Young v. Sprint Spectrum, L.P.

Full title: HAROLD YOUNG v. SPRINT SPECTRUM, L.P., et al

Court: United States District Court, E.D. Louisiana

Date published: Dec 20, 2001

Civil Action No. 00-3523, Section M (E.D. La. Dec. 20, 2001)

Opinion

Civil Action No. 00-3523, Section M

December 20, 2001

ORDER

PETER BEER, United States District Judge.

Before the Court is a Motion for Summary Judgment filed by Sprint Spectrum, L.P., (hereafter "Sprint") which came for hearing with oral argument on December 12, 2001. Summary Judgment was previously granted in favor of Gulf Coast Real Estate Consultants and partial summary judgment was granted in favor of Professional Construction Services, reserving plaintiffs claims with respect to pile driving damages.

Sprint seeks summary judgment contending that the deadline for discovery has passed and that plaintiffs have failed to come forth with sufficient evidence to prove the claims asserted herein.

Summary judgment is appropriate if the record discloses "that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, (1986). "Once the movant produces such evidence, the nonmovant . . . must come forward with evidence establishing each of the challenged elements of its case for which the nonmovant will bear the burden of proof at trial. The nonmovant can satisfy its burden by tendering depositions, affidavits, and other competent evidence to buttress its claim. . . . Summary judgment is appropriate, therefore, if the nonmovant fails to set forth specific facts, by affidavits or otherwise, to show there is a genuine issue for trial." Rizzo v. Children's Learning Center, 84 F.3d 758, 762 (5^th Cir. 1996), citing Topalian v. Ehrman, 954 F.2d 1125, 1131-31 (5^th Cir.), cert. denied, 506 U.S. 825 (1992).

Plaintiffs' claims against Sprint are as follows: 1) conspiracy with the City of New Orleans to deprive plaintiffs of due process and equal protection without a public hearing, 2) racial discrimination in placing the monopole in a minority neighborhood, 3) causing fear of health concerns arising from the proximity of the monopole to their residences. 4) violation of local zoning laws in locating the monopole near a residential neighborhood, 5) property damage due to pile driving in violation of La. Civ. Code art. 667, 6) violation of nuisance law and La. Civ. Code art. 2315 because of a humming sound emitting from the cell tower.

After a review of the evidence, the Court concludes that plaintiffs have failed to satisfy their burden of identifying competent evidence to buttress their claims, except with respect to certain nuisance claims and the claims of damages caused by pile driving.

Plaintiffs have come forth with no evidence which suggests that Sprint acted under color of state law or in concert with the City of New Orleans to deprive plaintiffs of any civil rights arising under the Constitution or the laws of the United States, or that Sprint engaged in intentional discrimination in the placement of the monopole in their neighborhood. Plaintiffs submitted the building permit which was issued by the City of New Orleans, alleging that because the permit was obtained in the name of Greater St. Stephen Ministries, it somehow was fraudulent. However, a review of the permit indicates that the property owner is, in fact, Greater St. Stephen Ministries and that the permit states that it is for construction of a monopole. Nothing on the face of the permit or in any other evidence submitted by plaintiffs suggests any impropriety on behalf of the City of New Orleans or Sprint.

Plaintiffs also submitted an affidavit of Silas Lee, a sociologist and political opinion researcher, who characterizes the neighborhood where the monopole is located as a low-income African-American neighborhood. However, this evidence standing alone does not support plaintiffs claims that a constitutional deprivation or other discrimination has occurred. Accordingly, plaintiffs claims of equal protection and due process violations arising under the Fourteenth Amendment to the Constitution and plaintiffs claims of discrimination arising under 42 U.S.C. § 1981, et seq. are dismissed.

Plaintiffs' claims of health related risks due to the proximity of the monopole to their residences also do not pass Rule 56(c) muster. Plaintiffs submitted an internet article on cell phone usage and one plaintiffs deposition testimony that her father has been diagnosed with a brain tumor. Defendant produced testimony of an expert on radio frequency emissions who stated that the radio frequencies are well below the standards allowed by the Federal Communications Commission. Plaintiffs have come forth with no evidence to contradict this testimony, nor have plaintiffs provided any causal connection whatsoever with the alleged brain tumor and emissions from the monopole. Accordingly, all health related claims from exposure to the monopole are unsupported by the evidence and are dismissed.

Next, plaintiffs claim that the pole inappropriately abuts residential property in violation of local zoning laws. In support of this claim, plaintiffs contend that the monopole is 50 feet from a public school.¹ Plaintiffs also quote Sprint's real estate consulting firm which stated that the property on which the monopole was constructed was, in fact, residential. However, defendants have produced evidence that the placement of the monopole complies with all zoning regulations. Thus, these claims are without merit and are dismissed.

1 Plaintiffs admit that there has been no action by the school board or any other entity on behalf of the public school against the placement of this monopole.

Plaintiffs remaining claims allege a constant humming sound coming from the tower and property damage due to pile driving. Plaintiffs submit deposition testimony. of one plaintiff who reports a constant humming sound emitting from the monopole. The determination of a nuisance is a question of fact and this analysis requires consideration of factors such as the character of the neighborhood, the degree of intrusion privacy and the effect of the activity on the health and safety of the neighbors.Barrett v. T.L. James Co., 671 So.2d 1186 (La.App. 2d Cir.), writ denied, 674 So.2d 973 (La. 1996); A to Z Paper, Inc. v. Carlo Ditta, Inc., 775 So.2d 42, 47 (La.App. 4^th Cir. 2000). Accordingly, with respect to this particular plaintiff and the noise claim, issues of fact preclude summary judgment at this time.

In support of the pile driving damages contention, plaintiffs produced estimates for foundation repair and their own testimony about when the damage occurred. Because factual issues remain as to causation of the foundation damage, the Court denies summary judgment on the pile driving damages claim.

Thus, for the foregoing reasons;

IT IS ORDERED that Sprint's Motion for Summary Judgment is GRANTED IN PART. IT IS FURTHER ORDERED that there being no remaining claims over which this Court has original jurisdiction, this case is hereby REMANDED to state court pursuant to 28 U.S.C. § 1367 (c)(3).