Shook v. County of Towns, Georgia et al

Filing 18

ORDER GRANTING without prejudice 9 Motion to Dismiss except as to Plaintiffs substantive due process claims, which are GRANTED with prejudice. All claims against Defendant Robert Wilson are deemed ABANDONED. Therefore, Defendant Wilsons Motion to Dismiss 10 is GRANTED. The Clerk is directed to close this case. Signed by Judge Richard W. Story on 11/2/2011. (vld)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
KEN SHOOK,
Plaintiff,
v.
TOWNS COUNTY, GEORGIA,
et. al.,
Defendants.

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CIVIL ACTION NO.
2:11-CV-16-RWS

ORDER
This case come before the Court on Defendants Towns County
(“County”), Bill Kendall, and James Goodwin’s Motion to Dismiss [9] and
Defendant Robert Wilson’s Motion to Dismiss [10]. After a review of the
record, the Court enters the following Order.
Background1
This case arises out of Plaintiff’s purchase and development of a piece of
property (the “Property”), which consisted of three tracts on Bugscuffle Road,
Hiawassee, Towns County, Georgia. Comp, Dkt. No. [1] at 3. Tract 1 contained
an existing house, and Plaintiff obtained building permits for the other two
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As this matter is before the Court on a motion to dismiss, the Court takes the
factual allegations in the Complaint [1] as true. Cooper v. Pate , 378 U.S. 546 (1964).

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tracts on or about May, 5, 2006. Id. at 4. Plaintiff commenced construction on
Tract 3, the tract at issue, on October 10, 2006. Id.
Defendant James Goodwin issued a Stop Work Order on July 6, 2006,
which was lifted on August 19, 2008 by a ruling of the Superior Court of
Towns County declaring Stop Work Orders illegal. Id. Defendant Goodwin
then informed Plaintiff in writing that the County would honor his building
permits issued on May 5, 2006 provided Plaintiff complete the construction
“within a reasonable time.” Id. However, in August 2008, Defendant Robert
Wilson denied Plaintiff a septic-tank permit to replace the system currently in
place and, upon a second request by Plaintiff for a septic-tank permit, denied
the permit again. Id. Also, on or about August 19, 2008, when Plaintiff had
sufficiently completed construction on Tract 3 to qualify for permanent power,
Defendant Goodwin refused to authorize any permanent electrical connection to
the property and has since continued to refuse authorization. Id. at 4-5.
Plaintiff alleges that Defendant Wilson acted wrongfully and
intentionally by denying the septic permit and that Defendant Goodwin acted
unlawfully, wrongfully, and intentionally in refusing authorization of the
electrical connection. Id. at 5. Plaintiff also alleges that Defendants’ actions
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have effectively deprived him of his “property or any use thereof” without due
process of law and have “constructively taken” his property. Plaintiff appealed
to the County building department, Defendant Commissioner Bill Kendall,
Defendant Goodwin, Defendant Wilson, and twice served his Notice of Claim
against the County, all to no success. Id. Plaintiff recognizes that he has not
sought relief in the state courts, but only because “no state procedures exist to
provide [him] with recourse to address the deprivation or property.” Id. He
alleges Defendants’ actions violate his due process rights under the Fourteenth
Amendment and his right to just compensation for a government taking under
the Fifth Amendment. Id. at 6-7.
Discussion
I. Preliminary Matters
In his Complaint, Plaintiff grounds his claims against Defendant Robert
Wilson on Wilson’s wrongful and intentional denial of a septic tank permit to
the Property. Cmpl., Dkt. No. [1] at 4. However, Plaintiff, in his Opposition
Brief, states that “[h]e is not suggesting that any of the actions of the
Defendants is a refusal of permits, zoning or any state created right. . . . Plaintiff
is being totally denied any use of his property by the refusal of the Defendants
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to grant him access to permanent power.” Pl.’s Opp., Dkt. No. [14] at 6.
Therefore, Plaintiff has specifically abandoned any claim based on the septictank-permit denial. Moreover, Plaintiff makes no allegations that Defendant
Wilson, the Health Inspector of the Towns County Environmental Health
Department, participated in decisions to grant power in any way, or that he
specifically participated in the decision to not grant power to Plaintiff’s
Property. Therefore, all claims against Defendant Wilson are deemed
ABANDONED.
II. Legal Standard
When considering a motion to dismiss, a federal court is to accept as true
“all facts set forth in the plaintiff’s complaint.” Grossman v. Nationsbank, N.A.,
225 F.3d 1228, 1231 (11th Cir. 2000) (citation omitted). Further, the court must
draw all reasonable inferences in the light most favorable to the plaintiff. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal citations
omitted); Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir.
1999). However, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’” Ashcroft
v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550
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U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Id.
The United States Supreme Court has dispensed with the rule that a
complaint may only be dismissed under Rule 12(b)(6) when “‘it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.’” Twombly, 127 U.S. at 561 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). The Supreme Court has replaced that rule
with the “plausibility standard,” which requires that factual allegations “raise
the right to relief above the speculative level.” Id. at 556. The plausibility
standard “does not [however,] impose a probability requirement at the pleading
stage; it simply calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence [supporting the claim].” Id.
III. Due Process Claims
Plaintiff has alleged due process claims predicated on Defendants’ refusal
to authorize an electrical connection to Plaintiff’s property. Cmpl., Dkt. No. [1]
at 6; Pl.’s Opp., Dkt. No. [14] at 6. The Due Process Clause of the Fourteenth
Amendment states “nor shall any State deprive any person of life, liberty, or

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property, without process of law.” U.S. CONST. amend. XIV, § 1. The Eleventh
Circuit has noted that:
The Supreme Court’s interpretation of this clause explicates that
the amendment provides two different kinds of constitutional
protection: procedural due process and substantive due process.
Cf. Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983,
108 L. Ed. 2d 100 (1990). A violation of either of these kinds of
protection may form the basis for a suit under [42 U.S.C. §] 1983.
Id.
McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994). Plaintiff has alleged
two due process claims–procedural and substantive.
A. Procedural Due Process Claims
“To state a claim under §1983 for denial of procedural due process, an
individual must show ‘the state refuse[d] to provide a process sufficient to
remedy the procedural deprivation.’” Mason v. Clayton Cnty. Bd. of Ed., 334
Fed. App’x 191, 193 (11th Cir. 2009) (quoting Cotton v. Jackson, 216 F.3d
1328, 1330-31 (11th Cir. 2000)). “This rule . . . recognizes that the state must
have the opportunity to remedy the procedural failings of its subdivisions and
agencies in the appropriate fora-agencies, review boards, and state courts before
being subjected to a claim alleging a procedural due process violation.” Cotton,
216 F.3d at 1331 (internal quotation omitted).
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Here, Plaintiff has a sufficient state-law remedy that he has not yet
pursued which precludes his federal cause of action. He may petition the
Georgia courts for a writ of mandamus “to compel a due performance if there is
no other specific legal remedy for the legal rights.” O.C.G.A. § 9-6-20. Even
assuming Plaintiff did exhaust all local remedies, he has not yet filed for
mandamus to address the alleged access-to-power deprivation.
Further, while Plaintiff asserts he has no defined state remedy,2 he still
could have petitioned Georgia courts for a writ of mandamus. Indeed, that is the
only situation in which the writ is proper. Id. As such, Plaintiff’s procedural due
process claim must fail, and this Court lacks subject matter jurisdiction as
Plaintiff has not yet availed himself of the state-law system.
Therefore, Defendants’ Motion to Dismiss is GRANTED as to all
Plaintiff’s procedural due process claims.

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If Plaintiff does not have “any clear legal right” to have power authorized or
provided by the county, he has no due-process rights to be vindicated. East v. Clayton
Cnty., No. 10-15749, 2011 WL 3279197, at *8 (11th Cir. Aug. 1, 2011) (“If [Plaintiff]
did not have a legal right to [the remedy sought], as he suggests in his effort to bypass
the mandamus requirement, he had no due-process rights to [the remedy sought] in the
first place.”) Therefore, taking Plaintiff’s argument as true, his due process claim
would still fail.
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B. Substantive Due Process Claims
Defendants also move for summary judgment on Plaintiff’s §1983
substantive due-process claim. Plaintiff first alleges in his Complaint that
Defendant violated his substantive due-process rights by denying him a septic
tank permit and grant of power to his property. Cmpl. Dkt. No. [1] at 3-4.
However, as stated above, he now asserts that Defendants “totally denied
[Plaintiff] any use of his property” solely by refusing to grant him access to
permanent power. Id. This argument suggests Plaintiff is attempting to frame a
substantive due-process violation in terms of a taking. However, the Eleventh
Circuit has clarified there is no independent cause of action for such a claim.
Villas of Lake Jackson, Ltd. v. Leon Cnty., 121 F.3d 610, 612 (11th Cir. 1997)
(“There is no independent ‘substantive due process taking’ cause of action.”)
(emphasis added). Therefore, Plaintiff may only bring his takings claim under
the Fifth Amendment as applied to the states through the Fourteenth
Amendment, not independently under the due process clause. While it appears
Plaintiff is only grounding his claim in a taking, the Court will still address any
possible remaining substantive due-process arguments.

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"The substantive component of the Due Process Clause protects those
rights that are fundamental, that is, rights that are implicit in the concept of
ordered liberty," or, alternatively, "those rights created by the Constitution."
Behrens v. Regier, 422 F.3d 1255, 1264 (11th Cir. 2005) (internal quotations
omitted). The Supreme Court has determined that most of the rights enumerated
in the Bill of Rights are fundamental as well as certain unenumerated rights,
such as the right of privacy. McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir.
1994).
While the Supreme Court has deemed certain rights to be fundamental,
“‘the Court has always been reluctant to expand the concept of substantive due
process because guideposts for responsible decision making in this uncharted
area are scarce and open-ended.’” Id. (quoting Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992)). “[A]reas in which substantive rights are
created only by state law . . . are not subject to substantive due process
protection under the Due Process Clause because ‘substantive due process
rights are created only by the Constitution.’” Id. (quoting Regents of Univ. of
Mich. v. Ewing, 474 U.S. 214, 229 (1985) (Powell, J., concurring)).

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The Eleventh Circuit has held that the list of state-created rights includes
land-use rights like zoning, revocation of land disturbance permits, and issuance
of certificates of occupancy. See Lewis v. Brown, 409 F.3d 1271, 1273 (11th
Cir. 2005) (zoning decisions implicate state-created land-use rights); Greenbriar
Village, L.L.C., 345 F.3d at 1262 (the right to a land disturbance permit was
through a state-granted property right); Dekalb Stone, Inc. v. Dekalb Cnty., 106
F.3d 956, 960 (11th Cir. 1997) (citing Boatman v. Town of Oakland, 76 F.3d
341, 346 (11th Cir. 1996) (issuance of a certificate of occupancy is a statecreated land-use right)). Similarly, here, Plaintiff applied to the Official
Building Inspector of Towns County, James Goodwin, for a permanent
electrical-connection authorization. Cmpl., Dkt. No. [1] at 2, 3. The Court finds
no reason to distinguish Plaintiff’s claim from cases regarding issuance of
permits or certificates, and finds that any remaining claims would be based on
state-created land-use rights which are not protected by substantive due
process.3

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Plaintiff also does not qualify under any exception. Where an individual’s
state-created rights are infringed by a legislative act, the substantive component of the
Due Process Clause generally protects him from arbitrary and capricious action by the
government. Id. (citing McKinney, 20 F.3d at 1557 n.9). However, Plaintiff’s claims
are based on the acts of a county official and directed solely at Plaintiff’s property.
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Therefore, Defendants’ Motion to Dismiss is GRANTED as to all
Plaintiff’s substantive due process claims.
IV. Takings Claims
Plaintiff asserts a takings claim in violation of the Fifth Amendment,
alleging that Defendants “wrongfully rendered the [P]roperty useless due to
their refusal to allow electricity to be provided.” Pl.’s Opp., Dkt. No. [14] at 7.
A regulation "restricting the use of property may in some limited circumstances
amount to a taking." Rymer v. Douglas Cnty., 764 F.2d 796, 800 (11th Cir.
1985). However, a property owner must show either that state law provides no
process for obtaining just compensation, or that state law is inadequate due to
state court interpretation. Agripost, Inc. v. Miami-Dade County ex rel. Manager,
195 F.3d 1225, 1231 (11th Cir. 1999). If the plaintiff cannot show either of
these requirements, the case is not ripe and the court lacks subject matter
jurisdiction over the claim. Id.
In Georgia, state law provides a process for obtaining just compensation
for takings resulting from land-use decisions: claimants may bring an action for

Further, Plaintiff does not allege that any of Defendants’ actions were legislative acts.
Therefore, Plaintiff’s claim to protect a state-created right cannot proceed under the
exception to the state-created rights bar.
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inverse condemnation. James Emory, Inc. v. Twiggs Cnty., 883 F. Supp. 1546,
1556 (M.D. Ga. 1995); Benton v. Savannah Airport Comm'n , 525 S.E.2d 383,
386 (Ga. Ct. App. 1995). As discussed in Section III.B., a power-access denial
is a land-use decision. Therefore, Plaintiff must pursue an inverse condemnation
action in state court before the case is ripe for decision in this Court. As
Plaintiff has not pursued such a claim, this claim is not ripe, and Defendants’
Motion to Dismiss is GRANTED as to all Plaintiff’s takings claims.
Conclusion
Based on the foregoing, Defendants Towns County, Bill Kendall, and
James Goodwin’s Motion to Dismiss [9] is GRANTED without prejudice
except as to Plaintiff’s substantive due process claims, which are GRANTED
with prejudice. All claims against Defendant Robert Wilson are deemed
ABANDONED. Therefore, Defendant Wilson’s Motion to Dismiss [10] is
GRANTED. The Clerk is directed to close this case.
SO ORDERED, this 2nd

day of November, 2011.

________________________________
RICHARD W. STORY
United States District Judge

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