Opinion
Civil Action No. 02-2635-KHV
February 4, 2003
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff's Request For Emergency Temporary Restraining Order Hearing (Doc. #2) filed December 23, 2002. For reasons set forth below, plaintiffs motion is overruled.
On December 20, 2002, James L. Bolden filed suit against the City of Topeka ("the City"), Mayor Harry Felker, Jay Oyler and Mike McGee seeking to restrain the City from taking away his janitorial contract and demolishing his real property. Complaint For Emergency Temporary Restraining Order And Preliminary Injunctive Relief ("Complaint") (Doc. #1). On December 23, 2002, plaintiff filed a Request For Emergency Restraining Order Hearing ("Request For Restraining Order") (Doc. #2) and the Court heard telephonic oral argument on his motion. Plaintiff appeared through attorney Bret D. Landrith and the City appeared through Sherri Price, Assistant City Attorney. A court reporter was not available.
The record does not indicate who Jay Oyler and Mike McGee are or why they are included in this suit.
Background
Plaintiff's complaint does not allege any facts; it requests a temporary restraining order and preliminary injunction against the City "to prevent the imminent danger and irreparable harm including taking away his janitorial contract in retaliation for protected speech and the demolition of his real property in violation of his civil rights guaranteed under the Constitution of the United States and 42 U.S.C. § 1981, 1983 and 1985." Complaint (Doc. #1). Plaintiffs request for a restraining order also includes few facts, but his counsel tendered some relevant evidence at the telephonic conference on December 23.
Plaintiff alleged that shortly after the City discovered that he depended on his janitorial contract with the City to make mortgage payments on two properties located in Shawnee County, the City put his contract up for bid without notifying him. Request For Restraining Order (Doc. #2) ¶ 2. Plaintiff also noted that he was seeking a restraining order against the City in Shawnee County District Court to prevent the City from demolishing his two properties. Id.
Plaintiff's evidence is apparently this: plaintiff had a renewable a janitorial service contract with the City which the City did not renew. Id. ¶ 2. Plaintiff also owns two properties in Topeka. Id. ¶¶ 2 and 5. The City found that the properties had numerous code violations and sought to demolish them. Plaintiff filed suit in the Shawnee County District Court to preliminarily enjoin the City from demolishing his properties. The district court denied plaintiffs request and plaintiff appealed to the Kansas Court of Appeals. Id. ¶ 5. In the meantime, the City is proceeding with demolition, and the first demolition was scheduled for early January of 2003.
The record does not indicate the terms of the contract or when the City entered into it. The record only indicates that plaintiff was told that the contract "would be renewed for each of three years and [that] he performed [the contract] without ever receiving notice of deficiency."Id. ¶ 3.
The record does not reveal any information about these properties.
The record does not reveal any information about any particular code violations or condemnation proceedings.
The record does not reveal any other information about the district court proceeding.
On December 20, 2002, plaintiff filed this suit alleging that defendants have retaliated against him on account of race by not renewing his janitorial contracts and seeking to demolish his properties, and that they have violated his civil rights under the United States Constitution and 42 U.S.C. § 1981, 1983 and 1985.
Analysis
I. Jurisdiction
In his complaint, plaintiff seeks to restrain the City from demolishing his properties and issuing his janitorial contract to another janitorial service. The Court first must determine whether it has jurisdiction over plaintiffs claims.
A. Demolition of Property Claims
To the extent that plaintiff seeks to enjoin the City from demolishing his properties, it appears that his constitutional claims are "inextricably intertwined" with issues which the state court has adjudicated. Federal trial courts do not have the power to hear what are essentially appeals from a state court decision. 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), 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." Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994). Generally, jurisdiction to review state-court decisions lies exclusively with appellate state courts and, ultimately, the United States Supreme Court. See Facio v. Jones, 929 F.2d 541, 543 (10th Cir. 1991). The Rooker-Feldman doctrine bars consideration of issues actually presented to and decided by a state court, and also bars consideration of constitutional claims that are "inextricably intertwined" with issues which the state court has adjudicated. See id.; Feldman, 460 U.S. at 486 ("Federal district courts do not have jurisdiction over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional.") (internal quotation omitted). "[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." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987). In other words, plaintiff may only pursue claims that are "separable from and collateral to" a state court judgment. Kiowa Indian Tribe v. Hoover, 150 F.3d 1163, 1170 (10th Cir. 1998) (citing Pennzoil, supra) see also Kenmen Eng'g v. City of Union, 314 F.3d 468, 473 (10th Cir. 2002).
The Shawnee County District Court has determined that the properties have numerous code violations and that the City may proceed with demolition. Plaintiff argues that his federal constitutional claims are distinct, in that they rely on federal constitutional protections. The Court disagrees. This Court lacks jurisdiction to entertain a direct or indirect challenge to the Shawnee County District Court decision, even if plaintiff alleges that the state court action was itself unconstitutional.
B. Janitorial Contract
To the extent that plaintiff seeks to restrain the City from issuing his janitorial contract to another janitorial service, his complaint does not allege a factual basis for federal jurisdiction. Generally, the "well-pleaded complaint" rule requires that the federal question appear on the face of the plaintiff's properly pleaded complaint. See Garley v. Sandia Corp., 236 F.3d 1200, 1207 (10th Cir. 2001) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) ("The presence or absence of federal-question jurisdiction is governed by the `well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.")). "The complaint must identify the statutory or constitutional provision under which the claim arises, and allege sufficient facts to show that the case is one arising under federal law."Collins v. County of Johnson, Kan., 2001 WL 950259, at *1 (D. Kan. July 12, 2001) (quoting Martinez v. United States Olympic Comm., 802 F.2d 1275, 1280 (10th Cir. 1986)).
Plaintiff's complaint alleges that the City has violated "his civil rights guaranteed under the Constitution of the United States and 42 U.S.C. § 1981, 1983, and 1985," Complaint (Doc. #1), but it does not allege sufficient facts to show that his claims arise under federal law. Pursuant to Rule 12(h)(3), Fed.R.Civ.P., the Court must dismiss an action whenever it lacks jurisdiction. See Tuck v. United Servs. Auto. Ass'n, 859 F.2d 842, 844 (10th Cir. 1988) (court has duty to determine subject matter jurisdiction sua sponte). Accordingly, the Court will dismiss plaintiffs complaint with leave to amend on or before February 11, 2003, to set forth facts sufficient to establish federal jurisdiction. See Curley v. Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001) (proper to afford plaintiff opportunity to amend unless patently obvious he could not prevail on facts alleged and amendment futile).
II. Temporary Restraining Order
Even if the Court had jurisdiction, it would overrule plaintiffs request for an emergency restraining order hearing. To prevail on a motion for a temporary restraining order, plaintiff must establish (1) that he will suffer irreparable injury unless the restraining order issues; (2) that the threatened injury outweighs whatever damage the proposed restraining order may cause defendants; (3) that if issued, the restraining order will not be adverse to the public interest; and (4) a substantial likelihood that he will eventually prevail on the merits.Tri-State Generation Transmission Ass'n Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th Cir. 1986) (citing Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980)); see Sprint Corp. v. DeAngelo, 12 F. Supp.2d 1188 (D. Kan. 1998).
In his complaint, plaintiff requests a temporary restraining order to prevent the City from issuing his janitorial contract to another janitorial service and demolishing his properties. See Complaint (Doc. #1). Absent from plaintiffs complaint, or his motion, is any showing that (1) plaintiff will suffer irreparable injury unless the restraining order issues; (2) the threatened injury outweighs whatever damage the proposed restraining order may cause defendants; (3) the restraining order, if issued, will not be adverse to the public interest; and (4) a substantial likelihood exists that plaintiff will eventually prevail on the merits.See Merrill Lynch Pierce Fenner Smith, Inc. v. Zimmerman, No. 96-2412-JWL, 1996 WL 707107, at *1 (D. Kan. Oct. 1, 1996); Three Ten Enters. v. Berrenberg Enters., Inc., No. 94-2130-GTV, 1994 WL 243773, at *2 (D. Kan. May 13, 1994). In particular, plaintiff has not alleged that he will suffer irreparable injury. Even if the City issues the janitorial contract to another janitorial service and demolishes plaintiffs properties, plaintiffs losses would appear to be ones that can be remedied through an award of money damages. In addition, plaintiff has not shown a substantial likelihood that he will eventually prevail on the merits. The complaint and request for an emergency hearing are sparse on facts, to say the least, and they yield no suggestion that plaintiff can prevail on the merits. For these reasons, on the present record, the Court overrules plaintiffs request for an emergency restraining order hearing.
IT IS THEREFORE ORDERED that plaintiff's Request For Emergency Temporary Restraining Order Hearing (Doc. #2) filed December 23, 2002 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that plaintiff's Complaint For Emergency Temporary Restraining Order And Preliminary Injunctive Relief (Doc. #1) filed December 20, 2002 be and hereby is DISMISSED for lack of jurisdiction, with leave to amend on or before February 11, 2003, to set forth facts sufficient to establish federal jurisdiction.