Scott v. Garrard County Fiscal Court et al
Filing
56
MEMORANDUM OPINION & ORDER: (1) pltf's due process & taking claims, brought under the Fifth & Fourteenth Amendments, are DISMISSED WITHOUT PREJUDICE; (2) pltf shall Show Cause by 2/3/2012 why her claim for the unreasonable seizure of real property & her equal protection claim should not be dismissed without prejudice. Signed by Judge Joseph M. Hood on 01/20/2012.(RJD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DONNA SCOTT,
Plaintiff,
v.
GARRARD COUNTY FISCAL COURT,
et al.,
Defendants.
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)Civil Action No. 5:08-CV-273-JMH
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) MEMORANDUM OPINION AND ORDER
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On April 26, 2011, Defendants moved to dismiss the abovereferenced action based on lack of subject matter jurisdiction,
pursuant to Fed. R. Civ. P. 12(b)(1) and (h)(3).
[DE 46].
On May
6, 2011, this Court issued a Memorandum Opinion and Order, [DE 52],
in which it rejected Defendants’ argument regarding subject matter
jurisdiction but opined that Plaintiff’s takings and due process
claims under 42 U.S.C. § 1983 likely are not cognizable in this
Court due to lack of ripeness.
Because Plaintiff had not availed
herself of post-deprivation remedies available to her under state
law, the Court required her to show cause why the matter should not
be dismissed without prejudice.
Plaintiff has filed a Response to
the Court’s Show Cause Order, [DE 53], and Defendants have filed a
Reply to Plaintiff’s Response.
[DE 55].
Accordingly, this matter
is ripe for decision.
In her Complaint, [DE 1], Plaintiff avers, in addition to
various state law claims, that Defendants have violated 42 U.S.C.
§ 1983 by violating her rights under the Fourth, Fifth, and
Fourteenth Amendments to the U.S. Constitution.
Specifically, she
avers that because Defendants, acting under color of state law,
“exercised governmental authority over Plaintiff’s private property
at the behest and complaint of private individuals who wanted to
use the land for their private purposes . . . this amounts to a
taking for a private, as opposed to public, purpose” in violation
of the Fifth and Fourteenth Amendments.
She goes on to aver,
however, that “Defendants’ conduct with respect to Plaintiff’s
private property is a physical and a regulatory taking without just
compensation in violation of the United States Constitution,”
suggesting that she bases her takings claim on a public use theory,
as well.
See Peters v. Fair, 427 F.3d 1035, 1037 (6th Cir.
2005)(“The Fifth Amendment’s Takings Clause prohibits appropriation
of private property for public use only where just compensation is
not paid.”). She also claims that Defendants’ actions deprived her
of the due process and equal protection guaranteed to her by the
Fifth and Fourteenth Amendments.
Additionally, she avers that
Defendants’ interference with her property rights constitutes an
unreasonable seizure forbidden by the Fourth Amendment.
In Plaintiff’s Response to the Court’s Show Cause Order, [DE
53], she asserts two main arguments.
First, she argues that
although she did not seek compensation in state court, her claim is
2
nonetheless ripe because Defendants’ conduct amounts to a private
taking.
Second, she argues that even if Defendants’ use of her
property is considered to be a taking for public use, she is not
required to seek compensation through state law remedies because
Kentucky provides no reasonable, certain and adequate provision by
which she can obtain just compensation. For the following reasons,
the Court rejects each of these arguments.
Plaintiff correctly notes that one whose property has been
taken by the government for strictly private use does not have to
settle for just compensation – these takings are unconstitutional
regardless of whether compensation is paid.
Cnty., Tenn.,
Montgomery v. Carter
226 F.3d 758, 766 (6th Cir. 2000).
Since state
procedures “do not supply the appropriate remedy,” a private use
claim is ripe for adjudication in federal court even though the
plaintiff has not sought relief in state court.
Id.
Plaintiff’s
private use claim is therefore ripe. The question that remains is,
however, whether Plaintiff’s averments of a private taking can
survive
a
12(b)(6)
challenge.
While
the
Court
agrees
that
Plaintiff’s private use claim is ripe and that she is able to seek
relief from Defendants without resorting to state remedies, the
Court is not persuaded that she has set forth averments upon which
the
Court
occurred.
that
the
could
conclude
that
a
taking
for
private
use
has
In a private takings case, the plaintiff has to show
“taking
had
no
rational
3
connection
to
a
minimally
plausible conception of the public interest.”
Id. at 768.
Very
few takings fail to meet the standard required to show that
property has been taken for public use as opposed to private use.
As explained by the Montgomery Court:
Examples of a taking for a private use tend to be
“esoteric,” Gamble v. Eau Claire County, 5 F.3d 285, 287
(7th Cir. 1993), because all that is required for the
taking to be considered for public use is a rational
relationship to some “conceivable public purpose.” See
Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 241, 104
S.Ct. 2321, 81 L.Ed.2d 186 (1984). Very few takings will
fail to satisfy that standard. As a result, the examples
suggested in the reported cases tend to be highly
implausible hypotheticals. See, e.g., Gamble, 5 F.3d at
286 (using the example of a fictional state law
authorizing the governor to take a person’s home and give
it to his brother-in-law).
Id. at 765-66.
The fact that a taking creates incidental benefits
for individual private parties “does not condemn that taking as
having only a private purpose.” Hawaii Hous. Auth. v. Midkiff, 467
U.S. 229, 243-44 (1984).
“The ‘public use’ requirement is, thus,
coterminous with the scope of a sovereign’s police powers.” Id. at
240.
The Kentucky legislature has clearly set forth that it is part
of the sovereign’s power to open, close, or maintain a road.
example, KRS 178.115 provides that:
[W]henever the fiscal court of any county deems it to be
in the best interest of the county to open, establish or
alter the location of any public road, street, alley,
ditch, culvert, bridge or similar public way or structure
in the county, the fiscal court shall adopt a resolution
setting forth the necessity for the public road or
structure , and thereupon the public road or structure
shall be deemed opened, established or altered, as the
4
For
case may be, on behalf of the county. A certified copy
of the resolution shall be posted at the courthouse door
of the county within five (5) days after its adoption and
a certified copy of the resolution shall be posted by the
county road engineer of the county along or at the
proposed road or structure within five (5) days after its
adoption.
(2) In all cases where public roads or structures have
been established, any person or persons aggrieved thereby
may prosecute an appeal from a resolution of the fiscal
court by filing a petition in equity in the Circuit Court
of the county where the road or structure is located
setting forth his grievance, to which petition shall be
attached an attested or certified copy of the resolution.
The petition shall be filed within thirty-five (35) days
from the date the resolution was entered.
An appeal
shall be heard and decided by the court without
intervention of a jury. Any party so appealing shall
execute and file a bond for costs at the time such appeal
is taken. An appeal to the Court of Appeals may be taken
in accordance with the Rules of Civil Procedure.
Interestingly, KRS 178.100 provides that:
[f]rom a decision of the fiscal court ordering a new road
to be opened, or ordering an alteration or discontinuance
of an existing road, or allowing gates to be erected
across a road or abolishing existing gates, or a decision
refusing any such order, the party aggrieved may bring an
action in the Circuit Court of the county where the road
is located to contest the decision of the fiscal court.
The
Court
Plaintiff.
considers
the
use
of
Lanham
Lane
averred
by
In her Complaint, Plaintiff describes how individuals
“frequently” use Lanham Lane, apparently both before and after the
removal of the gate that she had erected to block access to it.
She also avers that after she erected the gate, she received
threats from her neighbors and “other members of the community.”
Further, from both Plaintiff’s Complaint and the evidence that has
already passed in front of this Court with respect to the parties’
5
earlier motions, the Court is aware that a number of Plaintiff’s
neighbors, themselves members of the public, have used Lanham Lane
to access their property and that, at present, it is used by
members of the public other than Plaintiff’s immediate neighbors.
Plaintiff has made reference to individuals who “go four-wheeling
and partying” on it, much to her consternation.
In other words,
even if the Court assumes that Lanham Lane was Plaintiff’s private
property prior to the time that her gate was torn down by county
officials, Defendants used that opportunity to provide the public
with access to the roadway known as Lanham Lane.
Whether the road
was public for the entire duration of its existence or whether its
public nature has been established (or reestablished) since the
removal of Plaintiff’s gate is a question to be resolved at another
time.
Based
on
Plaintiff’s
averments,
she
cannot
show
that
Defendants’ alleged taking has “no conceivable public purpose.”
See Midkiff, 467 U.S. at 241.
As the Court already noted in this
case, in the Commonwealth, roads are maintained by federal, state,
county, municipal, and private means, depending on their status.
No one seriously disputes that the establishment and maintenance of
roadways for the public is a functional lawfully performed by
Garrard County. The question that follows is whether Plaintiff has
made any averment that a true private taking has occurred, i.e.,
that the use of Lanham Lane is limited to one or a small subset of
6
Garrard County residents who live along it or that title in the
real property which comprises Lanham Lane has been transferred to
Plaintiff’s neighbors by Defendants.
questions in the negative.
those
presented
in
The Court answers these
While Plaintiff compares her claims to
Montgomery
v.
Carter
County,
Commonwealth
Department of Transportation v. Knieriem, 707 S.W.2d 340 (Ky.
1986), and Sarver v. Allen County, 582 S.W.2d 40, 21 (Ky. 1979),
those cases are easily distinguished from the one currently before
the Court.
Montgomery
involved a private driveway that was
included on an “official county road list” and inured benefits to
a single neighbor of the plaintiff.
In Knieriem, the state sought
to condemn the plaintiff’s property to create a private easement
for the use of an individual business organization.
Finally, in
contrast to Plaintiff’s Complaint, which avers that Defendants
opened up Plaintiff’s property to “widespread public use,” Sarver
involved a dispute over the use of a road by two neighboring
landowners.
As
the
Montgomery
Court
pointed
out,
very
few
takings
constitute takings for private use. 226 F.3d at 765-766. Further,
real-life examples are rare, and Plaintiff’s averments simply
cannot support a claim for private taking.
Plaintiff’s averments
concerning the community’s use of Lanham Lane are incompatible with
a finding of no rational relationship to a conceivable public
purpose.
Id. at 765.
Rather, the opening of the lane, an act
7
within Defendants’ police power, bears a clear relationship to the
public purpose of providing access to Lanham Lane to the community
at large.
Accordingly, Plaintiff’s private use claim fails as a
matter of law.
To the extent that Plaintiff’s Complaint asks this Court to
consider whether she is due compensation for a taking of her
private property for public use, she largely concedes that it is
not ripe.
However, she avers that her rights under the Fifth and
Fourteenth Amendments were violated because “Defendants’ conduct
with respect to Plaintiff’s private property is a physical and
regulatory taking without just compensation,” “[p]re-deprivation
procedures
afforded
Plaintiff
were
not
in
keeping
with
constitutional principles of due process, and there is no adequate
post-deprivation remedy afforded Plaintiff.” See DE 53 at 4. More
to the point, while she does not aver that she has sought relief in
state proceedings, she continues to argue that post-deprivation
remedies would not be enough, relying on case law requiring predeprivation process in certain situations. In situations where the
State feasibly can provide a pre-deprivation hearing before taking
the property, it generally must do so regardless of the adequacy of
a post-deprivation tort remedy to compensate for the taking.
Zinermon v. Burch, 494 U.S. 113, 132 (1990).
Procedural due
process generally requires that an individual be given adequate
notice
and
an
opportunity
to
be
8
heard
prior
to
a
property
deprivation.
See Cash v. Hamilton Cnty. Dep’t of Adult Prob., 388
F.3d 539, 544 (6th Cir. 2004).
In her Complaint, Plaintiff avers
that, prior to the removal of her gate, the issue was taken up
during an August 2007 meeting of the Garrard County Fiscal Court.
She avers that she and a host of other individuals were allowed to
speak during the meeting and that, despite the Garrard County
attorney’s characterization of Lanham Lane as a private road, the
Fiscal Court voted to remove the gate.
While Plaintiff contends
that these pre-deprivation procedures were insufficient, the Court
will not pass judgment on their adequacy when the challenge to them
is
brought
in
conjunction
with
an
unripe
takings
claim.
Plaintiff’s due process claims involve the same facts as and are
ancillary to her takings claim.
They are, therefore, governed by
the rule applicable to takings claims – that plaintiffs generally
are required to exhaust state remedies before bringing such claims
in federal court.
See Braun v. Ann Arbor Charter Twp., 519 F.3d
564, 571-72 (6th Cir. 2008); Peters v. Fair, 427 F.3d 1035, 1037
(6th Cir. 2005)(citing Warren v. City of Athens, Ohio, 411 F.3d
697, 708 (6th Cir. 2005)(substantive and procedural due process
claims that are ancillary to takings claims are also subject to
ripeness requirement)).
Plaintiff also argues that her claim is ripe because the state
does not provide adequate procedures to compensate her for the
deprivation of her property. The Fifth Amendment does not prohibit
9
a government from taking, for a public purpose, the private
property of individuals.
Rather, it prohibits the taking of
private property without just compensation. Williamson Cnty. Reg’l
Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194
(1985).
And just compensation does not have to be paid in advance
or even contemporaneously with the government’s taking of property.
Id.
The only requirement is that, at the time of the taking, “a
reasonable,
certain
compensation” exist.
Plaintiff
argues
reasonable,
that
certain,
and
adequate
provision
for
obtaining
Id. (internal quotations omitted).
her
and
takings
claim
adequate
is
ripe
provisions
for
Here,
because
no
obtaining
compensation exist under Kentucky law.
Reverse condemnation is a cause of action recognized under
Kentucky law, by which a landowner can recover the fair market
value of property that the government has taken for public use.
See Holloway Constr. Co. v. Smith, 683 S.W.2d 248, 249-50 (Ky.
1984); Commonwealth of Ky., Natural Res. & Env’t Prot. Cabinet v.
Stearns Coal & Lumbar Co., 678 S.W.2d 378, 381 (Ky. 1984).
Plaintiff argues that this process is inappropriate because the
parties disagree as to the nature of the use of the lane (i.e.,
public versus private) and as to the true ownership of the lane.
The existence of these issues, however, does not render reverse
condemnation an inadequate means of securing compensation if there
has been a taking.
Remaining questions of fact, such as these, do
10
no obviate the ripeness requirement of takings claims and there is
no reason that these issues cannot be addressed adequately in a
state court action.
Plaintiff goes on to argue that reverse
condemnation is inappropriate because she does not wish to transfer
her property rights in Lanham Lane to Garrard County and because
Garrard County has expressed no interest in acquiring rights to the
lane.
It is Garrard County’s position that it already owns the
lane, so it is not surprising that it has not expressed an interest
in acquiring property rights.
If Plaintiff Scott actually is the
owner of Lanham Lane, it is of no consequence that she does not
wish to convey her rights to it – Garrard County still has the
right to take it for public use, so long as it justly compensates
Scott for the taking.
Finally, Plaintiff argues that reverse condemnation is not
adequate because Defendants’ alleged interference with Plaintiff’s
property
rights
may
condemnation claim.
not
give
rise
to
a
cognizable
reverse
Plaintiff relies on Thompson v. Fayette
County, 302 S.W.2d 550, 551 (Ky. 1957), which held that a taking,
for purposes of reverse condemnation, had not occurred where the
county merely had adopted a formal resolution establishing a public
road on Plaintiff’s private property.
In Stearns Coal & Lumbar
Company, the Kentucky Supreme Court noted that a legal taking, at
least for the purposes of inverse condemnation actions, “involve[s]
acts
which
completely
frustrate
11
the
landowner’s
rights
and
deprive[s] him of the use of his property.”
678 S.W.2d at 382.
Plaintiff argues that because Defendants merely removed the gate
from her property and have otherwise made no formal claim to the
property, a Kentucky court is unlikely to deem Defendants’ actions
a taking and therefore reverse condemnation will be unavailable to
her.
While the Court appreciates Plaintiff’s argument, the facts
presented
do
not
amount
to
a
clear
foreclosure
condemnation as a remedy in state court.
of
reverse
When state law remedies
are “potentially available” and a plaintiff has not pursued them,
a federal takings claim is not ripe.
Brisbane v. Milano, No. 10-
3470-cv, 2011 WL 4952985, at *2 (2d Cir. Oct. 19, 2011).
the
requirement
of
first
pursuing
relief
in
state
To avoid
court,
a
plaintiff must show that “the state law ‘expressly precludes use of
the
inverse
condemnation
remedy’
in
the
plaintiff’s
case.”
Downing/Salt Pond Partners, L.P. v. Rhode Island & Providence
Plantations, 643 F.3d 16, 26 (1st Cir. 2011)(quoting Deniz v. Mun.
of Guaynabo, 285 F.3d 142, 147 (1st Cir. 2002)).
Other circuits
agree, as stated in Downing/Salt Pond Partners:
[T]he burden is on the plaintiff to prove the absolute
unavailability or inadequacy of potential state remedies
in order to be excused from the state litigation
requirement. See, e.g. Island Park, LLC v. CSX Transp.,
559 F.3d 96, 109 (2d Cir. 2009)(plaintiff must pursue
even unsure and undeveloped possibilities for relief);
Rockstead v. City of Crystal Lake, 486 F.3d 963, 965-66
(7th Cir. 2007)(plaintiff must challenge out-of-date
state common law precedent denying validity of particular
type of inverse condemnation claim); Urban Developers LLC
v. City of Jackson, Miss., 468 F.3d 281, 295 (5th Cir.
2006); Austin v. City & Cnty. of Honolulu, 840 F.2d 678,
12
680 (9th Cir. 1988).
643 F.3d at 26.
Further, reverse condemnation is not the only possible remedy
available to Plaintiff in state court.
For example, Plaintiff
could institute an action to quiet title to Lanham Lane and pursue
state law remedies if she is determined to be the owner of the
property.
See KRS 411.120.
Ultimately, it is up to Plaintiff to
decide whether to seek relief in state court and, if so, what type
of relief to pursue.
Kentucky
does
not
Plaintiff has failed to show, however, that
offer
a
reasonable,
certain,
and
adequate
provision for obtaining compensation for the taking of Plaintiff’s
land if, indeed, a taking did occur.
Plaintiff has also raised an equal protection claim under 42
U.S.C. § 1983. Under the Equal Protection Clause of the Fourteenth
Amendment, a state is forbidden from “deny[ing] to any person
within its jurisdiction the equal protection of the laws.”
Const. amend XIV, § 1.
U.S.
Further, the states are forbidden from
making distinctions that “burden a fundamental right, target a
suspect class, or intentionally treat one differently from others
similarly situated without any rational basis for the difference.”
Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir.
2005).
Where, as here, Plaintiff alleges a violation of the third
type, the claim proceeds on a “class of one” theory.
Taylor
Acquisitions, L.L.C. v. City of Taylor, 313 F. App’x 826, 836 (6th
13
Cir. 2009).
To prevail on a class of one theory, Plaintiff must
prove that the government treated individuals, similarly situated
in all material respects, differently than Plaintiff.
Braun, 519 F.3d at 575).
Id. (citing
Additionally, Plaintiff must show that
the government lacked a rational basis for its actions. TriHealth,
Inc. v. Bd. of Comm’rs,
430 F.3d 783, 791 (6th Cir. 2005).
The
standard for proving the lack of a rational basis is rigorous –
Plaintiff must show that “the varying treatment of different . . .
persons is so unrelated to the achievement of any combination of
legitimate purposes that [the court] can only conclude that the
[government’s] actions were irrational.” Warren v. City of Athens,
411 F.3d 697, 710 (6th Cir. 2005)(alterations in original).
Plaintiff has failed to aver any facts that suggest she could
prevail on her equal protection claim.
She does not attempt to
describe the individuals from whom she was treated differently or
Defendants’ lack of a rational basis for its actions.
A complaint
must state more than mere legal conclusions or a recitation of the
elements of the cause of action – it must contain “enough facts to
state a claim to relief that is plausible on its face.”
Corp.
v.
presented
Defendants
Twombly,
no
550
facts
treated
U.S.
beyond
her
544,
570
her
conclusory
differently
(2007).
than
Bell Atl.
Plaintiff
allegations
similarly
has
that
situated
individuals. Accordingly, unless the Court is persuaded otherwise,
it is of the opinion that Plaintiff’s equal protection claim should
14
be dismissed for failure to state a claim upon which relief can be
granted.
Finally, the Court considers Plaintiff’s claim that Defendants
violated her Fourth Amendment right to be free from unreasonable
seizures.
“[A] seizure of property occurs when ‘there is some
meaningful interference with an individual’s possessory interests
in that property.’”
Cochran v. Folger, 740 F. Supp. 2d 923, 931
(6th Cir. 2010)(quoting Thomas v. Cohen, 304 F.3d 563, 569 (6th
Cir. 2002)).
Plaintiff characterizes Defendants’ removal of her
gate and chain, as well as Defendants’ interference with Lanham
Lane itself, as unconstitutional seizures under 42 U.S.C. § 1983.
The Court finds it appropriate to consider the alleged seizure of
Lanham Lane apart from the alleged seizure of the gate and chain.
It
is
clear
that
the
Fourth
Amendment’s
protections
unreasonable seizures can extend to real property.
against
See United
States v. James Daniel Good Real Property, 510 U.S. 43, 52 (1993).
But while some courts have recognized Fourth Amendment claims as
being separate and independent of takings claims1, this Court is
not persuaded that this is the correct analysis in a situation such
1
The Court notes that the Fifth Circuit has taken this view.
See Severance v. Patterson, 566 F.3d 490, 501 (5th Cir.
2009)(finding that the Fourth Amendment applies to civil as well as
criminal seizures and plaintiff’s Fourth Amendment claim was not
subsumed by takings claim and was, therefore, separately
cognizable). See also Presley v. City of Charlottesville, 464 F.3d
480, 487 (4th Cir. 2006)(Plaintiff’s claim under the Fifth
Amendment’s Takings Clause did not bar her from bringing separate
Fourth Amendment seizure claim).
15
as Plaintiff’s.
To allow Plaintiff to pursue a Fourth Amendment
claim for the seizure of Lanham Lane would eviscerate the ripeness
requirement for takings claims under the Fifth Amendment.
The
Court is not convinced that Plaintiff can escape those requirements
by asserting a claim that is nearly identical to her takings claim
by simply labeling it a Fourth Amendment claim.
Further, to
establish a claim under the Fourth Amendment, Plaintiff must
establish that the seizure of her property was unreasonable.
Soldal v. Cook Cnty., Ill., 506 U.S. 56, 62 (1992).
See
Because it is
within Defendants’ police power to open and establish roads, the
Court is not persuaded that Plaintiff has averred facts upon which
Defendants’ actions could be deemed unreasonable.
Plaintiff’s claims for the seizure of her gate and lock
warrant a different analysis.
There is no assertion that these
items were seized for anyone’s use – public or private.
In fact,
Plaintiff’s Complaint suggests that they were essentially destroyed
due to Defendants’ action.
Plaintiff’s averments regarding the
seizure of these items falls more squarely under a traditional
Fourth Amendment analysis, for which no resort to state remedies is
required.
Accordingly, the Court is of the opinion the issue of
the seizure of the gate and chain is properly before it.
Therefore, IT IS ORDERED:
1)
Plaintiff’s due process and takings claims, brought under
the Fifth and Fourteenth Amendments, are hereby DISMISSED WITHOUT
16
PREJUDICE; and
2)
Plaintiff shall SHOW CAUSE, on or before February 3, 2012
why her claim for the unreasonable seizure of real property and her
equal protection claim should not be dismissed without prejudice.
This the 20th day of January, 2012.
17
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