Yawn et al v. Dorchester County et al
Filing
121
AMENDED OPINION AND ORDER: Defendants motion for summary judgment, ECF No. 101, is GRANTED. This matter is hereby REMANDED to the Court of Common Pleas for Dorchester County, South Carolina, pursuant to 28 U.S.C. § 1367(c). Defendants motion to exclude, ECF No. 102, is DENIED as moot. Signed by Honorable Margaret B Seymour on 5/5/2020. (vdru, )
2:17-cv-00440-MBS
Date Filed 05/05/20
Entry Number 121
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Mitch Randall Yawn and Juanita Mae Stanley
d/b/a Flowertown Bee Farm and Supplies,
) Civil Action No. 2:17-cv-440-MBS
)
) AMENDED ORDER AND OPINION
Plaintiffs,
)
v.
)
)
Dorchester County; Town of Summerville;
)
Allen Aviation, Inc; and Al Allen,
)
)
)
Defendants.
)
__________________________________________)
I.
PROCEDURAL HISTORY
This case arises as the result of an aerial mosquito spray conducted by Dorchester
County, South Carolina (“Defendant”) that Mitch Randall Yawn and Juanita Mae Stanley
(“Plaintiffs”) allege killed millions of bees on their bee farm, Flowertown Bee Farm and
Supplies. On January 27, 2017, Plaintiffs filed suit against Defendant; the Town of
Summerville, South Carolina; 1 Allen Aviation, Inc; and Al Allen 2 in the Court of Common Pleas
for Dorchester County, South Carolina. ECF No. 1. The case was removed to federal court on
February 13, 2017. Id. In an amended complaint, filed on August 18, 2017, Plaintiffs allege
violations of the Fifth and Fourteenth Amendments of the U.S. Constitution. ECF No. 28 at 7.
Specifically, Plaintiffs allege that the spray and subsequent death of the bees amounted to an
1
The Town of Summerville, South Carolina, was terminated from this action pursuant to a
stipulation of dismissal filed on September 25, 2017. ECF No. 37.
2
Allen Aviation, Inc. and Al Allen were dismissed on May 6, 2019 after successful mediation.
ECF Nos. 87, 88. A stipulation of dismissal with prejudice was entered on June 18, 2019. ECF
No. 93.
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unconstitutional Taking and that the Due Process and Equal Protection Clauses were violated
because their property was taken without notice and opportunity to object. Id. at 7-9. Plaintiffs
bring their federal Constitutional claims under 42 U.S.C. § 1983. Plaintiffs also bring state
constitutional claims under South Carolina Constitution Article I, §§ 13, 22, the Takings Clause;
and Article I, § 2, the Due Process and Equal Protection Clauses. Id. at 9-11. Plaintiffs also bring
claims of negligence, trespass, and strict liability under the South Carolina Tort Claims Act. Id.
at 11-13.
On December 16, 2019, Defendant filed a motion for summary judgment. ECF No. 101.
Defendant argues that Plaintiffs have failed to properly state a § 1983 claim. Additionally,
Defendant argues that in the event a § 1983 claim was properly alleged, its actions did not violate
the constitution. Defendant did not address the state law claims in its motion. Plaintiffs filed a
response in opposition on January 14, 2020. ECF No. 105. A hearing was held on Defendant’s
motion on February 26, 2020. ECF No. 112.
II.
FACTUAL BACKGROUND
In 2016, Defendant received numerous calls from concerned citizens asking Defendant to
take action to combat the growing number of mosquitoes in the area, which can transmit the zika
virus to humans. ECF No. 101-1 at 10. Officials working for Defendant determined that the usual
method to control mosquito populations, spraying with a truck, would not allow mosquito killing
agents to reach all areas with mosquito populations. Id. at 9. Therefore, Defendant hired Allen
Aviation to perform various aerial sprays of a mosquito killing agent. ECF No. 28 at 5.
Defendant states that the purpose of the aerial spray was to stop the spread of the zika virus. ECF
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No. 101-2 at 35. The zika virus was a serious health concern in 2016. 3 At the time of the spray,
there were confirmed cases of the zika virus in South Carolina. Id. at 35-36. Clayton Gaskins
(“Gaskins”), the Mosquito Abatement Coordinator for Defendant, coordinated the aerial sprays.
ECF No. 101-1 at 3. Tracey Langley, the public information officer for Defendant, placed
notices about the first aerial spray with numerous television news channels and in Charleston,
South Carolina’s Post and Courier newspaper. Id. at 11-12. Gaskins also made a courtesy call to
various beekeepers to inform them that an aerial spray was to take place, in order to give
beekeepers further opportunity to protect their bees from the chemicals. Id. at 5. Gaskins
admitted that he made a mistake and did not call Plaintiffs on this occasion. Id. at 16. Plaintiffs
did not take any precautions to protect their bees. The aerial spray occurred on August 28, 2016,
which Plaintiffs allege resulted in the killing of millions of Plaintiffs’ bees. ECF No. 28 at 5.
III.
LEGAL STANDARDS
A. 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. Rule 56(a). The moving party will be entitled to a judgment as a matter of law if the
“nonmoving party has failed to make a sufficient showing on an essential element of her case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Accordingly, “[o]ne of the principal purposes
of the summary judgment rule is to isolate and dispose of factually unsupported claims or
defenses.” Id. at 323–24. The moving party must initially show that there is no genuine issue of
3
Morgan Hennessey, DVM, Marc Fischer, MD, and J. Erin Staples, MD, PhD; Zika Virus
Spreads to New Areas — Region of the Americas, May 2015–January 2016, Centers for Disease
Control and Prevention (January 22, 2016),
https://www.cdc.gov/mmwr/volumes/65/wr/mm6503e1.htm.
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material fact. Id. at 323. Once the movant has made this showing, the non-moving party must
demonstrate specific, material facts that give rise to a genuine issue. Id. at 324. A “mere
scintilla” of evidence is insufficient to overcome the summary judgment motion. Anderson v.
Liberty Lobby, 477 U.S. 242, 252 (1986).
B. 42 U.S.C. § 1983
Title 42, U.S.C. § 1983 provides a vehicle through which plaintiffs can seek relief for
violations of their civil rights. Section 1983 states, in part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable.
Municipalities are considered “persons” under § 1983. A municipality may be sued if “a
policy statement, ordinance, regulation, or decision officially adopted and promulgated by that
body’s officers” caused a Constitutional tort. Monell v. New York City Dep’t. of Soc. Serv., 436
U.S. 658, 690 (1978). The “policy which ordered an unconstitutional act can be established by a
single decision by proper municipal policymakers.” Pembaur v. City of Cincinnati, 475 U.S. 469,
484 n.11 (1986).
C. Fifth Amendment of the United States Constitution
The state’s power of eminent domain allows it to take private property for public use. The
Fifth Amendment of the Constitution requires that the state compensate those from whom it
takes property for public use, providing that “nor shall private property be taken for public use,
without just compensation.” U.S. Const. amend. V. The Fourteenth Amendment applies the Fifth
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Amendment to the states. Murr v. Wisconsin, 137 S. Ct. 1933, 1942 (2017). Often, the Takings
Clause is implicated in cases where the government appropriates land or other real property from
individuals. However, the Takings Clause also applies to cases where the government
appropriates personal property. Horne v. Dep’t of Agric., 135 S. Ct. 2419, 2427 (2015)(noting
that “people still do not expect their property, real or personal, to be actually occupied or taken
away”). The test to determine if the Takings Clause was violated requires a reviewing court to
determine if there was a Taking, and then whether such a Taking “‘deprives the owner of all
economically valuable use’ of the item taken.” Id. (quoting Tahoe–Sierra Pres. Council, Inc. v.
Tahoe Reg’l Planning Agency, 535 U.S. 302, 323 (2002). Some courts impose an affirmative act
element to Takings Clause claims. Chae Bros., LLC v. Mayor & City Council of Baltimore, No.
CV GLR-17-1657, 2018 WL 1583468, at *8 (D. Md. Mar. 30, 2018)(stating that
“‘merely...incidental or consequential’ damage to private property—even when resulting from
government action—is, at most, ‘compensable as a tort.’”)(quoting Ridge Line v. United States,
346 F.3d 1346, 1355–56 (Fed. Cir. 2003)).
The state’s power of eminent domain is separate and distinct from the state’s police
power. The police power refers to the state’s “general power of governing.” Nat’l Fed’n of
Indep. Bus. v. Sebelius, 567 U.S. 519, 536 (2012). Specifically, such power “extends to all
matters affecting the public health or the public morals.” Stone v. Mississippi, 101 U.S. 814, 818
(1879).
IV.
ANALYSIS AND DISCUSSION
The court must first determine whether Defendant, a municipality, enacted a policy that
would subject it to liability under § 1983. In this case, Gaskins determined that the usual method
of mosquito abatement was not effective given the growing mosquito population and the
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geographical limitations of truck sprays. ECF No. 101-1 at 6. Gaskins reported this information
to his supervisor, Jason Ward (“Ward”), the Dorchester County Administrator. Id. at 7. Ward
instructed Gaskins to contact officials in Berkeley County, South Carolina, and Charleston
County, South Carolina, to inquire about aerial sprays, as those counties had conducted aerial
sprays in the past. Id. Ward also contacted the South Carolina Department of Health and
Environmental Control, which suggested that Defendant conduct aerial sprays. Id. at 8. With this
information, Ward requested and received funding to conduct the aerial sprays from the
Dorchester County Council, and ultimately conducted the aerial sprays. Id. at 9. The court finds
that the plan adopted by municipal officials working for Defendant to combat the mosquito
problem and ultimate decision to conduct the aerial spray was a policy that was officially
adopted by Defendant and satisfies the requirements of a § 1983 claim.
The court must now determine whether a Constitutional tort occurred. Plaintiffs allege
that the decision to conduct the aerial spray and the resulting destruction of the bees amounts to
an unconstitutional Taking in that the state exercised its power of eminent domain. Defendant
argues that it exercised its police power to protect the public from mosquitoes and the zika virus
that they carry. Defendant further submits that it did not affirmatively act to take Plaintiffs’ bees
for public use.
Courts have illustrated the distinction between the power of eminent domain and the
police power. In Lech v. Jackson, a husband and wife sued police officers and the city of
Greenwood Village, Colorado, after police officers damaged their home. C/A No. 18-1051, 2019
WL 5581699 (10th Cir. Oct. 29, 2019). In Lech, officers used a “BearCat,” a Humvee-like
vehicle, to “open multiple holes” in the home to extract a dangerous criminal. Id. at *2. As a
result of the prolonged extraction operation, the Lech home “was rendered uninhabitable.” Id.
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The Leches brought a claim under the Takings Clause. The district court found that, in raiding
and destroying the Lech home to remove a dangerous criminal, the city was exercising its police
power and not its eminent domain power. Id. Accordingly, the district court awarded no
compensation.
On appeal, the Court of Appeals for the Tenth Circuit reasoned that, “when the state acts
to preserve the ‘safety of the public,’ the state ‘is not, and, consistent[ ] with the existence and
safety of organized society, cannot be, burdened with the condition that the state must
compensate [affected property owners] for pecuniary losses they may sustain’ in the process.” Id.
at *5 (quoting Mugler v. Kansas, 123 U.S. 623, 669 (1887)). The Tenth Circuit ruled that “when
the state acts pursuant to its police power, rather than the power of eminent domain, its actions
do not constitute a Taking for purposes of the Takings Clause.” Id. Courts in other Circuits, as
well as two district courts in this Circuit, have adopted this reasoning. See, e.g., AmeriSource
Corp. v. United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008); Patty v. United States, 136 Fed. Cl.
211, 214 (2018)(“The distinction between an exercise of the police power and a constitutional
Taking has been characterized . . . as ‘whether the governmental action operates to secure a
benefit for or to prevent a harm to the public.’”)(quoting Morton Thiokol, Inc. v. United States, 4
Cl. Ct. 625, 630 (1984)); Cybernet, LLC v. David, No. 7:16-CV-16-RJ, 2018 WL 5779511, at
*16 (E.D.N.C. Nov. 2, 2018); White v. City of Greensboro, 408 F.Supp.3d 677, 703 (M.D.N.C.
2019) (holding that property seized during the execution of a search warrant was not the basis of
a Takings Clause claim and that “when law enforcement officials exercise their authority to seize
[or] impound [property]...or otherwise enforce criminal law, law enforcement exercises its police
power, not its power of eminent domain”).
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In their memorandum in opposition to Defendant’s motion for summary judgment,
Plaintiffs state that Defendant’s decision to spray “may [have been] within [Defendant’s] police
power,” but assert that Defendant “cannot benefit the public by taking the personal property of
the Plaintiffs without paying them just compensation.” ECF No. 105 at 7. Furthermore, in oral
argument, Plaintiffs’ attorney argued that he believed that the spray was an exercise of police
power but that it was clearly a taking of property without just compensation.
It is undisputed that the spray was conducted to prevent the spread of disease, a matter
that would affect public health. Such an action fits squarely within the state’s police power. “If
the injury complained of is only incidental to the legitimate exercise of governmental powers for
the public good, then there is no taking of property for the public use, and a right to
compensation, on account of such injury, does not attach under the Constitution.” Chicago, B. &
Q. Ry. Co. v. People of State of Illinois, 200 U.S. 561, 593–94 (1906). The loss of Plaintiff’s
bees was unintentional; it was an unfortunate consequence to a proper exercise of Defendant’s
police power. Because Defendant was exercising its police power, and not its power of eminent
domain, the Takings Clause is not implicated.
The court recognizes the importance of bees to agriculture, the economy, and the
environment, as well as the need to mitigate threats to bee colonies. See, e.g.,
https://www.fda.gov/animal-veterinary/animal-health-literacy/helping-agricultures-helpfulhoney-bees (accessed March 12, 2020). However, because Plaintiffs are not entitled to federal
compensation, the court will remand Plaintiffs’ state law claims for further consideration. See 28
U.S.C. § 1367(c)(providing that a district court may decline to exercise supplemental jurisdiction
when it “has dismissed all claims over which it has original jurisdiction”).
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V.
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CONCLUSION
Defendant’s motion for summary judgment, ECF No. 101, is GRANTED. This matter is
hereby REMANDED to the Court of Common Pleas for Dorchester County, South Carolina,
pursuant to 28 U.S.C. § 1367(c). Defendant’s motion to exclude, ECF No. 102, is DENIED as
moot.
IT IS SO ORDERED.
Charleston, South Carolina
Dated: May 5, 2020
Nunc Pro Tunc March 17, 2020
/s/ Margaret B. Seymour
Margaret B. Seymour
Senior United States District Judge
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