Opinion
CIVIL ACTION No. 02-2635-KHV
February 13, 2004
MEMORANDUM AND ORDER
James L. Bolden brings suit against the City of Topeka, alleging that it violated 42U.S.C. § 1981, 1982, 1983 and 1985 and the Fair Housing Act, 42 U.S.C. § 3604 and 3605. This matter comes before the Court onDefendant City Of Topeka's Motion To Dismiss (Doc. #17) filed May 23, 2003. For reasons stated below, the Court sustains the motion.
Facts
Plaintiff's second amended complaint alleges the following facts:
On April 29, 2003, plaintiff filed his Amended Complaint For Declaratory And Injunctive Relief (Doc. #13). On May 23, 2003, the City filed its motion to dismiss. Two months later, on July 23, 2003, plaintiff filed a motion to again amend his complaint. Motion For Leave To Amend Complaint To Include Damages (Doc. #30). Magistrate Judge James P. O'Hara granted plaintiff leave to amend, seeOrder (Doc. #32) filed August 7, 2003, and on August 15, 2003, plaintiff filed his Second Amended Complaint (Doc. #35). The allegations in plaintiff's second amended complaint are substantially similar to those in his first amended complaint except that the first amended complaint names McPherson Construction and the U.S. Department of Housing and Urban Development and the second amended complaint does not. Plaintiff's second amended complaint also includes a prayer for monetary relief. Id. at 45-46.
Plaintiff, an African American who resides in Topeka, Kansas, owns and runs a janitorial business which is designated as a disadvantaged business enterprise and is eligible for SBA 8a designation in federal contracting. On August 29, 2001, plaintiff purchased two houses — one at 1146 Washburn and the other at 421 Southwest Tyler — at a Shawnee County Sheriff's sale. The county officer who conducted the sale represented to plaintiff that the properties were repairable for residential use. Plaintiff inspected the properties and determined that they were structurally sound and in a neighborhood which was convenient to the downtown area. After plaintiff purchased the properties, a Shawnee County counselor advised him that he should not expend funds to repair the properties for a year because the prior owner retained a right to redeem.
Plaintiff's second amended complaint does not define "disadvantaged business enterprise" or "SBA 8a."
A. 1146 Washburn
On August 30, 2001, the day after he purchased the properties, plaintiff received a call from Kevin Rooney, an employee at the Topeka Housing and Neighborhood Development agency. Rooney offered plaintiff $5,000.00 for the property at 1146 Washburn. Rooney advised plaintiff that the City was supposed to obtain the property to tear it down, but that it had slipped through its hands. Plaintiff declined Rooney's offer because it was significantly less than the county appraised value of $37,000. At that time, plaintiff did not know that the Code Compliance Services section of the City/County consolidated government planning department had held a hearing on August 6, 2001, and determined that the property would be removed or demolished in 30 days because it was unfit for humanhabitation and repair was not possible at a reasonable cost.
The complaint does not indicate whether Rooney made this offer on his own behalf or on behalf of the City.
When plaintiff learned that the City had scheduled his property for demolition, he called the Code Compliance Services section. On October 15, 2001, he participated in an administrative hearing. At the hearing, plaintiff was questioned about his level of education and his ability to finance the project, repair the house and manage the rehabilitation project. The hearing officer dismissed plaintiff's plan to obtain federal rehabilitation funds, stating that the City had exhausted all such funds. Plaintiff explained that he had applied for federal funds and that his banker had committed to finance any amount which government matching funds did not cover.
B. 421 Southwest Tyler
On January 23, 2002, plaintiff was notified that the property at 421 Southwest Tyler was unfit for human use or habitation. At an administrative hearing on March 18, 2002, plaintiff stated that he intended to obtain federal funds and a private bank loan to rehabilitate the property. The City determined that the property was unfit and ordered demolition. Later, a neighbor saw a man removing limestone steps from the property and called the police. The police did not charge the man, who was a captain in the Topeka Fire Department, but at plaintiff's request, the fire chief instructed him to call plaintiff. The captain explained to plaintiff that it was common practice to take valuable items from houses which the City planned to demolish.
In his second amended complaint, plaintiff alleges that this hearing was held on March 18, 2001. The Court assumes that this is a typographical error, as plaintiff did not obtain the property until August of 2001.
The City refused to issue building permits for 1146 Washburn and 421 Southwest Tyler. It retaliates against citizens who question or criticize its management of federal housing funds, and it has demolished properties to confiscate land from minority and socially disadvantaged owners, so that businesses which are associated with city officers can develop it.
C. Plaintiff's Janitorial Contract With The City
At an administrative hearing regarding one of plaintiff's properties, the City learned that plaintiff had mortgages on the properties and that his primary source of income was a janitorial contract with the City. Shortly after this hearing, the City notified plaintiff that it would not renew his janitorial contract. The City had previously promised to renew plaintiff's contract in return for good performance. Plaintiff was surprised by the non-renewal, which occurred shortly after the City had unilaterally increased his compensation and even though the City had no complaints about his service.
The City does not disrupt renewal contracts for white or majority-owned janitorial contractors, but it has a history of limiting the number of African American janitorial contractors.
D. Plaintiff's State Court Litigation
On some unspecified date, plaintiff delivered to the City clerk a notice of claim under K. S. A. § 12-105b. The notice alleged (1) retaliation against plaintiff for engaging in protected speech at various administrative hearings regarding the demolition of his properties, in violation of42U.S.C. § 1983; (2) race discrimination in violation of 42 U.S.C. § 1981; and (3) criminal administration of federal housing funds. Second Amended Complaint (Doc. #35) at 17.
On November 9, 2001, in the Shawnee County District Court, plaintiff filed a petition for temporary and permanent injunctions against the City, the Code Compliance Services and the Housing and Neighborhood Development agency, to prevent demolition of his property at 1146 Washburn, enjoin the City from blocking his rehabilitation efforts and holding him liable for involuntary demolition costs, and secure a declaration that the City had misused federal funds. Plaintiff alleged that (1) the City was blocking his rehabilitation efforts at 1146 Washburn and 421 Southwest Tyler, causing him to lose his investment; (2) the City's rehabilitation calculations were unrealistic and rehabilitation was economically feasible; (3) the Topeka Housing and Neighborhood Development agency acted inconsistently and violated its guidelines when it avoided calls from plaintiff's banker; (4) the City wrongly sought to make plaintiff liable for involuntary demolition costs; and (5) the City violated plaintiff's Equal Protection and Due Process rights. On April 19, 2002, plaintiff also filed a petition in the Shawnee County District Court to enjoin demolition of his property at 421 Southwest Tyler.
Although the second amended complaint alleges that the state court action alleged a violation of plaintiff's equal protection and due process rights, plaintiff's state court petitions in fact do not allege that the City violated such rights, see Exhibits A and B toMemorandum In Support (Doc. #18), and the state court's journal entry does not address such claims, see Exhibit D toMemorandum In Support (Doc. #18).
The second amended complaint alleges that plaintiff challenged the demolition order and the City's finding that 421 Southwest Tyler was unfit for human use or habitation.
The brief in support of the City's motion to dismiss attaches plaintiff's petition for a temporary and permanent injunction as to 1146 Washburn, which plaintiff filed in the Shawnee County District Court on November 9, 2001, Exhibit A to Memorandum In Support (Doc. #18), and plaintiff's petition for a temporary and permanent injunction as to 421 Southwest Tyler, which plaintiff filed in the Shawnee County District Court on April 19, 2002, Exhibit B to Memorandum In Support (Doc. #18).
The Shawnee County District Court denied plaintiff's request for injunctive relief. Plaintiff nonetheless spent about $5,000.00 for materials and carpenters to make repairs which city inspectors had identified. After several weeks of repairs, the Code Compliance Services cut electric service and removed the meters for both properties. Plaintiff appealed the Shawnee County District Court decision to the Kansas Court of Appeals.
The City attaches to its brief the journal entry which the Shawnee County District Court entered on October 30, 2002, Exhibit D toMemorandum In Support (Doc. #18). The journal entry indicates that the state court consolidated plaintiff's two actions, that plaintiff was represented by counsel and that plaintiff was permitted to present evidence and arguments at a hearing on October 30, 2002. The state court denied plaintiff's request for an injunction and allowed the City to proceed with the demolition of both structures in accordance with the orders of the city's administrative hearing officer. Specifically, the state court held that in authorizing the demolitions, the administrative hearing officer acted within the authority granted him by K.S.A. § 17-4769 (which authorizes the City to adopt ordinances relating to repair, demolition or removal of unsafe, unsanitary, dangerous or detrimental structures) and Topeka City Code §§ 26-546 to 26-558 (which authorize removal or demolition when repair cannot be made at reasonable cost in relation to fair market value — defined as 15 per cent or less of fair market value). Id. at 1-3. It found that (1) the cost to repair 1121 Washburn was approximately $49,000 and the appraised value, if repairs were completed, would be $37,000; (2) the cost to repair 421 Southwest Tyler was approximately $41,000, the estimated replacement cost was $158,000 and plaintiff presented no evidence regarding its appraised value; (3) the City had given plaintiff sufficient time to make repairs to both properties and plaintiff did not make the repairs; and (4) substantial evidence supported the demolition orders. Id. at 3-5.
The state court also found that plaintiff had not complied with the requirements of the Department of Housing and Neighborhood Development for participation in relevant funding and thus denied plaintiff's request for an injunction requiring the Housing and Neighborhood Development agency to "follow its own rules." Exhibit D.
On November 8, 2002, plaintiff requested a new trial, alleging that the state court had abused its discretion, erred in granting the City a directed verdict, and rendered its decision under the influence of prejudice. Exhibit E to Memorandum In Support (Doc. #18). On November 25, 2002, the Shawnee County District Court held a hearing and denied plaintiff's request for a new trial. Exhibit F to Memorandum In Support (Doc. #18).
The second amended complaint in this case does not directly allege that plaintiff appealed to the Kansas Court of Appeals, but it alleges that plaintiff "filed for a temporary restraining order seeking an injunction to prevent the City of Topeka from canceling his janitorial contract and from demolishing his houses before his appeal is heard;" that after the City demolished the house at 1146 Washburn, plaintiff " amended his notice of appeal to include a stay of judgment." Second Amended Complaint (Doc. #35) at 18 (emphasis added); and that he "has limited this complaint to issues the defendant the City of Topeka has argued were excluded from jurisdiction in Shawnee County District Court Case Numbers 01-C-1438 and 02-C-557 and are not before the Kansas Court of Appeals as the decisions in those cases are subject to appellate review," id. at 24. See Exhibit G to Memorandum In Support (Doc. #18).
In the docketing statement which plaintiff filed in the Kansas Court of Appeals on January 21, 2003, he stated that "violations of constitutional rights and due process" provided the statutory authority for his appeal and that his appeal challenged the constitutionality of a statute or ordinance. Exhibit H to Memorandum In Support (Doc. #18), at 2. Specifically, plaintiff stated that the City "made determination[s] on invalid ordinance[s] and defective due process" and that he "challenges the constitutional validity of the city ordinance, even if it had been properly enacted." Id. at 3.
Although the second amended complaint does not address this point, plaintiff filed a motion to voluntarily withdraw his appeal to the Kansas Court of Appeals on April 21, 2003. Exhibit I to Memorandum In Support (Doc. #18). The Kansas Court of Appeals granted plaintiff's motion and dismissed his appeal on May 5, 2003. Exhibit J toMemorandum In Support (Doc. #18).
On December 20, 2002, while his state court case was still on appeal, plaintiff filed this suit and sought a temporary restraining order to prevent the City from cancelling his janitorial contract and demolishing his properties. See Request For Emergency Temporary Restraining Order Hearing (Doc. #2) filed December 20, 2002. On December 23, 2002, the Court heard telephonic oral argument. The Court found that based on the facts alleged in the original complaint, it lacked jurisdiction under the Rooker-Feldman doctrine. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). It therefore overruled plaintiff's request for a temporary restraining order, Memorandum And Order (Doc. # 4) filed February 5, 2003 at 5, but granted plaintiff leave to file an amended complaint alleging facts sufficient to establish federal jurisdiction. Id.
The City canceled plaintiff's janitorial contract and demolished his properties at 1146 Washburn and 421 Southwest Tyler. The Code Compliance Services then billed plaintiff for the two demolitions. In response, plaintiff informed the agency that he believed it had violated federal law by seeking reimbursement when it had used federal community development block grant funds to clear the lots. Plaintiff also told the agency that the City could not seek reimbursement from low income property owners. In response, the agency assigned plaintiff's alleged debt to a bill collection attorney.
Armed police officers accompanied the contractors who tore down the house at 1146 Washburn. Plaintiff then amended his state court notice of appeal to request a stay of judgment from the Kansas Court of Appeals. Shortly thereafter, the City demolished the property at 421 Southwest Tyler.
E. Plaintiff's Federal Claims
Plaintiff brings five federal claims. Count I alleges that the City violated 42 U.S.C. § 1981 by discriminating against him on the basis of race in denying him rental rehabilitation loans authorized by 24 C.F.R. § 570.202, failing to implement regulations which required it to protect plaintiff from discrimination, disrupting plaintiff's janitorial contract after he raised questions about code enforcement and demolition and their effect on racial minorities, and denying him financial resources to pursue his claims against them. Count II alleges that the City violated 42 U.S.C. § 1982 by demolishing the structures on his property. Count III alleges that the City violated 42 U.S.C. § 1983 by increasing residential housing code standards to unreasonable levels; aggressively and selectively enforcing its policy against racial minorities; "enforc[ing] this policy ruthlessly against [plaintiff] for the purpose of taking his personal capital assets away from him so that he would not be able to pursue redress in existing Shawnee County District Court actions and in this federal action;" depriving him of his right to free speech under the First and Fourteenth Amendments; depriving him of his right to own and enjoy property under the Fourteenth Amendment; disrupting plaintiff's janitorial contract after he raised questions about code enforcement and demolition and their effect on racial minorities; and depriving him of resources needed to pursue redress. Count IV alleges that the City violated 42 U.S.C. § 1985 by denying plaintiff the use and enjoyment of his property and the benefits of his contracts. Finally, plaintiff alleges that the City violated the Fair Housing Act ("FHA"), 42 U.S.C. § 3604 and 3605, by refusing to make available the homes which plaintiff had purchased from the tax sale and discriminating against him on the basis of race in refusing to provide funds to rehabilitate his properties. Plaintiff asks the Court for declaratory and injunctive relief to stop the City from misusing FIUD funds and prevent the City from interfering with his solicitation and bidding on janitorial contracts. Plaintiff also seeks monetary compensation for past injuries.
Plaintiff does not specify which regulations or the dates of any discrimination.
This allegationapplies to plaintiff's claims regarding enforcement of unspecified regulations, demolition of his properties and disruption of his janitorial contract.
This allegation applies to plaintiff's claims regarding demolition of his properties and disruption of his janitorial contract.
Plaintiff's Section 1985 alleges that "defendants" were familiar with the funding requirements and that "defendants who are individuals" acted together to violate plaintiff's rights. Thus, plaintiff's Section 1985 claim may relate only to the individual defendants.
Plaintiff's FFIA claim is not contained in a discretely numbered count.
Relying on Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P., the City asks the Court to dismiss plaintiff's claims relating to the demolition of the structures at 1146 Washburn and 421 Southwest Tyler and the denial of funding to rehabilitate these structures. Specifically, the City asks the Court to dismiss (1) that part of Count I which alleges that the City violated 42 U.S.C. § 1981 by denying him rental rehabilitation loans authorized by 24 C.F.R. § 570.202; (2) all of Count II, which alleges that the City violated 42 U.S.C. § 1982 by demolishing the structures on his property; (3) that part of Count III which alleges that the City violated 42 U.S.C. § 1983 by increasing residential housing code standards to unreasonable levels and aggressively and selectively enforcing its policy against racial minorities; (4) that part of Count IV which alleges that the City violated 42 U.S.C. § 1985 by denying plaintiff the use and enjoyment of his property; and (5) plaintiff's entire claim under the FHA, i.e. that the City violated Section 3604 by refusing to make available the homes which plaintiff had purchased from the tax sale and Section 3605 by discriminating against him on the basis of race in refusing to provide funding to rehabilitate his properties. Memorandum In Support Of Defendant City of Topeka's Motion To Dismiss (Doc. #18) at 1, 6-7. The City argues that (1) under the Rooker-Feldman doctrine, this Court lacks subject matter jurisdiction over such claims; and (2) such claims are precluded by res judicata. Id. at 1.
Plaintiff, who filed his opposition to the City's motion eight days late and without leave of Court, argues that his response is untimely due to excusable neglect and asks the Court to consider it. See D. Kan. Rule 7.4 (failure to respond within time specified constitutes waiver of right to thereafter file such response, except upon showing of excusable neglect). The Supreme Court analyzed the excusable neglect standard in Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380 (1993). "[E]xcusable neglect is a somewhat elastic concept and is not limited strictly to omissions caused by circumstances beyond the control of the movant." Pioneer, 507 U.S. at 392. On the other hand, "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable' neglect."Id.
Although the Pioneer analysis was performed in the context of Fed. Bankr. R. 9006(b)(1), the Tenth Circuit has adopted it in other contexts as well. See City of Chanute, Kan. v. Williams Nat'l Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994).
In determining whether the excusable neglect standard is met, courts should consider all relevant circumstances, including "(1) the danger of prejudice to the nonmoving party, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith." Id. at 3 95. Control over the circumstances of the delay is "a very important factor-perhaps the most important single factor-in determining whether neglect is excusable."Williams Nat'l Gas, 31 F.3d at 1046.
Plaintiff claims that he responded out of time because (1) his attorney had to file an amicus brief in the City's action to collect demolition costs, and (2) the Kansas Court of Appeals filed an ethics complaint against plaintiff's attorney, which required lengthy research and a written response. Plaintiff's attorney argues that these obligations reduced his ability to defend the City's motion to dismiss.
Considering the factors listed above, the Court finds that the delay was entirely within the control of plaintiff's counsel, who could have timely requested an extension of time which the Court would have granted for good cause. On the other hand, plaintiff's eight-day delay has caused no prejudice to the City and no material delay of the proceedings. Likewise, the Court has no reason to believe that plaintiff or his attorney acted in bad faith.
The Court notes that the press of other legal matters does not generally constitute excusable neglect. Walls v. Int'l Paper Co., 192 F.R.D. 294, 296 (D. Kan. 2000) (delay due to attorney's busy practice rarely constitutes excusable neglect); see also Kan. Sup.Ct. Rule 1.3 (lawyer shall act with reasonable diligence and promptness); CSU, L.L.C. v. Xerox Corp., 202 F.R.D. 275, 282 (D. Kan. 2001) (attorney inadvertence, ignorance of rules or mistakes construing rules usually not excusable neglect). It therefore cautions counsel that future derelictions will not be excused. On this occasion, however, because the delay was short and occasioned no prejudice to opposing parties or the judicial process, the Court will not disregard plaintiff's response brief.
Analysis
I. Rooker-Feldman DoctrineThe Rooker-Feldman doctrine prevents a party losing in state court from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); see also Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994). The Rooker-Feldman doctrine is a jurisdictional prohibition which applies to two categories of claims: (1) those actually decided by a state court, see Rooker, 263 U.S. at 415, or (2) those "inextricably intertwined" with a state court judgment, see Feldman, 460 U.S. at 482 n. 16.
When a defendant brings a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff must carry the burden of proving jurisdiction. Richmond, Fredericksburg Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) cert. denied, 503 U.S. 984 (1992); Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). In deciding a Rule 12(b)(1) motion, the Court may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. A. Origin Of The Rooker-Feldman Doctrine
Generally, conversion of Rule 12(b)(1) motions into motions for summary judgment will occur when the jurisdictional question is intertwined with the merits of the case. Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987), cert. denied, 484 U.S. 986 (1987).
The Rooker-Feldman doctrine originated from two Supreme Court decisions decided 60 years apart. In Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), Rooker asked the United States District Court forthe District of Indiana to declare that a judgment by the Indiana Supreme Court was void because it violated the contract clause and the Fourteenth Amendment due process and equal protection clauses. 263 U.S. at 415. The district court dismissed for lack of jurisdiction. On appeal, the United States Supreme Court held that (1) if constitutional questions had arisen in the state case, the state court was duty bound to decide them; and (2) review of the state court decision was an exercise of appellate jurisdiction. Id. at 415. If the state court decision was unconstitutional, it was not void but was subject to reversal or modification by the United States Supreme Court — the only court with jurisdiction to hear the appeal from the state's highest court. Therefore, under Rooker, lower federal courts lack jurisdiction to review state court judgments that have been affirmed by the highest court of the state. Id. at 415.
Although the Supreme Court has never held thatRooker-Feldman applies to a state court judgment which is not that of the state's highest court, "in the Tenth Circuit,Rooker-Feldman applies to all state-court judgments, including those of intermediate state courts. Kenmen Eng'g v. City of Union, 314 F.3d 468, 473 (10th Cir. 2002) (emphasis in original) (citations omitted).
Six decades later, in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), the Supreme Court revisitedRooker. The Committee on Attorney Admissions for the District of Columbia allowed members of bars from other states to be accepted without taking the bar exam, and plaintiff — a member of the Virginia and Maryland bars — applied for admission under the exam waiver rule. 460 U.S. at 465. The District of Columbia denied Feldman's application, however, because he had not graduated from an accredited law school. Feldman then petitioned the District of Columbia Court of Appeals for admission without examination or for permission to sit for the examination. The District of Columbia Court of Appeals issued a per curiam order which denied the petition. Feldman then filed suit in the United States District Court for the District of Columbia, requesting (1) an order that the bar committee grant him immediate admission or allow him to take the bar exam; and (2) a declaration that the actions of the Admissions Committee and District of Columbia Court of Appeals violated the Fifth Amendment and the Sherman Act, 15 U.S.C. § 1et seq. Id. at 468-69. Applying Rooker, the district court dismissed the complaint for lack of subject matter jurisdiction. The United States Court of Appeals for the District of Columbia Circuit reversed, holding that the bar admission proceedings in the District of Columbia Court of Appeals were administrative or ministerial and not judicial in nature and did not foreclose litigation of Feldman's constitutional contentions in federal district court.Id. at 474.
28 U.S.C. § 1257(a) provides that "[f]inal judgments or decrees rendered by the highest court of a State . . . maybe reviewed by the Supreme Court by writ of certiorari . . . where any title, right, privilege, or immunity is specially set up or claimed under the Constitution." For the purposes of Section 1257, the term "highest court of a State" includes the District of Columbia Court of Appeals. 28 U.S.C. § 1257(b).
On a writ of certiorari, the United States Supreme Court vacated the Court of Appeals decision. The Supreme Court held that the proceedings before the District of Columbia Court of Appeals were judicial in nature because that court was called upon to "investigate, declare and enforce liabilities as they stood on present or past facts and under laws supposed already to exist." Id. at 479 (citations and quotations omitted). The Supreme Court held that lower federal courts lacked subject matter jurisdiction over challenges to state court bar admission decisions which arise out of judicial proceedings in particular cases even if the state court action is allegedly unconstitutional or to decide questions "inextricably intertwined" with state court judgments. Id. at 483 n. 16. Feldman's challenge to the denial of his waiver petition was "inextricably intertwined" with the state court decision to deny his petition and required the lower federal court to review the state court decision in a particular case. Id. at 486-87. The Supreme Court therefore held that the district court lacked jurisdiction to entertain that challenge. On the other hand, it had jurisdiction to hear Feldman's general challenge to constitutionality of the bar admissions rule — a general attack which did not require review of a state judicial decision in a particular case. Id. at 487.
B. Parties' Arguments
The City argues that the Court lacks subject matter jurisdiction underRooker-Feldman because plaintiff's claims relating to the demolitions at 1146 Washburn and 421 Southwest Tyler and the denial of rehabilitation funds are inextricably intertwined with the state court proceedings. Specifically, the City argues that (1) plaintiff is asking the Court to second guess the decision of the Shawnee County District Court, which determined that the demolition orders were lawful; (2) plaintiff's state court actions raised or could have raised each claim relating to the demolitions; (3) the Shawnee County District Court specifically addressed the City's refusal to provide funding and ruled that plaintiff did not qualify for funding; and (4) plaintiff was obligated to challenge the City's refusal on all available grounds in state court. Plaintiff argues that Rooker-Feldman does not apply because (1) the City is prosecuting its claim for demolition costs in bad faith, and (2) Younger abstention is inappropriate. Reply To Motion For Dismissal (Doc. #23) at 2-3.
Plaintiff also argues that even though he voluntarily withdrew his appeal in the Kansas Court of Appeals, two concurrent jurisdiction proceedings regarding this matter remain in state court: (1) the City's limited actions proceeding against plaintiff in Shawnee County and (2) an ethics proceeding by the Kansas Court of Appeals against plaintiff's counsel. See Reply To Motion For Dismissal (Doc. #23) filed June 24, 2003, at 3. These proceedings are not discussed in plaintiff's second amended complaint and the Court does not consider them in ruling on the motion to dismiss.
The parties' arguments exemplify the general confusion which surrounds the proper application of the Rooker-Feldman doctrine. By arguing that plaintiff's state court actions raised or could have raised each of his claims relating to the demolitions in state court, the City seems to confuse Rooker-Feldman with res judicata. Plaintiff, on the other hand, seems to confuse the Rooker-Feldman doctrine with Younger abstention, see Younger v. Harris, 401 U.S. 37 (1971). The three doctrines, however, are distinct.
1. The Rooker-Feldman Doctrine And Res Judicata
As noted above, the Rooker-Feldman doctrine is jurisdictional; it prevents a party who loses in state court from litigating in federal court those federal issues which have been actually raised in state court proceedings, and those federal issues which are "inextricably intertwined" with issues involved in the state court proceedings. See Rooker, 263 U.S. at 416; Feldman, 460 U.S. at 482; see also Johnson, 512 U.S. at 1005-06. In other words, it prevents a party from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself — or an issue inextricably intertwined with the state court judgment — violates the loser's federal rights.
Res judicata, on the other hand, prohibits re-litigation of certain claims based on the resolution of an earlier action between the same parties. Reed v. McKune, 298 F.3d 946, 950 (10th Cir. 2002); King v. Union Oil Co., 117 F.3d 443, 445 (10th Cir. 1997). Under res judicata a final judgment on the merits precludes re-litigation of issues that were or could have been raised in the first suit.Allen v. McCurry, 449 U.S. 90.94 (1980); see also Schwartz v. Coastal Physician Group, Inc., 172 F.3d 63, 1999 WL 89037, at *3 (10th Cir. Feb. 23, 1999) (res judicata barred second action when claims arose from same transaction and sought same redress for injury).Rooker-Feldman, however, precludes unraised claims — whether or not the party could have raised them — if they are inextricably intertwined with the state court judgment. Kenmen, 314 F.3d at 478.
In addition, res judicata is an affirmative defense which defendant must raise or lose. Because the Rooker-Feldman doctrine is jurisdictional, a party can bring it up or the Court can address it sua sponte at any stage of litigation.
2. The Rooker-Feldman Doctrine And Younger Abstention
The Rooker-Feldman doctrine is also distinct fromYounger abstention. Younger abstention is not an issue unless the Court has jurisdiction. Younger abstention requires that a federal court refrain fromhearing an action over which it has jurisdiction "when [the] federal proceedings would (1) interfere with an ongoing state judicial proceeding (2) that implicates important state interests and (3) affords an adequate opportunity to raise the federal claims." J.B. v. Valdez, 186 F.3d 1280, 1291 (10th Cir. 1999). Once a court finds that the required conditions are present, abstention is mandatory. See, e.g., Amanatullah v. Colorado Bd. of Med. Exam'rs, 187 F.3d 1160. 1163 (10th Cir. 1999) ("Younger abstention is non-discretionary; it must be invoked once the three conditions are met, absent extraordinary circumstances."). "Under the Younger abstention doctrine, federal courts should not interfere with state court proceedings by granting equitable relief-such as injunctions of important state proceedings or declaratory judgments regarding constitutional issues in those proceedings-when a state forum provides an adequate avenue for relief." Weitzel v. Div. of Occupational Prof 1 Licensing, 240 F.3d 871, 875 (10th Cir. 2001) (quotations and citations omitted).
The Court only decides whether abstention is proper if it has jurisdiction. See Pennzoil Co. v. Texaco,. Inc., 481 U.S. 1, 23 (1987) (Marshall, J. concurring).
As stated above, plaintiff's state lawsuits are not ongoing but he argues that two concurrent state proceedings remain pending against plaintiff and his counsel: (1) the City's limited actions proceeding against plaintiff in Shawnee County and (2) an ethics proceeding by the Kansas Court of Appeals against plaintiff's counsel. These proceedings are not discussed in plaintiff's second amended complaint and the Court does not consider them in ruling on the motion to dismiss. The city does not argue that Younger abstention is appropriate, however, and plaintiff's arguemnt on this point is irrelevant.
The Rooker-Feldman doctrine, in contrast, is jurisdictional; it applies regardless whether the state court proceeding is ongoing, whether a state interest is implicated or whether plaintiff has had adequate opportunity to raise his claims in the state court proceeding.Kenmen 314 F.3d at 474. As stated above, the key element in theRooker-Feldman analysis is whether plaintiff's federal claims have been decided by the state court or are inextricably intertwined with the state-court judgment. Plaintiff's argument is therefore misplaced.
C. Whether Plaintiff's Federal Claims Have Been Decided By Or Are Inextricably Intertwined With The Shawnee County District Court Judgment
As stated above, the Rooker-Feldman doctrine prevents a party losing in state court from seeking what in substance would be appellate review of the state judgment in a United States district court, based on his claim that the state judgment itself violates the his federal rights. Specifically, the doctrine prohibits lower federal court jurisdiction over claims actually decided by a state court and those inextricably intertwined with state court judgments.
1. State Court Judgment
As noted above, on November 9, 2001 and April 19, 2002, plaintiff filed petitions for temporary and permanent injunctions in the Shawnee County District Court to prevent the City from demolishing his properties at 1146 Washburn and 421 Southwest Tyler, to enjoin the City from blocking his rehabilitation efforts and holding him liable for involuntary demolition costs, and to secure a declaration that the City had misused federal funds. Plaintiff alleged that (1) the City was blocking his rehabilitation efforts at 1146 Washburn and 421 Southwest Tyler, causing him to lose his investment; (2) the City's rehabilitation calculations were unrealistic and rehabilitation was economically feasible; (3) the Topeka Housing and Neighborhood Development agency acted inconsistently and violated its guidelines when it avoided calls from plaintiff's banker; and (4) the City wrongly sought to make plaintiff liable for involuntary demolition cost.
The Shawnee County District Court consolidated plaintiff's two actions. Plaintiff was represented by counsel and was allowed to present evidence and arguments at a hearing on October 30, 2001. The state court denied plaintiff's request for an injunction and allowed the City to proceed with the demolition of both structures in accordance with the orders of the city administrative hearing officer. Journal Entry October 30, 2002, Exhibit D to Memorandum In Support (Doc. #18). Specifically, the state court held that in authorizing the demolitions, the administrative hearing officer had acted within the authority granted him by K.S.A. § 17-4769 and Topeka City Code §§ 26-546 to 26-558. Id. at 1-5. It also found that plaintiff had not complied with the requirements of the Department of Housing and Neighborhood Development for participation in relevant funding and thus denied plaintiff's request for an injunction requiring the Housing and Neighborhood Development agency to "follow its own rules." Id. at 5.
Section 17-4769, K.S.A., authorizes the City to adopt ordinances relating to repair, demolition or removal of unsafe, unsanitary, dangerous or detrimental structures.
Those ordinances authorize removal or demolition when repair cannot be made at reasonable costs in relation to fair market value — defined as 15 per cent or less of fair market value.
Plaintiff's state court actions did not allege federal claims under 42 U.S.C. § 1981, 1982, 1983 or 1985, or the FHA, and the state court did not decide any such claims. As noted, however,Rooker-Feldman precludes federal jurisdiction if the unraised claims are inextricably intertwined with the state court judgment. A federal claim is inextricably intertwined with the state court judgment if "the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment."Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J. concurring).
Two categories of cases may fall outside the "inextricably intertwined" umbrella: (1) general constitutional challenges to state law if "the party does not request that the federal court upset a prior state-court judgment applying that law against the party," and "the prior state-court judgment did not actually decide that the state law at issue was facially constitutional;" and (2) challenges to state procedures for enforcement of a judgment if consideration of the underlying state-court decision is not required. Kenmen, 314 F.3d at 476 (quotations and citations omitted); see also Edwards v. Illinois Bd. of Admissions to Bar, 261 F.3d 723, 729 (7th Cir. 2001) ("When the litigant is challenging the constitutionality of a rule that was applied to him, but is not asking to correct or revise the determination that he violated the rule, Rooker-Feldman is no obstacle to the maintenance of the suit." (internal quotation marks omitted)).
2. Federal Court Claims
As stated above, plaintiff alleges (1) that the City violated 42 U.S.C. § 1981 by denying him rental rehabilitation loans authorized by 24 C.F.R. § 570.202 (part of Count I); (2) that it violated 42 U.S.C. § 1982 by demolishing the structures on his property (Count II); (3) that it violated 42 U.S.C. § 1983 by increasing residential housing code standards to unreasonable levels and aggressively and selectively enforcing its policy against racial minorities (part of Count HI); (4) that it violated 42 U.S.C. § 1985 by denying plaintiff the use and enjoyment of his property (Count IV); and (5) that the City violated the FHA, 42 U.S.C. § 3604 and 3605, by refusing to make available the homes which plaintiff purchased from the tax sale and discriminating against him on the basis of race in refusing to provide funds for rehabilitation. The City argues that these claims are inextricably intertwined with the Shawnee County District Court judgment.
In determining whether plaintiff's federal claims are "inextricably intertwined," the Court generally asks "whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment." Kenmen 314 F.3d at 476 (quotations and citations omitted). Injury, causation and redressability inform this analysis. Id. "In other words, we approach the question by asking whether the state-court judgment caused, actually and proximately, the injury for which the federal-court plaintiff seeks redress." Id. (emphasis in original, footnote omitted). The Rooker-Feldman doctrine protects state court judgments from impermissible appellate review by lower federal courts. Therefore the Court cannot simply compare the issues involved in the state-court proceeding to those here. Id. Instead, to determine whether the Rooker-Feldman doctrine deprives the Court of jurisdiction, the Court must look at the relief which plaintiff seeks. Id. If the requested relief amounts to a challenge to the state court decision, or is inextricably intertwined with the state court judgment, the Court does not have jurisdiction.
As to the claims which the City seeks to dismiss, plaintiff's second amended complaint seeks declaratory and monetary relief. Plaintiff seeks judicial declarations that the City (1) demolished his properties in violation of 42 U.S.C. § 1982 (Count II); (2) enforced and applied unspecified regulations regarding unsafe residential structures in violation of 42 U.S.C. § 1983 (part of Count III); and (3) seized and destroyed his property in violation of 42 U.S.C. § 1983 (part of Count III). Plaintiff generally seeks "[m]onetary damages in excess of $75,000.00 for the injuries that plaintiff has suffered, including attorney's fees and costs." Second Amended Complaint at 47.
Plaintiff's prayer for monetary relief does not specify what amount plaintiff requests for specific violations. He apparently seeks compensation in excess of $75,000 for (1) the denial of rental rehabilitation loans in violation of 42 U.S.C. § 1981 (part of Count I); (2) the demolition of his property in violation of 42 U.S.C. § 1982 (Count II); (3) selective enforcement of housing code standards in violation of 42 U.S.C. § 1983 (part of Count III); (4) denial of the use and enjoyment of his property in violation of 42 U.S.C. § 1985 (Count IV); and (5) refusal to make available the homes whichhe purchased from the tax sale and race discrimination in denying rehabilitation funds in violation of the FHA, 42 U.S.C. § 3604 and 3605.
a. Section 1981 Claim (Count I)
In pertinent part, 42 U.S.C. § 1981 provides that "[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts,. . . and to the full and equal benefit of all laws . . . as is enjoyed by white citizens." 42 U.S.C. § 1981 (a). Count I alleges that the City violated Section 1981 by denying plaintiff rental rehabilitation loans authorized by 24 C.F.R. § 570.202 (part of Count I). Although the state court did not hear or decide this issue, it heard argument and evidence and found that plaintiff had not complied with the requirements of the Department of Housing and Neighborhood Development for participation in relevant funding. It therefore denied plaintiff's request for an injunction requiring the City agency to "follow its own rules."
Plaintiff seeks more than $75,000 in damages on his claim that the City violated Section 1981 by denying him rental rehabilitation loans. Plaintiff makes no effort to distinguish the subject matter of his Section 1981 claim from the subject matter of his funding claim in state court. The Court therefore assumes that the funding issues in the two cases are either identical or inextricably intertwined and that plaintiff's federal claim can succeed only to the extent that the state court wrongly decided that plaintiff did not qualify for funding. Plaintiff has therefore failed to demonstrate that despite Rooker-Feldman, the Court has jurisdiction over this part of plaintiff's Section 1981 claim.
b. Section 1982 Claim (Count II)
In pertinent part, 42 U.S.C. § 1982 provides that "[a]ll citizens of the United States shall have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property." Count II alleges that the City violated Section 1982 by demolishing the structures on his property. Plaintiff seeks declaratory relief and monetary damages in excess of $75,000 on this count. Plaintiff did not bring this claim in state court and that court did not decide it. Nevertheless, after argument and evidence, the state court refused to enjoin the demolitions and held that in authorizing the demolitions, the administrative hearing officer had acted within the authority granted him by K.S.A. § 17-4769 and Topeka City Code §§ 26-546 to 26-558. In seeking monetary damages and a judicial declaration that the City demolished his properties in violation of Section 1982, plaintiff challenges the state court determination that the City hearing officer had lawfully authorized the demolitions. His federal claim can succeed only to the extent that the state court wrongly decided that issue. Plaintiff does not suggest otherwise, and he has failed to demonstrate that the Court has jurisdiction over his Section 1982 claim.
c. Section 1983 Claims (Parts Of Count III)
In pertinent part, 42 U.S.C. § 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the part injured in an action at law, suit in equity, or other proper proceeding for redress.
Plaintiff alleges that the City violated Section 1983 by increasing its residential housing code standards to unreasonable levels and aggressively and selectively enforcing its policy against racial minorities (part of Count III). He alleges that the City ruthlessly enforced this policy against him for the purpose of taking his assets so that he could not pursue redress in court; that it deprived him of his right to free speech under the First and Fourteenth Amendments; and that it also denied him his right to own and enjoy property under the Fourteenth Amendment.
On his Section 1983 claim, plaintiff seeks monetary damages in excess of $75,000 and a judicial declaration that the City (1) enforced and applied unspecified regulations regarding unsafe residential structures, and (2) seized and destroyed his property in violation of 42 U.S.C. § 1983. To the extent that plaintiff seeks monetary relief for selective code enforcement, deprivation of his right to free speech under the First and Fourteenth Amendments and demolition of his properties, Rooker-Feldman precludes jurisdiction. Plaintiff seeks damages for the City's past application of unspecified regulations and its demolitions of his properties. Plaintiff's federal claim is inextricably intertwined with the state court decision that the demolitions were authorized under state and local law, and plaintiff does not argue otherwise. Under Rooker-Feldman, the Court has no jurisdiction to consider these claims formonetary damages under Section 1983. See Rooker, 263 U.S. at 415; Feldman, 460 U.S. at 482 n. 16.
Although this Court retains jurisdiction over general challenges to the lawfulness of regulations, see Feldman, 460 U.S. at 486, plaintiff in this case does not seek a judicial declaration that the city regulations are unconstitutional. Rather, plaintiff seeks a declaration that the City enforced and applied them in violation of Section 1983. His challenge to the City enforcement policy challenges the state court determination that the City had lawfully authorized the demolitions. Plaintiff's claim under Section 1983 can succeed only to the extent that the state court wrongly decided that issue. Plaintiff does not suggest otherwise, and he has therefore failed to demonstrate that the Court has jurisdiction over this part of his Section 1983 claim.
To the extent that plaintiff challenges the actual demolitions, declaratory judgment under Section 1983 would also upset the state court ruling that the demolition orders were lawful. UnderRooker-Feldman, the Court has no jurisdiction to consider plaintiff's claim for a judicial declaration that the City seized and destroyed his property in violation of Section 1983.
d. Section 1985 Claim (Part Of Count IV)
In pertinent part, 42 U.S.C. § 1985 provides that:
If two or more persons in any State . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the law . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
Count IV alleges that the City violated Section 1985 by denying plaintiff the use and enjoyment of his property (Count IV). Plaintiff seeks monetary damages in excess of $75,000 for this claim. As stated above, plaintiff does not deny that the requested relief would challenge the state court determination that the demolitions were lawful. As noted, plaintiff's federal claim can succeed only to the extent that the state court wrongly decided the issues before it. Plaintiff has not demonstrated that the Court has jurisdiction to consider his Section 1985 claim under Rooker-Feldman.
e. FHA Claims
Plaintiff alleges that the City violated the FHA, 42 U.S.C. § 3604 and 3605, by discriminating against him on the basis of race in refusing to make the properties available and refusing to provide rehabilitation funds. Section 3604 provides that it shall be unlawful "(a) To . . . make unavailable or deny, a dwelling to any person because of race . . . (b) To discriminate against any person . . . in the provision of services . . . because of race." Section 3605 provide that it shall be unlawful for any entity "whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race." 42 U.S.C.A. § 3605(a). Plaintiff seeks monetary damages in excess of $75,000 for this claim — a request which challenges the state court determinations that the demolitions were lawful and that plaintiff was not qualified to participate in relevant funding. Plaintiff has not shown that his FHA claims are not inextricably intertwined with those decisions in state court. Under Rooker-Feldman, the Court therefore lacks jurisdiction to consider plaintiff's FHA claim.
f. Summary
Plaintiffs who lose in state court may not "recast their claims in federal court under the guise of federal constitutional claims that were not raised or decided by the state court . . . if the constitutional claims are inextricably intertwined with the merits of the state court judgment." Guess v. Bd. of Med. Examiners, 967 F.2d 998, 1002-03 (4th Cir. 1992). In this regard, the Court emphasizes that plaintiff chose the initial forum. He could have raised his federal claims in federal court at the outset, instead of seeking injunctions in state court.
Under Rooker-Feldman, this Court lacks subject matter jurisdiction over plaintiff's claims that the City (1) violated 42 U.S.C. § 1981 by denying him rental rehabilitation loans authorized by 24 C.F.R. § 570.202 (part of Count I); (2) violated 42 U.S.C. § 1982 by demolishing the structures on his property (Count II); (3) violated 42 U.S.C. § 1983 by increasing residential housing code standards to unreasonable levels and aggressively and selectively enforcing its policy against racial minorities (part of Count III); (4) violated 42 U.S.C. § 1985 by denying plaintiff the use and enjoyment of his property (Count IV); and (5) violated the FHA, 42 U.S.C. § 3604 and 3605, by discriminating against him on the basis of race in refusing to make available the homes which plaintiff purchased from the tax sale and refusing to provide funds for rehabilitation. The Court therefore sustains the City's motion.
IT IS THEREFORE ORDERED that Defendant City Of Topeka's Motion To Dismiss (Doc. #17) filed May 23, 2003 be and hereby is SUSTAINED. The Court dismisses (1) that part of Count I which alleges that the City violated 42 U.S.C. § 1981 by denying him rental rehabilitation loans authorized by 24 C.F.R. § 570.202; (2) all of Count II, which alleges that the City violated 42 U.S.C. § 1982 by demolishing the structures on his property; (3) those parts of Count III which allege that the City violated 42 U.S.C. § 1983 by increasing residential housing code standards to unreasonable levels and aggressively and selectively enforcing its policy against racial minorities; (4) that part of Count IV which alleges that the City violated 42 U.S.C. § 1985 by denying plaintiff the use and enjoyment of his property; and (5) plaintiff's entire claim under the FHA,i.e. that the City violated the FHA, 42 U.S.C. § 3604 and 3605, by refusing to make available the homes which plaintiff purchased from the tax sale and discriminating against him on the basis of race in refusing to provide funding to rehabilitate his properties for lack of jurisdiction.
The following claims remain: (1) that part of Count I which alleges that the City violated 42 U.S.C. § 1981 by disrupting plaintiff s janitorial contract after he raised questions about code enforcement and demolition and their effect on racial minorities and denying him financial resources to pursue this claim; (2) that part of Count HI which relates to his janitorial contract and alleges that the City violated 42 U.S.C. § 1983 by depriving him of his right to free speech under the First and Fourteenth Amendments; depriving him of his right to own and enjoy property under the Fourteenth Amendment; disrupting plaintiff s janitorial contract after he raised questions about code enforcement and demolition and their effect on racial minorities; and depriving him of resources needed to pursue redress; and (3) that part of Count IV which alleges that the City violated 42 U.S.C. § 1985 by denying plaintiff the benefits of his contracts.