Warcola v. Halikowski

Filing 13

ORDER: Defendant's motion to dismiss 5 is granted. Plaintiff's motion to order ADOT to cease and desist is denied. The Rule 16 Case Management Conference set for August 30, 2014 at 4:00 p.m. is vacated. Signed by Judge David G Campbell on 1/30/2014.(ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Doris Ann Warcola,

No. CV-13-08264-PCT-DGC
Plaintiff,

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v.

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ORDER

John Halikowski,

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Defendant.

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Defendants have filed a motion to dismiss pursuant to Rule 12(b)(6). Doc. 5. The

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motion has been fully briefed. Docs. 9, 10. Neither party has requested oral argument.

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For the reasons stated below, the Court will grant the motion.

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I.

Legal Standard.

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When analyzing a complaint for failure to state a claim to relief under Rule

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12(b)(6), the well-pled factual allegations “‘are taken as true and construed in the light

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most favorable to the nonmoving party.’” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th

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Cir. 2009) (citation omitted). Legal conclusions couched as factual allegations “are not

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entitled to the assumption of truth,” Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and

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therefore “‘are insufficient to defeat a motion to dismiss for failure to state a claim,’” In

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re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010) (citation omitted). To avoid a

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Rule 12(b)(6) dismissal, the complaint must plead “enough facts to state a claim to relief

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that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This

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plausibility standard “is not akin to a ‘probability requirement,’ but it asks for more than

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a sheer possibility that a defendant has acted unlawfully.”

Iqbal, 556 U.S. at 678

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(quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the

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court to infer more than the mere possibility of misconduct, the complaint has alleged B

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but it has not ‘show[n]’ B ‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed.

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R. Civ. P. 8(a)(2)). Dismissal is appropriate where the complaint lacks a cognizable legal

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theory, lacks sufficient facts alleged under a cognizable legal theory, or contains

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allegations disclosing some absolute defense or bar to recovery.

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Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988); Weisbuch v. County of L.A., 119

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F.3d 778, 783, n. 1 (9th Cir.1997).

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II.

See Balistreri v.

Analysis.

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A.

Plaintiff’s Complaint.

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Plaintiff’s handwritten complaint asserts that the Arizona Department of

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Transportation (“ADOT”) is taking her property, located at 1080 White Spur Rd. in

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Prescott, Arizona, for a road project on Route 89 in Prescott, leaving her no space for

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parking her vehicles and “rendering [her] property unliveable and unsellable.” Doc. 1 at

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2. Plaintiff alleges that she is concerned for her personal safety in light of a proposed

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“new right-away [sic] so close to [her] property.” Id. Attached to the complaint are a

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series of photographs of Plaintiff’s property and the road construction taking place near

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it. Plaintiff also filed a motion to “cease and desist ADOT’s Route #89 Road Project,”

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demanding that ADOT “stop the taking of my property, causing me no parking, until it’s

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been settled by the court.” Doc. 2 at 1-2. The complaint demands that Defendants

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“Leave 1080 White Spar Road property alone or buy me out.” Doc. 1 at 1.

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The complaint contains virtually no facts and no plausible claim for relief. Other

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than stating “Complaint, Inverse Condemnation,” the complaint fails to state the legal

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nature of Plaintiff’s claims or the basis for this Court’s jurisdiction.

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B.

Motion to Dismiss.

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ADOT argues that this case should be dismissed because Ms. Warcola has not

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exhausted all available state remedies, has failed to comply with A.R.S. § 12-821, and is

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attempting to litigate an issue that has already been determined by a state court. Doc. 5 at

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1. Defendants claim that “there is existing Arizona law that provides a cause of action in

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inverse condemnation,” but that Plaintiff has failed to utilize it and that, therefore, her

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action in federal court must be dismissed.

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Plaintiff has not cited 42 U.S.C § 1983 or the Takings Clause of the U.S.

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Constitution as the basis for her claim, but the complaint fails as a matter of law even if

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the Court construes it as asserting such claims. A violation of the Takings Clause does

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not occur until just compensation has been denied, and Plaintiff must use available state

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procedures to seek such compensation before bringing a § 1983 takings claim in federal

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court. Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 687 (9th Cir. 1993). In

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Arizona, “the legislature, pursuant to its grant of authority under Ariz. Const. art. 2, § 17,

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has provided statutory remedies for acts of eminent domain, see A.R.S. § 9–518, and

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inverse condemnation, see A.R.S. § 11–972 and A.R. S. § 12–1111 et seq.” City of

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Phoenix v. Superior Court In and For Cnty. of Maricopa, 762 P.2d 128, 132 (Ariz. Ct.

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App.1988). For inverse condemnation actions, A.R.S. § 12-1124 provides the remedy of

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compensation and money damages. Id. Because Arizona law provides an adequate

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remedy for takings, Plaintiff must pursue that claim before asserting a taking claim under

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the Fifth Amendment. See Austin v. City and Cnty. of Honolulu, 840 F.2d 678, 682 (9th

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Cir. 1988). The proper disposition for an unripe federal takings claim is dismissal

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without prejudice. See Macri v. King County, 126 F.3d 1125, 1129 (9th Cir. 1997).

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C.

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Plaintiff asks the Court to order ADOT to stop its road project on Highway 89 and

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to stop the “taking” of her property until this case has been resolved. Doc. 2. Defendant

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argues that this request is without merit because it is a state court issue that has already

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been decided.

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immediate possession was the subject of a hearing before the Arizona Superior Court of

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Yavapai County on October 8, 2012, in which an Order for Immediate Possession was

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granted to the condemning agency. Doc. 5 at 4.

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Motion to Cease and Desist.

Doc. 5 at 3.

Specifically, Defendants assert that their request for

Arizona law allows the taking of private property for a public use. A.R.S. § 12-

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1111 et seq. A road, street, or alley “for the benefit of a county, city, town or village” is

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considered an acceptable use under Arizona law. Id. at § 12-1111(6); see also Oury v.

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Goodwin, 26 P. 376, 378 (Ariz. 1891). Upon filing a complaint under § 12-1111 et seq.,

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“plaintiff may apply to the court for an order permitting the plaintiff to take possession of

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and use the property sought to be condemned.” A.R.S. § 12-1116. This statute allows

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the agency condemning the property to take immediate possession of the condemned

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property. Desert Waters, Inc. v. Superior Court In & For Pima Cnty., 370 P.2d 652

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(Ariz. 1962) (finding the immediate possession statute constitutional). Defendants assert

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that the unresolved issue of just compensation for Plaintiff is currently pending in that

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condemnation proceeding. Doc. 10 at 3.

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Given the pendency of the state condemnation action, and Plaintiff’s failure to

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articulate any grounds upon which the Court could issue injunctive relief in this matter,

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Plaintiff’s request to order ADOT to cease and desist is denied.

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III.

Leave to Amend and Plaintiff's Obligations.

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In this circuit, “[a] pro se litigant must be given leave to amend his or her

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complaint unless it is absolutely clear that the deficiencies of the complaint could not be

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cured by amendment.” Karim–Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th

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Cir.1988). The deficiencies in Plaintiff’s complaint cannot be cured by amendment given

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the pendency of the state condemnation action.

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IT IS ORDERED:

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1.

Defendant’s motion to dismiss (Doc. 5) is granted.

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2.

Plaintiff’s motion to order ADOT to cease and desist is denied.

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3.

The Rule 16 Case Management Conference set for August 30, 2014 at 4:00

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p.m. is vacated.

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Dated this 30th day of January, 2014.

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