Opinion
EP-04-CV-439-PRM.
June 16, 2005
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
On this day, the Court considered Defendants' Joe Wardy, Susan Austin, Jose A. Lozano, John F. Cook, Presi Ortega, Paul J. Escobar, Vivian Rojas, and Anthony W. Cobos ("Defendants") "Motion to Dismiss for Lack of Subject Matter Jurisdiction" ("Motion") filed on January 4, 2005, and Plaintiff John Fox's "Answer to Defendant's Motion to Dismiss for Lack of Jurisdiction" ("Response") filed on January 26, 2005, in the above-captioned cause.
After careful consideration, the Court is of the opinion that Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction should be granted in part and denied in part, for the reasons set forth below.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff John Fox is the owner of an apartment complex located at 3815 Truman Avenue in El Paso, Texas. Plaintiff used or attempted to use this property as apartment rental property.
On August 12, 2003, the El Paso City Council met in regular session and, among other things, passed a resolution condemning some portion of Plaintiff's property. As a result of the condemnation, Plaintiff's apartments were ordered to be vacated and secured until reconstructed to meet current codes. A public hearing was scheduled to take place on October 7, 2003 "to determine if the Council Resolution of August 12th, 2003, for the property located at 3815 Truman Avenue, in the City of El Paso . . . has been complied with and to determine penalties if the Council Resolution has not been complied with." Plaintiff's Response to Defendant's Original Answer, Ex. B, Proposed Agenda for Regular Council Meeting. It is undisputed that the October 7th public hearing was never held, the item having been deleted from the City Council Agenda.
On November 23, 2004, Plaintiff, proceeding pro se, filed suit against the individual members of the El Paso City Council pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendants' refusal to issue a legal dismissal of the condemnation was (1) an act of deliberate indifference that deprived Plaintiff of his property, and (2) a violation of his Fifth and Fourteenth Amendment rights. Plaintiff does not appear to challenge the City Council's August 12th decision to condemn his property. Instead, he challenges the City Council's decision to delete the October 7th public hearing from the Agenda.
Defendants filed the instant motion pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Defendants argue that, although Plaintiff has articulated violations of the Fifth and Fourteenth Amendments, he is actually alleging unripe takings claims, which must be dismissed for lack of subject matter jurisdiction.
II. ANALYTICAL STANDARD
The Supreme Court has held that a pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se briefs are "not held to the standard of exactitude expected of briefs by attorneys." Dillon v. Tex. Comm'n on Envtl. Quality, No. 04-41307, 2005 U.S. App. LEXIS 9345, at *3 (5th Cir. May 23, 2005) (unpublished opinion). Pro se pleadings must also be liberally construed. Barksdale v. King, 699 F.2d 744, 746 (5th Cir. 1983).
According to Fifth Circuit Rule 47.5.4, an unpublished opinion issued after January 1, 1996 is not precedent, but may be persuasive. The Court finds Dillon persuasive, and, thus, applicable to the present case. 5TH CIR. R. 47 .5.4 (stating "unpublished opinions . . . may be persuasive").
Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case. FED. R. CIV. P. 12(b)(1). "Regardless of the character of the Rule 12(b)(1) motion, it is well-settled that the complaint will be construed broadly and liberally . . . particularly when it is presented by a litigant who is proceeding pro se. . . ." 3B CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1350, 180-81 (3d ed. 2004); see Magana v. Hammer Steel, Inc., 206 F. Supp. 2d 848, 851 (S.D. Tex. 2002) ("Even where a plaintiff's complaint fails to cite the proper statute conferring jurisdiction, the omission will not defeat jurisdiction as long as the facts alleged satisfy jurisdictional requirements"). "In addition, it has been well-established by the case law that the pleading will be read as a whole with any relevant specific allegations found in the body of the complaint taking precedence over the formal jurisdictional allegation. . . ." 3B WRIGHT MILLER § 1350 at 185-88; see Aquafaith Shipping, Ltd. v. Jarillas, 963 F.2d 806, 808 (5th Cir. 1992) ("[W]hen a court performs its duty to verify that it has jurisdiction, it may be required to survey the entire record. . . ."); see also Cook v. Winfrey, 141 F.3d 322, 326 (7th Cir. 1998) ("Imperfections in pleading style will not divest a federal court of jurisdiction where the complaint as a whole sets forth a proper basis for jurisdiction").
As a pro se litigant, Plaintiff is entitled to have the Court liberally construe his complaint. In doing so, the Court recognizes several possible claims: (1) a takings claim; (2) a procedural due process claim; (3) a substantive due process claim; and (4) an equal protection claim. The Court must now determine whether Plaintiff's complaint as a whole sets forth a proper basis for jurisdiction based on each possible claim, notwithstanding imperfections in pleading style.
III. DISCUSSION
A. Takings Claim
The Fifth Amendment provides that private property may not be taken for public use without just compensation. U.S. CONST. AMEND V. The Supreme Court has applied the Just Compensation Clause to the States through the Fourteenth Amendment. Chicago, B. Q.R.R. Co. v. Chicago, 166 U.S. 226, 241 (1897).
"[T]o constitute a taking under the Fifth Amendment it is not necessary that property be absolutely `taken' in the narrow sense of that word to come within the protection of this constitutional provision; it is sufficient if the action by the government involves a direct interference with or disturbance of property rights." R.J. Widen Co. v. United States, 357 F.2d 988, 993 (1966). There is a "taking" of property when government action "directly interferes with or substantially disturbs the owner's use and enjoyment of the property." Pete v. United States, 531 F.2d 1018, 1031 (1976).
Plaintiff, in his Complaint, maintains that the issue before the Court is "[t]he refusal of the El Paso City Council to issue a formal dismissal of the before mentioned condemnation proceedings against plaintiff's property after deletion from it's [sic] agenda . . ." which ". . . deprived plaintiff of the right to inhabit, rent, or place for rent 9 apartments, from October 7, 2003 to present." Plaintiff's Answer to Defendant's Motion to Dismiss for Lack of Jurisdiction. Plaintiff further argues that this is not a takings case because, "Plaintiff's property has not been taken by the city of El Paso. Plaintiff is currently renting the portion of the property that did not have the electric meters removed." Id.
Whether or not Plaintiff is able to rent the portion of the property that did not have electric meters removed in no way determines whether a "taking" of property has occurred. Given the Plaintiff's claim that the Defendants have deprived Plaintiff of his right to inhabit, rent, or place for rent his own property, Plaintiff's claim appears to allege a government action that directly interferes with the Plaintiff's use and enjoyment of his property. Plaintiff's claim may therefore be characterized as a takings claim under the Fifth Amendment.
The Supreme Court established a two-pronged ripeness test regarding federal takings claims in Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The Court held that a takings claim is not ripe until (1) the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue, and (2) the plaintiff has sought compensation through whatever adequate procedures the State has provided. Id. at 186, 194.
"For a federal takings claim to become ripe, the plaintiff is required to seek compensation through the procedures the state has provided unless those procedures are unavailable or inadequate." Vulcan Materials Co. v. City of Tehuacana, 238 F.3d 382, 385 (5th Cir. 2001); see also Sandy Creek Investors, Ltd. v. City of Jonestown, 325 F.3d 623, 626 (5th Cir. 2003); Hidden Oaks Ltd. v. The City of Austin, 138 F.3d 1036, 1041 (5th Cir. 1998); Samaad v. City of Dallas, 940 F.2d 925, 933-34 (5th Cir. 1991). "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." Williamson County, 473 U.S. at 195.
For a regulatory taking, Texas provides a cause of action for inverse condemnation, enabling a property owner to seek just compensation. Town of Flower Mound v. Safford Estates Ltd. P'ship, 135 S.W.3d 620, 646 (Tex. 2004). Thus, Texas provides "an adequate procedure for seeking just compensation" for an alleged taking. Id.
The Supreme Court has described two distinct categories of regulatory action that constitute a taking. "The first encompasses regulations that compel the property owner to suffer a physical `invasion' of his property. In general, at least with regard to permanent invasions, no matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have required compensation." Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992). "The second situation in which we have found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of land." Id. This second situation is commonly referred to as a "regulatory taking."
Thus, Plaintiff's takings claim is not yet ripe for the Court's review because he has not pursued or availed himself of mandated state court remedies. Until Plaintiff has utilized Texas' inverse condemnation procedure, his challenge to the taking is premature and the Court lacks jurisdiction over his claim. Williamson County, 473 U.S. at 196; see also City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 714-15 (1999) ("Even when the government takes property without initiating condemnation proceedings, there is no constitutional violation unless or until the state fails to provide an adequate postdeprivation remedy for the property loss.").
B. Procedural Due Process
No state may deprive any person of property without due process of law. U.S. CONST. AMEND. XIV § 1. The Due Process Clause encompasses the protection of a guarantee of fair procedure. The Supreme Court has consistently held that "some form of hearing is required before an individual is finally deprived of a property interest." Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citations omitted); see also United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993) ("Our precedents establish the general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them of property.").
A § 1983 action may be brought for a violation of one's procedural due process rights. For procedural due process claims, the deprivation by state action of a constitutionally protected interest in "life, liberty, or property" is not itself unconstitutional — what is unconstitutional is the deprivation of such an interest without due process of law. Parratt v. Taylor, 451 U.S. 527, 537 (1981) overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331 (1986); Carey v. Piphus, 435 U.S. 247, 259 (1978) ("Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property").
A § 1983 procedural due process claim presents a federal question that clearly falls within the subject matter jurisdiction of the Court. In contrast to the exhaustion requirements for takings claims, there is no requirement that a plaintiff first exhaust state remedies to bring Fourteenth Amendment procedural due process claims under § 1983. Zinermon v. Burch, 494 U.S. 113, 124 — 26 (1990). Furthermore, Defendants have failed to address this claim in their motion to dismiss. Thus, Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction as to Plaintiff's procedural due process claim must be denied.
C. Substantive Due Process Claim
"To prevail on a substantive due process claim under § 1983, a plaintiff must establish as a threshold matter that he has a protected property interest to which the Fourteenth Amendment's due process protection applies." Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir. 2000). Ownership in and use and enjoyment of property are interests protected by substantive due process. DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 600-01 (3d Cir. 1995). No party disputes that Fox owns the property in question.
A § 1983 substantive due process claim presents a federal question that falls within the Court's subject matter jurisdiction. Again, Defendants have failed to address the claim in their motion to dismiss. Thus, Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction as to Plaintiff's substantive due process claim must be denied.
D. Equal Protection Claim
District courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person "[t]o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States. . . ." 28 U.S.C. § 1343(a)(3) (2005). Federal jurisdiction under § 1343 does not automatically exist whenever a plaintiff files a § 1983 claim, but a court may determine that federal jurisdiction exists by examining whether the underlying substantive right that was allegedly violated was conferred by the Constitution or by a civil rights statute. Maher v. Gagne, 448 U.S. 122, 129 (1980).
Plaintiff asserts that the Defendant members of the El Paso City Council violated his Equal Protection rights under the Fourteenth Amendment. Given that Equal Protection rights are conferred by the Constitution, Plaintiff asserts a cognizable claim that can be vindicated by way of a § 1983 action. The claim presents a federal question that falls within the subject matter jurisdiction of the Court. Again, Defendants did not address this claim in their motion to dismiss. Thus, Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction as to Plaintiff's equal protection claim must be denied.
IV. CONCLUSION
Based on the foregoing analysis of facts and legal principles, the Court concludes that Plaintiff's takings claim should be dismissed for failure to exhaust mandated state court remedies. However, the Court also concludes that federal subject matter jurisdiction exists as to Plaintiff's procedural due process, substantive due process, and equal protection claims against the Defendants.
Accordingly, IT IS ORDERED that Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction as to Plaintiff's takings claim is GRANTED. IT IS FURTHER ORDERED that Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction as to Plaintiff's procedural due process, substantive due process, and equal protection claims is DENIED WITHOUT PREJUDICE.
Given that Defendant's Motion is filed based solely up on Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court's consideration is limited to the parameters of that section. The Court denies the Defendant's Motion as to certain claims based upon Defendant's failure to address those claims. The Court will entertain any additionally filed pleadings Defendant may deem appropriate in light of the Court's opinion.