Johnson et al v. City of Nashville et al

Filing 26

MEMORANDUM OPINION AND ORDER denying 15 Motion for Summary Judgment filed by James Parker, Freddy Brown, Jackie Harwell, Nick Davis, Billy Ray Jones, Mike Reese, Monica Clark, Matt Smith, City of Nashville, Mike Milum, Jimmie Lou Kirkpatrick, Carol Mitchell, Andy Anderson, Kay Gathright, Jerry Harwell. Signed by Honorable Susan O. Hickey on November 23, 2016. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
CARL JOHNSON and
JUSTIN JOHNSON
V.

PLAINTIFFS
CASE NO. 4:15-CV-04033

CITY OF NASHVILLE, A
MUNICIPAL CORPORATION, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Before the Court is a Motion for Summary Judgment filed by Defendants City of
Nashville, Arkansas; Billy Ray Jones; Mike Reese; Freddy Brown; Matt Smith; Jackie Harwell;
Nick Davis; Monica Clark; Vivian Wright; Jimmie Lou Kirkpatrick; Kay Gathright; James
Parker; Carol Mitchell; Andy Anderson; Mike Milum; and Jerry Harwell. ECF No. 15. Plaintiffs
have filed a response. ECF No. 18. The Court finds this matter ripe for consideration.
I. BACKGROUND
On March 24, 2016, Defendants filed the present Motion for Summary Judgment. ECF
No. 15. The Complaint names the following defendants: (1) The City of Nashville, a municipal
corporation; (2) Jerry Harwell, Fire Marshal; (3) Mike Reese, former mayor of the City of
Nashville, (4) Billy Ray Jones, Mayor of the City of Nashville; (5) Freddy Brown, Matt Smith,
Jackie Harwell, Nick Davis, Monica Clark, Vivian Wright, Jimmie Lou Kirkpatrick, Kay
Gathright, James Parker, Carol Mitchell, Andy Anderson, and Mike Milum “in their official
capacity” as city council members for the City of Nashville; and (6) Tomco, Inc. 1

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Plaintiffs’ claims against Tomco, Inc. were dismissed by this Court on May 14, 2015. ECF No. 11.

Plaintiffs are co-owners of a business formerly located at 216 N. Main Street in
Nashville, Arkansas. ECF No. 1, p. 3. Plaintiff Carl Johnson has operated a business at that
location since 2008. ECF No. 1, p. 3. On the afternoon of August 26, 2010, a fire started in a
neighboring store and spread to the building owned by Plaintiffs. ECF No. 1, p. 3. Numerous fire
departments responded and eventually extinguished the fire. ECF No. 1, p. 3. Plaintiffs allege
that once Carl Johnson was given notice of the fire, he called the Nashville Fire Department and
was told his building would not be demolished. ECF No. 1, p. 4. After the fire was extinguished,
Defendant Jerry Harwell, in his role as Fire Chief and Fire Marshal for the City of Nashville,
ordered that Plaintiffs’ building be demolished. ECF No. 1, p. 4. Plaintiffs’ building was
subsequently demolished and the inventory located inside was destroyed or damaged. ECF No.
1, p. 4. Plaintiffs were in San Antonio, Texas, at the time of the fire and demolition and were
neither given notice of the decision nor provided an opportunity to respond. ECF No. 1, p. 4.
Plaintiffs allege and have provided supporting evidence that multiple individuals
questioned and protested the necessity of demolishing 216 N. Main Street and that at least one
person was prepared to board up the doors and windows of the premises after the fire was
extinguished. ECF No. 1, p. 4, ECF Nos. 18-1 & 18-2. Plaintiffs have also provided supporting
affidavits for their argument that it was not necessary to demolish 216 N. Main Street as a means
of protecting public safety, health, or welfare. ECF Nos. 18-1 & 18-2. Plaintiffs allege that the
demolition of 216 N. Main Street constitutes a violation of “Plaintiffs’ due process and equal
protection rights, in accordance with the Fifth and Fourteenth Amendments to the United States
Constitution, and to Plaintiffs’ right against ‘unreasonable searches and seizure [sic]’ under the
Fourth Amendment.” ECF No. 1, p. 5.

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Plaintiffs seek relief pursuant to 42 U.S.C. § 1983. Plaintiffs pray for “[(1)] a Declaratory
Judgment that the demolition of Plaintiffs’ building and destruction of the building’s contents
without prior notice and an opportunity to be heard is a violation of due process and equal
protection and was deliberately indifferent in violation to 42 U.S.C. § 1983 and the Fifth and
Fourteenth Amendments and constitutes a ‘seizure’ with [sic] the meaning of the Fourth
Amendment; [(2)] for an Injunction Prohibiting future perpetuation of the Policies and Customs
complained of; . . . [(3)] judgment against Defendants . . . in the amount of $224,985.00 as the
replacement costs of the building and $927,320.00 as the fair market value of Plaintiffs’
inventory; [and (4) an award of] attorney’s fees and costs and for such other relief as the Court
deems proper.” ECF No. 1, pp. 6-7.
In their Answer, Defendants state that Defendant Jerry Harwell was one of the
individuals who made the decision to demolish the building, but claim that he acted pursuant to
the International Fire Code (“Fire Code”) as adopted by the State of Arkansas in 2007, not
pursuant to a standing policy or custom of the City of Nashville. ECF No. 8, p. 3. Defendants
further state that none of Plaintiffs’ friends or family would have been permitted to enter the
building after the fire was extinguished. ECF No. 8, p. 3.
II. LEGAL STANDARD
The Federal Rules of Civil Procedure provide that when a party moves for summary
judgment:
The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.
Fed. R. Civ. P. 56(a). The Supreme Court has issued the following guidelines for trial courts to
determine whether this standard has been satisfied:
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The inquiry performed is the threshold inquiry of determining whether there is a
need for trial—whether, in other words, there are genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Agristor Leasing v. Farrow,
826 F.2d 732 (8th Cir. 1987); Niagara of Wis. Paper Corp. v. Paper Indus. Union-Mgmt.
Pension Fund, 800 F.2d 742, 746 (8th Cir. 1986). A fact is material only when its resolution
affects the outcome of the case. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence
is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252.
The Court must view the evidence and the inferences that may be reasonably drawn from
the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna
Bank, 92 F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that there
is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. The
nonmoving party must then demonstrate the existence of specific facts in the record that create a
genuine issue for trial. Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). A party
opposing a properly supported motion for summary judgment may not rest upon mere allegations
or denials, but must set forth specific facts showing that there is a genuine issue for trial.
Anderson, 477 U.S. at 256.
III. DISCUSSION
The Court will first address the capacity in which Plaintiffs have sued Defendants. Next,
the Court will examine the issue of municipal liability in regard to Defendant City of Nashville.
Finally, the Court will consider Defendants’ argument that summary judgment is warranted on
the ground of adequate state remedies for Plaintiffs’ injuries.

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A. Capacity in Which Defendants Have Been Sued
As an initial matter, it is unclear from the face of the Complaint (ECF No. 1) whether
Plaintiffs are suing certain Defendants in both their individual and official capacities or in only
their official capacities.
It is well established in the Eighth Circuit that “[i]f a plaintiff’s complaint is silent about
the capacity in which [he] is suing the defendant, we interpret the complaint as including only
official-capacity claims.” Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007) (quoting Egerdahl
v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995)). Further, “[i]f the complaint does not
specifically name the defendant in his individual capacity, it is presumed he is sued only in his
official capacity.” Id. (quoting Artis v. Francis Howell N. Band Booster Ass’n, Inc., 161 F.3d
1178, 1182 (8th Cir. 1998)); see Andrus ex rel Andrus v. Ark., 197 F.3d 953, 955 (8th Cir. 1999)
(“specific pleading of individual capacity is required”); Johnson v. Outboard Marine Corp., 172
F.3d 531, 535 (8th Cir. 1999) (“only an express statement that [public officials] are being sued in
their official capacity will suffice”); Murphy v. State of Ark., 127 F.3d 750, 754 (8th Cir. 1997)
(“a clear statement that officials are being sued in their personal capacities” is required).
Here, the Complaint (ECF No. 1) names, among others 2: “Jerry Harwel [sic], Fire
Marshal;” “Mike Reese, Former Mayor of the City of Nashville;” and “Billy Ray Jones, Mayor
of the City of Nashville[.]” The Complaint does not clearly state the capacity in which these
Defendants are being sued. Following the binding precedent of Baker and numerous Eighth
Circuit decisions, the Court must “interpret the complaint as including only official-capacity
claims.” This reading is supported by the fact that Plaintiffs included Defendants’ official titles

2

The Complaint (ECF No. 1) also names the individual members of the “City Counsel [sic]” of the City of
Nashville, but explicitly states that they are being sued in their official capacities.

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when they named each particular Defendant. Accordingly, the Court reads the Complaint (ECF
No. 1) as making claims against each Defendant only in his official capacity.
Because “an official-capacity suit is tantamount to an action directly against the public
entity of which the official is an agent,” the real “party in interest” is the City of Nashville,
Arkansas. 3 See Morton v. City of Little Rock, 728 F. Supp. 543, 545 (E.D. Ark. 1989), aff’d, 934
F.2d 180 (8th Cir. 1991); Kentucky v. Graham, 473 U.S. 159, 165-166 (1985) (stating that
official capacity suits are to be treated as suits against the entity of which the official is an agent
and “not a suit against the official personally, for the real party in interest is the entity” (emphasis
in original)).
B. Municipal Liability of Defendant City of Nashville Under 42 U.S.C. § 1983
The Court now turns to whether Defendant City of Nashville is subject to § 1983 liability
in the present case. In Monell v. Department of Social Services, the Supreme Court established
that a municipality is subject to liability under 42 U.S.C. § 1983 only when the violation of a
plaintiff’s constitutional right can be attributed to the enforcement or application of “a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s
officers.” 436 U.S. 658, 690 (1978). “Moreover, although the touchstone of the § 1983 action
against a government body is an allegation that official policy is responsible for a deprivation of
rights protected by the Constitution, local governments, like every other § 1983 ‘person,’ by the
very terms of the statute, may be sued for constitutional deprivations visited pursuant to
governmental ‘custom’ even though such a custom has not received formal approval through the
body’s official decision-making channels.” Id. The Supreme Court explained that “[a]lthough
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The Court will not address Defendants’ arguments regarding qualified immunity, as qualified immunity is not
applicable unless a defendant is sued in a personal capacity. Johnson, 172 F.3d at 535. Likewise, the Court will not
address Defendants’ arguments regarding lack of a causal link between the alleged violation and various defendants
in light of the conclusion that the present suit is actually against the City of Nashville and not any named Defendant
in an individual capacity.

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not authorized by written law, such practices of [officials] could well be so permanent and well
settled as to constitute a ‘custom or usage’ with the force of law.” Id. at 691 (quoting Adickes v.
S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)). Further, the Court has made clear that
municipal liability may also result when a plaintiff’s constitutional rights have been violated as
the result of a decision made by a person with “final policymaking authority” for the
municipality. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123-124 (1988). In Praprotnik,
the Supreme Court explained the analysis to be used in determining whether a certain official has
“final policymaking authority”:
We begin by reiterating that the identification of policymaking officials is a
question of state law. “Authority to make municipal policy may be granted
directly by a legislative enactment or may be delegated by an official who
possesses such authority, and of course, whether an official had final
policymaking authority is a question of state law.” Thus the identification of
policymaking officials is not a question of federal law, and it is not a question of
fact in the usual sense. The States have extremely wide latitude in determining the
form that local government takes, and local preferences have led to a profusion of
distinct forms. Among the many kinds of municipal corporations, political
subdivisions, and special districts of all sorts, one may expect to find a rich
variety of ways in which the power of government is distributed among a host of
different officials and official bodies. Without attempting to canvass the
numberless factual scenarios that may come to light in litigation, we can be
confident that state law (which may include valid local ordinances and
regulations) will always direct a court to some official or body that has the
responsibility for making law or setting policy in any given area of a local
government’s business.
Id. at 124-125 (internal citations omitted).
Thus, the Court makes clear that the analysis of whether an individual has “final
policymaking authority” is dependent on state law and, as shown by the Praprotnik Court,
complicated. In sum, in order to establish municipal liability and prevail, Plaintiffs must show
that (1) their constitutional or federally protected rights have been violated due to (2) a municipal
ordinance, custom, or decision made by a municipal official with “final policymaking authority.”
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In the present case, Defendants argue that when Jerry Harwell made the decision to raze
Plaintiffs’ building he was acting pursuant to the Fire Code adopted by the State of Arkansas.
ECF No. 16, pp. 4-5. Defendants likewise state that “[t]he City of Nashville adheres to and
follows the Fire Code,” but do not make clear whether the City of Nashville has adopted that
code as a city ordinance or regulation or is simply required to adhere to the Fire Code under state
law. ECF No. 16, p. 5. Finally, Defendants conclude that “[t]his is a single incident and there is
no policy of the City other than the overriding concern for public safety.” ECF No. 16, p. 8.
Thus, it appears that Defendants are arguing that: (1) there is no policy, ordinance, or custom of
the City of Nashville which warrants municipal liability; (2) Jerry Harwell is not a person with
“final policymaking authority”; and (3) Harwell acted pursuant to a state law and therefore the
City of Nashville is not the proper defendant. 4
In the brief in support of their response (ECF No. 19), Plaintiffs assert that Jerry Harwell
made his decision to raze Plaintiffs’ building pursuant to authority given to him by the Fire Code
as adopted by the State of Arkansas. ECF No. 19, pp. 10-11, 15. Plaintiffs argue that Jerry
Harwell is, under the Fire Code, the official with “final policymaking authority,” and that,
therefore, his decision to demolish Plaintiffs’ building constitutes “the de facto official policy of
the City of Nashville.” ECF No. 19, p. 15. Plaintiffs also make a “void for vagueness” argument
in regard to the Fire Code, as it is allegedly silent on certain key issues. ECF No. 19, p. 11.
Thus, Plaintiffs base their right to relief on the propositions that: (1) the Fire Code constitutes an
unconstitutional official policy of the City of Nashville; and (2) Jerry Harwell has “final

4

Defendants do not make this third argument explicitly, but in making it clear that Harwell was acting pursuant to
the Fire Code, as adopted and promulgated by the State of Arkansas, Defendants, purposefully or otherwise,
implicitly argue that the State of Arkansas would be the appropriate defendant. However, such suit would be limited
by well-established rules governing claims against states under 42 U.S.C. § 1983. See Will v. Michigan Dept. of
State Police, 491 U.S. 58, 71 (1989) (In which the Court held “that neither a State nor its officials acting in their
official capacities are ‘persons’ under § 1983”).

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policymaking authority” and, therefore, his decision warrants a finding of municipal liability
under 42 U.S.C. § 1983.
As to the first proposition, Plaintiffs have failed to allege any facts establishing that the
Fire Code has been adopted or otherwise promulgated by the City of Nashville. 5 Both parties
agree that the Fire Code was adopted by the State of Arkansas, and it is unclear from the
documents filed and provisions quoted whether municipalities are required to follow the Fire
Code or may, alternatively, establish their own code. Further, it may be that the Fire Code
establishes minimum standards that all municipalities must adhere to, in which case it could be
that Jerry Harwell was acting pursuant to state law and not local ordinance or custom. 6
Therefore, because neither party has fully and adequately briefed or argued this issue, the Court
cannot determine if Jerry Harwell acted pursuant to an official policy or custom of the City of
Nashville. Thus, as to this issue, there is a genuine issue of material fact and summary judgment
is not appropriate.
As to the issue of whether Jerry Harwell has “final policymaking authority,” the Court is
unable to grant summary judgment at this time because the parties have not provided enough
information. As noted above, “identification of policymaking officials is a question of state law.”
Praprotnik, 485 U.S. at 124-126. Neither party has cited any state statute, constitutional
provision, regulation, or other authority to show that Jerry Harwell does or does not have “final
5

The Complaint (ECF No. 1) is unclear in regard to whether Plaintiffs believe Jerry Harwell was acting under state
or municipal authority. For example, the Complaint states: “All Defendants were, at the time of the occurrences
described herein, acting under color of authority of Arkansas Law.” ECF No. 1, ¶ 9. However, the Complaint later
says: “The conditions complained of herein invoke customs, policies or procedures of the City Government of
Nashville, Arkansas[.]” ECF No. 1, ¶ 12. Although these statements are not necessarily at odds, the Court is unsure
of Plaintiffs’ position.
6
It is important to note that it is unsettled whether and when a municipality may incur liability under 42 U.S.C. §
1983 for the enforcement of or adherence to state law. The Eighth Circuit has not addressed this issue directly, but
has noted the “extensive debate in the circuits.” Slaven v. Engstrom, 710 F.3d 772, 781 n.4 (8th Cir. 2013) (citing
Vives v. City of New York, 524 F.3d 346, 351-53 (2d Cir. 2008) (in which the court examined the various positions
taken by different circuits)).

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policymaking authority.” Further, the issue is complicated by the fact that both sides agree that
Jerry Harwell acted pursuant to the Fire Code as adopted by the State of Arkansas. This brings
up the possibility that, when acting pursuant to the Fire Code, Jerry Harwell may be a state
policymaker, but not a municipal policymaker. See McMillian v. Monroe Cnty., 520 U.S. 781
(1997) (in which the Court had to decide whether a county sheriff was a policymaker for the
state or the county when acting in his law enforcement capacity). Thus, the Court must determine
whether Jerry Harwell represents the State of Arkansas or the City of Nashville when acting
under authority granted by the Fire Code. At this point, neither party has examined or argued this
issue and, therefore, summary judgment is not appropriate at this time.
Taking the reasoning above into account, the Court finds that summary judgment should
not be granted because the record is not sufficiently developed as to these issues.
C. Adequacy of State Remedies
In their final argument, Defendants take the position that summary judgment is
appropriate because “there are adequate state remedies” Plaintiffs can pursue for the alleged
procedural due process and takings violations. 7 ECF No. 16, p. 18.
In general, to state a claim under 42 U.S.C. § 1983, a litigant asserting a deprivation of
procedural due process must exhaust state remedies. Wax’n Works v. City of St. Paul, 213 F.3d
1016, 1019 (8th Cir. 2000). However, there is an exception to the general rule. Where an
“established state procedure”—rather than a “random and unauthorized act by a state
employee”—is responsible for the destruction of one’s property, a post-deprivation hearing may
be constitutionally inadequate, unless: (1) the state has a necessity for quick action; or (2)

7

The Court will not discuss Plaintiffs’ substantive due process or Fourth Amendment claims because Defendants
have not addressed those issues.

10

providing pre-deprivation process is impractical. Logan v. Zimmerman Brush Co., 455 U.S. 422,
435-36 (1982); see also Keating v. Neb. Pub. Power Dist., 562 F.3d 923, 929 (8th Cir. 2009)
(recognizing that it is not necessary for a litigant to have exhausted available post-deprivation
remedies when the litigant contends that he was entitled to pre-deprivation process);
Westborough Mall, Inc. v. City of Cape Girardeau, 794 F.2d 330, 337 (8th Cir. 1986)
(concluding that “[t]he availability of post-deprivation remedies is not a defense to the denial of
procedural due process where pre-deprivation process is practicable” and district court erred in
instructing jury otherwise). “In situations where the State feasibly can provide a pre-deprivation
hearing before taking property, it generally must do so regardless of the adequacy of a postdeprivation tort remedy to compensate for the taking.” Zinermon v. Burch, 494 U.S. 113, 132
(1990).
In the case at bar, Defendants and Plaintiffs agree that Jerry Harwell acted pursuant to the
Fire Code adopted by the State of Arkansas. Thus, it appears both parties believe that Mr.
Harwell was acting under authority of an “established state procedure” when he ordered that
Plaintiffs’ building be razed. Both parties have argued their position relative to the emergency
conditions which gave rise to Mr. Harwell’s decision and the impracticality of providing predeprivation process. However, there is a basic disagreement, supported by evidence on both
sides, over whether there were exigent circumstances sufficient to render pre-deprivation process
impractical. Thus, it is evident that a material issue of fact remains as to this issue and summary
judgment should be denied. 8

8

Defendants also direct the Court to Collier v. City of Springdale in support of their argument that Plaintiffs have
adequate state remedies. 733 F.2d 1311 (8th Cir. 1984). However, Collier is distinguishable from the present case.
In Collier, the defendants conceded that there was a “lawful taking” and that the plaintiff was owed just
compensation but argued that state eminent domain laws provided adequate compensation and, therefore, the
plaintiff was not entitled to relief pursuant to 42 U.S.C. § 1983. The court examined whether an adequate state
remedy existed in regard to the exercise of eminent domain and concluded that Arkansas law provides a means of

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IV. CONCLUSION
For the reasons stated above, the Court finds that Defendants have failed to show they are
entitled to summary judgment. Thus, Defendants’ Motion for Summary Judgment (ECF No. 15)
is DENIED.
IT IS SO ORDERED, on this 23rd day of November, 2016.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

just compensation when an entity exercises its eminent domain power. Defendants do not argue Mr. Harwell acted
under eminent domain power, but instead under authority of the Fire Code and that Plaintiffs can be adequately
compensated by state tort remedies. Defendants claim Collier supports their assertion that state tort remedies are
sufficient; however, the Collier court made a conscious decision not to take up the issue of adequacy of state tort
remedies. See Collier at 1317.

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