuxa as he constructed his levee. The regulations and ordinances which the Village is alleged to have failed to enforce are not attached to the Complaint, nor cited, quoted, or paraphrased; and it is not apparent that such regulations or ordinances provide Metzger with any rights or remedies. The mere approval or acquiescence of a state entity in the initiatives of a private party are not sufficient to establish state action under § 1983. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157-58 (1978). Only if the state entity has exercised coercive power or has provided significant encouragement, either overt or covert, can the action of a private party give rise to liability on the part of the state entity under Section 1983. Integrated Info. Serv., Inc. v. Mountain States Tel. Tel. Co., 739 F. Supp. 488, 493 (D.Neb. 1990).
To state a claim under § 1983, there must be a violation of a right protected by the United States Constitution or laws, by a person acting under color or law. Adickes v. S.H. Kress Co., 398 U.S. 144, 150 (1970). If not directly employed by the state or a political subdivision, the defendant must at least be acting under the authority of the state. West v. Atkins, 487 U.S. 42, 49-50 (1988). While the factual allegations against Fuxa are more specific than the allegations against the Village, and may well give rise to meritorious claims against Fuxa which could be asserted in state court, the only allegation that Fuxa acted under color of law, bringing Metzger's claim against him under the jurisdiction of this Court, is the broad and conclusory statement that he "conspired" with the Village to take Metzger's property without just compensation.
A conspiracy is actionable under Section 1983 only if there has been an actual deprivation of rights secured by the United States Constitution or laws. See, e.g., Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995); Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980); Lesser v. Braniff Airways., Inc., 518 F.2d 538, 540 (7th Cir. 1975). Because Metzger has not availed herself of state remedies to seek just compensation for the alleged taking, a constitutional violation has not yet occurred; the claim is not ripe for review in this Court; and it is therefore not a claim upon which relief can be granted.
IT IS ORDERED:
(1) Defendant Robert Fuxa's Motion to Dismiss (Filing No. 11) is granted under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted;
(2) Defendant Village of Cedar Creek's Motion to Dismiss (Filing No. 13) is granted under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted; and
(3) Plaintiff's Complaint is dismissed without prejudice.