Stewart v. City of Franklin et al
MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr. on 11/27/2013. For the foregoing reasons, Defendants City of Franklin, Franklin Police Department, and Kenton Powell's Motion to Dismiss is GRANTED (DN 18 ). Also, Defendan t Barren River Area Development District's Motion to Dismiss (DN 19 ) and Defendant Kevin Allen's Motion to Dismiss (DN 20 ) are GRANTED. All of Plaintiff's claims, both federal and state, are DISMISSED WITHOUT PREJUDICE. cc: Counsel (CDR)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:13CV-70-JHM
MICHAEL V. STEWART
CITY OF FRANKLIN,
FRANKLIN POLICE DEPARTMENT,
BARREN RIVER AREA DEVELOPMENT DISTRICT,
KEVIN ALLEN, individually and
in his official capacity, AND
KENTON POWELL, individually and
in his official capacity
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants City of Franklin, Franklin Police
Department, and Kenton Powell’s Motion to Dismiss [DN 18]. Also, Defendant Barren River
Area Development District filed a motion to dismiss [DN 19] and Defendant Kevin Allen filed a
motion to dismiss [DN 20]. Fully briefed, these matters are ripe for decision.
This case arises out of the fire at Plaintiff’s residence on August 1, 2012 and the
subsequent demolition of the property on August 3, 2012. The fire started in a vacant building
adjacent to Plaintiff’s house. Plaintiff Michael Stewart had lived in the house, located at 207 S.
College Street, Franklin, Kentucky, since 1994.
Following the fire, the City of Franklin
condemned the property and razed the building.
Plaintiff alleges that the actions by Defendants City of Franklin, Franklin Police
Department, Barren River Area Development District (BRADD), Kevin Allen, and Kenton
Powell led to violations of his Fourth, Fifth, and Fourteenth Amendment rights. Additionally,
Plaintiff asserts claims under 42 U.S.C. § 1983 and 42 U.S.C. § 1985 as well as several state law
II. STANDARD OF REVIEW
A. Lack of Subject-Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) provides that a party may file a motion asserting
“lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). “Subject matter jurisdiction is
always a threshold determination,” American Telecom Co., L.L.C. v. Republic of Lebanon, 501
F.3d 534, 537 (6th Cir. 2007) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101,
118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)), and “may be raised at any stage in the proceedings,”
Schultz v. General R.V. Center, 512 F.3d 754, 756 (6th Cir. 2008). “A Rule 12(b)(1) motion can
either attack the claim of jurisdiction on its face, in which case all allegations of the plaintiff
must be considered as true, or it can attack the factual basis for jurisdiction, in which case the
trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction
exists.” DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). “A facial attack on the
subject-matter jurisdiction alleged in the complaint questions merely the sufficiency of the
pleading.” Gentek Bldg. Prods., Inc. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir.
2007). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.” Fed.R.Civ.P. 12(h)(3). Here, the Defendants' motions to dismiss raise a Rule
12(b)(1) facial attack on Plaintiffs' jurisdictional allegations. Coxco Realty, LLC v. United States
Army Corps of Engineers, 2008 WL 640946, *2 (W.D. Ky. March 4, 2008).
B. Failure to State a Claim
Upon a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), a
court “must construe the complaint in the light most favorable to plaintiffs,” League of United
Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), accepting
all of the plaintiffs' allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Under this
standard, the plaintiffs must provide the grounds for their entitlement to relief, which “requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The plaintiffs satisfy this standard only when they “plead[ ] factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. A complaint falls short if it pleads facts that are merely
“consistent with a defendant's liability” or if the facts do not “permit the court to infer more than
the mere possibility of misconduct.” Id. at 678–79. Instead, the allegations must “‘show[ ] that
the pleader is entitled to relief.’” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
The Plaintiff alleges that Defendants violated constitutional rights and federal laws by not
compensating him and not providing him an opportunity to contest the actions of the government
prior to the demolition of his property. Defendants contend that Plaintiff must exhaust state
remedies, specifically an inverse condemnation action, before asserting these claims in federal
court. As such, Defendants argue that Plaintiff’s claims are not ripe, and thus, the Court does not
have subject matter jurisdiction.
The Supreme Court in Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank, 473
U.S. 172, 195 (1985) held that “if a State provides an adequate procedure for seeking just
compensation, the property owner cannot claim a violation of the Just Compensation Clause until
it has used the procedure and been denied just compensation.” Plaintiff attempts to maneuver
around the requirement that he exhaust state remedies by arguing that this case involves a
physical taking instead of a regulatory taking, and as a result, Williamson does not apply to the
present facts. In reliance on this position, Plaintiff cites to Kruse v. Village of Chagrin Falls, 74
F.3d 694 (6th Cir. 1996), but Kruse has little relevance to Kentucky law and the Sixth Circuit
overruled the case in Coles v. Granville, 448 F.3d 853 (6th Cir. 2006). Scotts v. Pierson, 2013
WL 5487342, *21 (S.D. Ohio Sept. 30, 2013) (“[T]he Sixth Circuit expressly overruled Kruse,
explaining: ‘[t]oday, ten years after the Kruse decision, this uncertainty has all but disappeared,
as the Ohio courts have accepted a mandamus action as the appropriate approach for a plaintiff
alleging a taking without just compensation.’”). As opposed to the uncertainty that existed in
Ohio as to an appropriate state remedy, “Kentucky provides a cause of action for inverse
condemnation when a citizen alleges that his property has been taken through the exercise of the
state's regulatory powers.” Hammond v. Baldwin, 866 F.2d 172, 179 (6th Cir. 1989). As a
result, Plaintiff must exhaust state court remedies before his Just Compensation claim is ripe in
federal court. See Heaton v. City of Princeton, 47 F. Supp. 2d 841, 846-47 (W.D. Ky. 1997)
aff'd, 178 F.3d 1294 (6th Cir. 1999).
Plaintiff contends that he does not need to file an action for an inverse condemnation
because this taking solely related to private use, not public use. The Court rejects Plaintiff’s
argument concerning the condemnation of his property falling into the category of a private
taking. Plaintiff correctly states that a taking for a purely private use constitutes a constitutional
violation. Montgomery v. Carter Cnty., 226 F.3d 758, 765 (6th Cir. 2000). However, to succeed
on such a claim, Plaintiff must show that the “taking had no rational connection to a minimally
plausible conception of the public interest.” Id. at 768. Here, the facts alleged by Plaintiff
demonstrate that his property was demolished in connection with obtaining a local development
grant. This fact alone is enough to meet the extremely low threshold of showing a connection to
a public use.
In addition to asserting a Just Compensation claim under the Fifth and Fourteenth
Amendment, Plaintiff asserts a federal claim under the Fifth and Fourteenth Amendment for
failing to provide substantive and procedural due process. Plaintiff’s procedural due process
claim fails because the government does not need to provide notice prior to the physical invasion
of private property for public use as long as “private property owners may pursue meaningful
postdeprivation procedures to recover just compensation.” Presley v. City of Charlottesville, 464
F.3d 480, 490 (4th Cir. 2006) (citing Bailey v. Anderson, 326 U.S. 203, 205, 66 S.Ct. 66 (1945));
see also Bigelow v. Michigan Dep’t of Natural Res., 970 F.2d 154, 159-60 (6th Cir. 1992)
(“[A]ddressing the plaintiffs' procedural due process claim at this stage of the proceedings would
allow future plaintiffs effectively to circumvent the ripeness requirement for takings claims
simply by attaching a procedural due process claim to their complaint.”). This also applies to
Plaintiff’s substantive due process claim. Warren v. City of Athens, 411 F.3d 697, 708 (6th Cir.
2005) (“Takings claims, whether asserted as just compensation or substantive due process
claims, are subject to ripeness requirements . . . .”). Because Plaintiff has not attempted to
pursue an action under state law, his due process claims are not ripe.
As for Plaintiff’s federal statutory claims, Plaintiff’s 42 U.S.C. § 1985 fails because it is
only ancillary to Plaintiff’s Fifth Amendment claim. Coles, 448 F.3d at 855 (affirming the
district court’s dismissal of other federal claims, including the claim under 42 U.S.C § 1985, on
the ground that plaintiff’s Fifth Amendment claim was not ripe). Additionally, the Plaintiff
failed to properly assert enough facts to support a claim under Section 1985. To state a claim
under Section 1985(3), the Sixth Circuit holds that “a plaintiff must prove (1) a conspiracy
involving two or more persons (2) for the purpose of depriving, directly or indirectly, a person or
class of persons of the equal protection of the laws and (3) an act in furtherance of the conspiracy
(4) which causes injury to a person or property, or a deprivation of any right or privilege of a
citizen of the United States.” Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir.
1994). In more general terms, to state a cognizable Section 1985(3) claim, “a claimant must
prove both membership in a protected class and discrimination on account of it.” Estate of
Smithers ex rel. Norris v. City of Flint, 602 F.3d 758, 765 (6th Cir.2010); accord Griffin v.
Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (holding that “there must
be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the
conspirators' action”). In the present case, Plaintiff does not assert any facts to suggest he is a
member of a protected class or that he was discriminated on account of it.
Plaintiff also asserts Fourth Amendment and Fourteenth Amendment claims under 42
U.S.C. § 1983, but this claim is really just another way of stating his Fifth Amendment claim.
Scott v. Garrard Cnty. Fiscal Court, 2012 WL 176485, *7 (E.D. Ky. Jan. 20, 2012) (“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.”).
recognizes in Brown v. Metro. Gov’t of Nashville, 2012 WL 2861593, *4 (6th Cir. Jan. 9, 2012)
that the Sixth Circuit stated that for the purposes of the statute of limitations in that case, the
Fourth Amendment claim was not subsumed by the Fifth Amendment. However, the Sixth
Circuit only discussed the Fourth Amendment claim in reference to the statute of limitations
where the plaintiff had already exhausted his state court remedies. As such, the Court believes
that the facts of the present case align more closely with Scott than with Brown.1 Moreover, a
It should be noted that the Sixth Circuit in Coles affirmed the dismissal of the plaintiff’s Fourth and Fourteenth
Amendment claim under Section 1983 for lack of ripeness. Coles, 448 F.3d at 860‐65.
conclusion otherwise would completely erode the holding in Williamson through artful pleading
of the Fourth Amendment and allow for duplicative proceedings in the state and federal courts
over identical facts.2
Plaintiff also asserts multiple state law claims. Because Plaintiffs’ federal claims are
subject to dismissal, the Court declines to exercise supplemental jurisdiction over the state-law
claims. See 18 U.S.C. § 1367(c)(3) (providing that a district court may decline to exercise
supplemental jurisdiction when it has dismissed all claims over which it has original
jurisdiction); see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). Therefore,
Plaintiffs’ state law claims are DISMISSED WITHOUT PREJUDICE. 28 U.S.C. §
For the foregoing reasons, Defendants City of Franklin, Franklin Police Department, and
Kenton Powell’s Motion to Dismiss is GRANTED [DN 18]. Also, Defendant Barren River Area
Development District’s motion to dismiss [DN 19] and Defendant Kevin Allen’s motion to
Judge Traxler from the Fourth Circuit explained the problem with allowing a plaintiff to continue in
federal court with a Fourth Amendment claim as follows:
[T]he application of the Fourth Amendment to cases like this one would upset the well‐
established and clear procedure for raising constitutional challenges to this type of
taking by the government, requiring the plaintiff first to seek in state court
compensation for the taking and permitting the plaintiff to proceed to federal court only
if just compensation is denied. Allowing a plaintiff to bring a Fourth Amendment claim
any time a state government physically seizes real property for public use, as [plaintiff]
contends we must, would severely undermine the process contemplated by the
Supreme Court in Williamson.
Presley v. City Of Charlottesville, 464 F.3d 480, 493 (4th Cir. 2006) (Traxler, J., concurring in part and
dissenting in part) (citing Williamson, 473 U.S. at 194‐95).
dismiss [DN 20] are GRANTED.
All of Plaintiff’s claims, both federal and state, are
DISMISSED WITHOUT PREJUDICE.
November 27, 2013
cc: counsel of record
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