Rester v. El Dorado, City of et al
MEMORANDUM OPINION. Signed by Honorable Susan O. Hickey on January 11, 2017. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
Case No. 1:15-cv-1052
CITY OF EL DORADO, an incorporated
Body through Mayor Frank Hash in his
Official Capacity as Mayor and the City Council
In their Individual Official Capacity as the City
Council of El Dorado 1
Before the Court is Defendant’s Motion for Summary Judgment. ECF No. 38. Plaintiff
has responded. ECF No. 42. Defendant has filed a reply. ECF No. 44. The Court finds this
matter ripe for its consideration.
On August 7, 2015, Plaintiff Sharmon Rester filed this action seeking a declaratory
judgment and preliminary and permanent injunctive relief against Defendant, the City of El
Dorado. 2 Plaintiff claims that Defendant violated his due process and equal protection rights
under the Fifth and Fourteenth Amendments to the United States Constitution. (ECF No. 1, ¶
11). 3 These claims, however, have been narrowed so that Plaintiff is currently alleging only a
procedural due process claim under the Fourteenth Amendment. ECF No. 34, p. 3.
This case involves two properties located at 304-308 Robinson Street and 1005 Pecan
Street in El Dorado, Arkansas. Plaintiff is the owner of the Pecan Street property. On August
In a previous order, the Court clarified that the only Defendant in this case is the City of El Dorado. ECF No. 34,
Although the complaint states that Plaintiff is seeking money damages, his Pretrial Disclosure Sheet suggests that
he is only seeking a declaratory judgment and/or injunctive relief. ECF No. 36, p. 2.
The Court and Defendant have assumed that Plaintiff makes claims against the City pursuant to 42 U.S.C. § 1983,
although the Complaint does not mention this statute.
15, 2013, Defendant’s Code Enforcement Officer, Kirby Craig, sent a certified letter to Plaintiff
stating that a structure on the Pecan Street property was found to be a “fire/health hazard unsafe
and/or a public nuisance.” ECF No. 38-2, p. 4. The letter further stated that the “building [was]
in immediate need of repair and maintenance” and that Plaintiff had thirty days “to make the
building . . . habitable, secure, structurally sound, and brought up to the current Codes that shall
apply, or remove [the building] and clean up all the debris from the premises.” ECF No. 38-2, p.
4. The letter informed Plaintiff that “[i]f action [was] not taken the matter [would be] turned
over to the City Council of El Dorado for Condemnation.” ECF No. 38-2, p. 4. Plaintiff’s wife
signed for the letter on August 15, 2013. Plaintiff, however, maintains that he never saw the
On October 24, 2013, the City Council passed a resolution condemning the Pecan Street
structure based on its deficiencies. ECF No. 38-2, p. 6. Plaintiff received actual notice of this
resolution via mail, ECF No. 38-1 pp. 14-15, 18-19. Additionally, notice was posted on the
structure located on the Pecan Street property and published in the local newspaper. ECF No.
38-2, ¶. 5. After Plaintiff received notice of the resolution, he spoke to Kirby Craig about
working to improve the property. After this conversation, at least one year passed without
Plaintiff taking any action to “fix” the property. ECF No. 38-2, ¶ 6. Defendant then razed the
structure located on the Pecan Street property. On June 1, 2015, Plaintiff entered into an
agreement with Defendant to pay for half of the costs Defendant incurred in demolishing the
On August 7, 2015, Plaintiff filed the current lawsuit alleging that his Fourteenth
Amendment rights were violated by Defendant because he “was not afforded an opportunity to
be heard . . . or [given] notice for [the] actions of condemnation and the subsequent demolition of
[his] property.” ECF No. 1, ¶ 11. Defendant, however, argues that it is entitled to summary
judgment regarding the Pecan Street property.
At some point during this litigation, Plaintiff indicated that he was also making a
procedural due process claim regarding a second property located at 304-308 Robinson Street.
The Robinson Street property is titled in the name of Lois Bailey, who is Plaintiff’s mother. On
February 6, 2014, a certified letter was sent to Bailey notifying her that a structure located on the
Robinson Street property had been found to be a “fire/health hazard, deemed unsafe and/or a
public nuisance due to abandonment or neglect.” ECF No. 38-2, p. 18. The letter further stated
that if the unsafe conditions regarding the structure were not abated, the matter would be
submitted to the City Council for condemnation proceedings. The letter, however, was returned
“unclaimed.” ECF No. 38-2, p. 19.
The Robinson Street property was condemned by the City Council via a resolution passed
on June 17, 2014. The resolution was posted on the structures located at 304-308 Robinson
Street, and notice of the resolution was published in a local newspaper. Bailey is not a party to
the present lawsuit, and the City has not razed any structure located on the Robinson Street
property. Plaintiff argues that his procedural due process rights were violated because the
property was condemned without affording him notice of the condemnation proceedings and an
opportunity to be heard.
Defendant, however, argues that Plaintiff’s claim regarding this
property should be dismissed because Plaintiff is not the legal owner of the Robinson Street
property and does not have standing to bring a claim regarding this property.
The Court will first address the preliminary issue of whether Plaintiff has standing to
bring his procedural due process claim regarding the Robinson Street property. The Court will
then address Defendant’s argument that it is entitled to summary judgment regarding the Pecan
The complaint does not refer to any specific property at issue. Instead, the complaint
refers generically to “Plaintiff’s property.”
During discovery, Plaintiff clarified that two
El Dorado, Arkansas properties are at issue in this case:
1005 Pecan Street and 304-308
Robinson Street. Defendant asserts that Plaintiff lacks standing to bring claims regarding 304308 Robinson Street because he does not own this property.
Standing is “assessed under the facts existing when the complaint is filed.” Lujan v.
Defenders of Wildlife, 504 U.S. 560, 569 n. 4 (1992). The Supreme Court has recognized three
requirements of Article III standing:
First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally
protected interest that is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of . . . . Third, it must
be likely, as opposed to merely speculative, that the injury will be redressed by a
United States v. Hays, 515 U.S. 737, 742-43 (1995) (quoting Lujan, 504 U.S. at 560-61). For
injunctions, an additional inquiry is required, namely that Plaintiff show that he is likely to suffer
future injury by Defendant and that the sought-after relief will prevent that future injury. See
City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (“Past exposure to illegal conduct does not
in itself show a present case or controversy regarding injunctive relief.” (internal quote omitted));
see also Pederson v. Louisiana State Univ., 213 F.3d 858, 869 (5th Cir. 2000).
Generally, Plaintiff must assert his own legal rights and interests and “cannot rest a claim
to relief on the legal rights or interests of third parties.” Valley Forge Christian Coll. v. Ams.
United for Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982) (citing Warth v.
Seldin, 422 U.S. 490, 499 (1975)). This principle is based on the assumption that “third parties
themselves usually will be the best proponents of their own rights.” Singleton v. Wulff, 428 U.S.
106, 114 (1976) (plurality opinion). Because Defendant has challenged Plaintiff’s standing,
Plaintiff must demonstrate that he has standing by a preponderance of the evidence. See Lujan,
504 U.S. at 561.
There is no dispute that the Robinson Street property is titled in the name of Lois Bailey,
who is Plaintiff’s mother. The Union County, Arkansas property records list Lois Bailey as
owner. Plaintiff, however, contends that he has standing to bring the claims regarding 304-308
Robinson Street because he “takes care of the property” and “his mother purchased this property
with the intent of Plaintiff having control, both legally and physical(ly).” ECF No. 42. Lois
Bailey claims that Plaintiff has “expressed his intention to change the registration to his name but
has not been able to do so.” ECF No. 42-1, p. 2.
Although it appears that Plaintiff expects to have a legal interest in the Robinson Street
property at some point in the future, there is nothing in the record to indicate when or if the deed
of the property will be transferred to Plaintiff. Plaintiff is not the present legal owner of the
property, and he has not shown that he is likely to suffer future injury by Defendant. Plaintiff
does not point the Court to any injury he has suffered or is likely to suffer in the future because
of Defendant’s present or future conduct. Thus, he has suffered no injury in fact. Accordingly,
Plaintiff does not have standing to bring this lawsuit regarding the Robinson Street property. 4
Although Plaintiff does not explicitly make this argument, Plaintiff could be implying that he has third-party
standing to assert Lois Bailey’s claims regarding the Robinson Street property. “Third-party standing is an
exception to the general rule that a plaintiff may only assert his own injury in fact and permits a litigant who lacks a
legal claim to assert the rights of third parties.” Hodak v. City of St. Peters, 535 F.3d 899, 904 (8th Cir. 2008). To
invoke this “narrow” exception, Plaintiff must show that he suffered an injury in fact, that he enjoys a close
relationship to Lois Bailey, and that she is “hindered in [her] ability to protect [her] own interests.” Id. Plaintiff has
not pointed to anything in the record that would suggest that he has or will suffer an injury in fact or that Lois Bailey
is hindered in her ability to protect her own interests. In fact, Plaintiff states that Lois Bailey is competent to handle
B. Summary Judgment
Turning now to the merits of Plaintiff’s Fourteenth Amendment procedural due process
claim regarding the Pecan Street property, Defendant argues that it is entitled to summary
judgment. A motion for summary judgment will be granted if the “pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact, and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). To establish that a genuine issue of material
fact exists, the nonmoving party must show that (1) there is a factual dispute, (2) the disputed
fact is material to the outcome of the case, and (3) the dispute is genuine. RSBI Aerospace, Inc.
v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995). A dispute is genuine only if a
reasonable jury could return a verdict for either party. Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986). The party opposing a motion for summary judgment must rely on more than
conclusory statements or allegations unsupported by facts. Davis v. U.S. Bancorp, 383 F.3d 761,
765 (8th Cir. 2004) (citation omitted).
A procedural due process claim must meet two elements to be proven. First, Plaintiff
must establish that the state deprived him of “some life, liberty, or property interest.” Krentz v.
Robertson Fire Prot. Dist., 228 F.3d 897, 902 (8th Cir. 2000) (internal quotation marks omitted).
Then, Plaintiff must “establish that the state deprived him of that interest without sufficient
process.” Id. (internal quotation omitted). Defendant asserts that it is entitled to summary
judgment because Plaintiff has waived his procedural due process claim by failing to exhaust
state remedies. Plaintiff responds that there is no state remedy available to Plaintiff and thus
exhaustion is not required.
her own legal affairs. ECF No. 38-1, p. 35. Thus, Plaintiff would not have third-party standing to assert the claims
for Lois Bailey.
A procedural due process claim “is not complete when the deprivation occurs; it is not
complete unless and until the State fails to provide due process.” Zinermon v. Burch, 494 U.S.
113, 126 (1990). A plaintiff must exhaust all state remedies available to him before bringing a
§ 1983 claim, including judicial remedies. See Wax ‘n Works v. City of St. Paul, 213 F.3d 1016,
1019 (8th Cir. 2000); Corder v. City of Sherwood, 579 F. Supp. 1042 (E.D. Ark. 1984). A
plaintiff “cannot complain of a violation of due process when he has not availed himself of
existing procedures.” Anderson v. Douglas Cty., 4 F.3d 574, 578 (8th Cir. 1993); See Roy v. City
of Little Rock, 902 F. Supp. 871, 874 (E. D. Ark. 1995) (“[I]t appears that plaintiffs have waived
their procedural due process claim, given that they declined to exercise their statutory right to
appeal the city’s [Historic District] Commission’s denial of their application [for a demolition
Under Arkansas Code Annotated § 14-56-425 and Arkansas District Court Rule 9(f), a
party may appeal a final decision of a municipal body within thirty days of the council’s decision
to an Arkansas Circuit Court. Ingram v. City of Pine Bluff, 133 S.W.3d 382 (Ark. 2003).
Defendant argues that because Plaintiff did not take advantage of this state remedy, he has
waived his procedural due process claim. Plaintiff, however, summarily asserts that exhaustion
is not required and that Arkansas Code Annotated § 14-56-425 “has no relevance to the issues
presented in this case.” ECF No. 42, p. 6.
Plaintiff does not cite any authority to support his conclusory argument that Arkansas
Code Annotated § 14-56-425 does not apply here. The statute provides that appeals from final
action of administrative and quasi-judicial agencies concerned with municipal building and
zoning regulations may be taken to the circuit court of the appropriate county “using the same
procedure as for administrative appeals of the District Court Rules of the Supreme Court.” Ark.
Code Ann. §14-56-425. That procedure is found in Rule 9 of the District Court Rules and allows
thirty days for taking an appeal. The Court is unaware of any reason why Arkansas Code
Annotated § 14-56-425 would not apply to the City Council’s resolution condemning Plaintiff’s
Plaintiff admits that he received actual notice by mail that on October 24, 2013, the City
Council passed a resolution condemning the Pecan Street property. 5 ECF No. 38-1, pp. 18-21;
ECF No. 42-2, p. 2. It is undisputed that Plaintiff received notice of the condemnation resolution
shortly after the resolution was passed. ECF No. 38-1, p. 19. Plaintiff subsequently contacted a
City Council member and Code Enforcement Officer, Kirby Craig, regarding the condemned
property. ECF No. 38-1, pp. 19-22, ECF No. 38-2, ¶ 6. Plaintiff, however, admits that he did
not attempt to appeal the decision of the City Council. ECF No. 38-1, pp. 22-23.
“The fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” Hroch v. City of Omaha, 4 F.3d 693, 696 (8th
Cir. 1993) (internal quotation marks omitted) (citing Mathews v. Eldridge, 424 U.S. 319, 333
(1976)). Plaintiff had that opportunity but failed to take advantage of it. Thus, the Court
concludes that summary judgment for Defendant should be granted regarding the Pecan Street
property. See Duvall v. City of Rogers, Ark., No. Civ. 05-5001, 2005 WL 3784932, at *4 (W.D.
Ark. Dec. 20, 2005) (concluding that a landowner was not entitled to relief on her procedural due
process claim because she received actual notice of the city’s condemnation decision and failed
to appeal the decision to circuit court).
For the reasons stated herein, the Court finds that Defendant’s Motion for Summary
Judgment (ECF No. 38) should be and hereby is GRANTED. Plaintiff’s procedural due process
The City Council’s resolution condemning the Pecan Street property was also posted at the property and published
in the local newspaper beginning on October 31, 2013.
claim as to the Pecan Street property is dismissed. Further, the Court concludes that Plaintiff
does not have standing to bring a claim regarding the Robinson Street property, and any claim
regarding this property is also dismissed. A Judgment of even date consistent with this opinion
IT IS SO ORDERED, this 11th day of January, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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