Amaya v. City of San Antonio

Filing 81

ORDER GRANTING 69 Motion for Summary Judgment. Signed by Judge David A. Ezra. (rf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JOSEPH AMAYA,
Plaintiff,
vs.
CITY OF SAN ANTONIO,
Defendant.

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No. SA:12–CV–574–DAE

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT
Before the Court is a Motion for Summary Judgment filed by
Defendant City of San Antonio (“the City”) (Dkt. # 69.) On December 23, 2014,
the Court heard oral argument on the Motion. Edward L. Bravenec, Esq., appeared
at the hearing on behalf of Plaintiff Joseph Amaya (“Plaintiff”); Judith D. Sanchez,
Esq., appeared at the hearing on behalf of the City. After reviewing the Motion
and the supporting and opposing memoranda, and considering the parties’
arguments at the hearing, the Court GRANTS Defendant’s Motion for Summary
Judgment. (Dkt. # 69.)
BACKGROUND
I.

Factual Background
On April 5, 2007, Dangerous Premises Investigator Alice Guajardo
1

(“Guajardo”)—an employee of the City—inspected the residence located at 429
Devine Street in San Antonio, Texas (the “Property”) following notification from
the Fire Department of a fire-damaged structure. (Dkt. # 69-1 (Guajardo Affidavit)
¶¶ 2–3.) She found a fire-damaged, unsecured, and “dangerous” structure that
“possibly warranted emergency demolition.” (Id. ¶ 3.)
On May 17, 2007, Guajardo again inspected the Property and found it
was in the same “dangerous,” unsecured condition. (Id. ¶ 4.) According to
Guajardo, her assessment revealed fire damage to the Property’s foundation,
exterior walls, and roof system. (Id. ¶ 5.) She took photographs of the damage and
advised the Historic Preservation Office of the “dangerous condition” of the firedamaged property. (Id. ¶¶ 4–5.)
On May 29, 2007, Guajardo spoke with Plaintiff, the owner of the
Property. (Id. ¶ 6.) Plaintiff informed Guajardo that his application for assistance
to rebuild the Property had been approved by the Unitarian Universalist Housing
Assistance Corporation (“U.U. Housing”) and that he would begin repairs in the
near future. (Id.) However, when Guajardo spoke with U.U. Housing on May 31,
2007, she was advised that Plaintiff’s application was still pending. (Id. ¶ 7.)
Around a month later, Guajardo re-inspected the Property and found that no repairs
had been conducted. (Id. ¶ 9.)

2

On June 7, 2007, Building Inspector Ramiro Carrillo (“Carrillo”), also
an employee of the City, inspected the Property and agreed with Guajardo that it
was severely fire-damaged and “structurally unsound.” (Id. ¶ 8.) He
recommended demolition of the Property. (Id.)
Several weeks later, Guajardo again inspected the Property and found
that no repairs had been conducted. (Id. ¶ 9.) On July 2, 2007, she contacted
Plaintiff to determine the time frame in which repairs were to be conducted. (Id.
¶ 10.) On July 10, 2007, Plaintiff informed Guajardo that repairs would commence
on July 16, 2007. (Id. ¶ 11.) On the same day, the Lavaca Historic District asked
that demolition of the structure be stayed because of its potential historical
significance. (Id.)
On July 30, 2007, Guajardo conducted yet another inspection of the
Property and found it to be in the same “dangerous” condition. (Id. ¶ 12.) At that
time, she recommended demolition of the Property. (Id.) On the same day, U.U.
Housing requested that demolition proceedings be abated because repairs to the
Property were to commence if Plaintiff’s application was approved. (Id.) Several
months later, on November 27, 2007, Guajardo again visited the Property and
found it to be in the same condition. (Id.) According to Guajardo, although she
attempted to contact Plaintiff to discuss the matter, she was unable to reach him by
telephone. (Id. ¶ 13.)
3

On March 13, 2008, Guajardo re-inspected the Property and found
that it had “deteriorated substantially from the initial inspections.” (Id. ¶ 14.) She
further found that the severity of the deterioration “posed a clear and imminent
threat” to “public safety.” (Id.) After consulting with Carrillo—and subsequently
obtaining the approval of Rod Sanchez (“Sanchez”), the Director of the City’s
Development Services Department, and David Garza (“Garza”), Housing and
Neighborhood Services Director—the Property was “declared to be an emergency
which required demolition.” (Id. ¶ 15.) Both Sanchez and Garza issued sworn
affidavits stating that the Property posed a clear and imminent threat to life, safety,
and/or property necessitating immediate demolition. (Id. at 20–21.) They further
found that there was no “feasible alternative abatement procedure” other than
demolition. (Id.)
On March 14, 2008, the City carried out an emergency demolition of
the Property. (Id. ¶ 16.) On March 18, 2008, Garza, acting on behalf of the City,
sent a letter notifying Plaintiff that the Property had been demolished and that
Plaintiff should expect an invoice for the demolition and related expenses. (Id. at
12.) The next month, an invoice for $3,480.00 was mailed to Plaintiff. (Id. at 13.)
II.

Procedural Background
On June 11, 2012, Plaintiff filed suit against the City asserting claims

for violations of (1) Chapter 6, Article VIII, § 6-175 of the City’s Code of
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Ordinances; (2) Chapter 214 of the Texas Local Government Code; (3) Article I,
§ 17 and § 19 of the Texas State Constitution; and (4) 42 U.S.C. § 1983 for the
deprivation of rights secured by the Fourth, Fifth, and Fourteenth Amendments.
(Dkt. # 1.) Plaintiff also sought a declaratory judgment under the Texas Uniform
Declaratory Judgment Act that the Property did not constitute a clear and imminent
danger to the life, safety or property of any person and that under the
circumstances, other abatement procedures were reasonably available rather than
demolition. (Id. ¶ 15.1.)
On October 30, 2013, after reviewing the motions and the supporting
and opposing memoranda, the Court denied Plaintiff’s Motion for Judgment on the
Pleadings (Dkt. # 22), granted the City’s Motion to Dismiss (Dkt. # 24), denied
Plaintiff’s Motion for Partial Summary Judgment (Dkt. # 37), and granted in part
and denied in part the City’s Motion for Summary Judgment (Dkt. # 38). (Dkt. #
47.)
Specifically, the Court denied Plaintiff’s Motion for Judgment on the
Pleadings with respect to Plaintiff’s claims for violations of the Texas Constitution
as well as his claims for violations of the Fourth and Fourteenth Amendments of
the United States Constitution brought pursuant to 42 U.S.C. § 1983. (Id. at 22.)
The Court granted the City’s Motion for Summary Judgment on each of Plaintiff’s
claims with the exception of his claims brought pursuant to 42 U.S.C. § 1983. (Id.
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at 25.) The Court granted Plaintiff thirty days to file an amended pleading with
respect to his § 1983 claims; on November 8, 2013, Plaintiff filed an Amended
Complaint. (Dkt. # 50.)
On July 3, 2014, after reviewing the motion and the opposing
memorandum, the Court issued an Order Granting in Part and Denying in Part the
City’s Motion to Dismiss (Dkt. # 52). (Dkt. # 60.) The Court granted the Motion
to Dismiss as to Plaintiff’s re-asserted claims and denied the Motion to Dismiss
Plaintiff’s § 1983 claim, holding that Plaintiff had pleaded sufficient facts to state a
viable claim for municipal liability under § 1983. (Id. at 14–15). However, the
Court noted that the outcome likely would have been different had the City filed a
motion for summary judgment. (Id. at 14.)
On August 26, 2014, the City filed the instant Motion for Summary
Judgment on Plaintiff’s § 1983 claim. (Dkt. # 69.) On December 16, 2014,
Plaintiff filed a Motion for Leave to File Response to Defendant’s Motion for
Summary Judgment. (Dkt. # 74.) The City opposed Plaintiff’s Motion, (Dkt.
# 77), and on December 18, 2014, the Court denied Plaintiff’s Motion after finding
that Plaintiff had failed to provide good reason why his response was filed more
than three months out of time. (Dkt. # 78.) However, the Court will consider
Plaintiff’s Response to Defendant’s First Motion for Summary Judgment. (Dkt.

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# 41).1 Out of fairness to the City, the Court will also consider the City’s Reply to
Plaintiff’s Response to the first summary judgment motion. (Dkt. # 43.)
LEGAL STANDARD
Summary judgment is proper where the evidence demonstrates “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); Cannata v. Catholic Diocese
of Austin, 700 F.3d 169, 172 (5th Cir. 2012). The party moving for summary
judgment bears the burden of demonstrating the absence of a genuine issue of
material fact. Davis v. Fort Bend Cnty., 765 F.3d 480, 484 (5th Cir. 2014) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party meets its
burden, the burden shifts to the nonmoving party to come forward with specific
facts that establish the existence of a genuine issue for trial. ACE Am. Ins. Co. v.
Freeport Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir. 2012).
1

At the hearing, Plaintiff argued that the Court should consider his Response to
Defendant’s First Motion for Summary Judgment (Dkt. # 41) in lieu of his late
response to the instant Motion. Although the Court remains unsympathetic to
Plaintiff’s failure to file a timely response to the instant Motion, it appears that
other courts have considered previously-filed responses when ruling on subsequent
motions for summary judgment concerning the same claims. See Ridley v.
Kimberly-Clark Corp., No. 3:01–CV–0056, 2003 WL 1825628, at *2 (E.D. Tex.
Apr. 7, 2003) (relying on plaintiff’s response to defendant’s first motion for
summary judgment when ruling on defendant’s second motion for summary
judgment on the same claims, where plaintiff failed to file a response to
defendant’s second motion). Because Plaintiff’s previous Response raises only
those arguments Plaintiff raised at the hearing, the Court will consider it in this
Order. However, the Court strongly cautions Plaintiff not to make a habit of
relying on previous filings to mitigate his failure to respond in a timely fashion.
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The court evaluates the proffered evidence in the light most favorable
to the nonmoving party. Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir.
2003). The court “examines the pleadings, affidavits, and other evidence
introduced in the motion, resolves any factual doubts in favor of the non-movant,
and determines whether a triable issue of fact exists.” Leghart v. Hauk, 25 F.
Supp. 2d 748, 751 (W.D. Tex. 1998). However, “[u]nsubstantied assertions,
improbable inferences, and unsupported speculation are not sufficient to defeat a
motion for summary judgment.” Brown v. City of Hous., 337 F.3d 539, 541 (5th
Cir. 2003).
DISCUSSION
The only remaining claim in this case is Plaintiff’s § 1983 claim
against the City under a theory of municipal liability. (See Dkt. # 60.) A
municipality is a “person” subject to suit under § 1983. Zarnow v. City of Wichita
Falls, Tex., 614 F.3d 161, 166 (5th Cir. 2010) (citing Monell v. N.Y.C. Dep’t of
Soc. Servs., 436 U.S. 658, 690 (1978)). A local government may be sued “if it is
alleged to have caused a constitutional tort through a ‘policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s
officers.’” Id. (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988)).
Municipal liability may also attach where the constitutional deprivation was

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attributable to a government custom, even if the custom has not received formal
approval from the government entity. Id. (citing Monell, 436 U.S. at 690–91).
“[M]unicipal liability under Section 1983 requires proof of three
elements: a policymaker; an official policy; and a violation of constitutional rights
whose moving force is the policy or custom.” Piotrowski v. City of Hous., 237
F.3d 567, 578 (5th Cir. 2001) (citing Monell, 436 U.S. at 578)). “A municipality
may not be subject to liability merely for employing a tortfeasor.” Zarnow, 614
F.3d at 167. Instead, “[m]unicipal liability requires deliberate action attributable to
the municipality that is the direct cause of the alleged constitutional violation.” Id.
The City claims that Plaintiff’s Amended Complaint fails to properly
plead the third element of Monell—namely, that he suffered a constitutional injury
whose moving force was a municipal policy or custom. (Dkt. # 69 ¶ 2.1.) To
succeed on the third element, Plaintiff must prove both (1) that he suffered a
constitutional injury and (2) that the injury was the result of a municipal policy or
custom.
I.

Constitutional Injury
Plaintiff’s Amended Complaint alleges that as a result of the City’s

actions, he suffered violations of his Fourth, Fifth, and Fourteenth Amendment
rights. (Dkt. # 50 ¶ 10.9.) Plaintiff first alleges that by demolishing the Property
the City subjected him to an unreasonable search and seizure without a warrant in
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violation of the Fourth Amendment. (Id. ¶ 13.3.) He next alleges that by
demolishing the Property without notice and without compensation the City
deprived him of his property without due process, amounting to a taking in
violation of the Fifth Amendment. (Id. ¶¶ 12.3–12.4.) Finally, Plaintiff alleges
that by demolishing the Property without notice the City violated Plaintiff’s right
to due process, including notice and a hearing, in violation of the Fourteenth
Amendment. (Id. ¶ 11.4.)
The City argues that no constitutional injury resulted from the
demolition because its evidence shows that the City took all appropriate steps to
ensure the Property was demolished only after all constitutional safeguards had
been met. (Dkt. # 69 ¶ 5.3.)
A.

Fourteenth Amendment
Because the Fourteenth Amendment due process analysis is relevant

to the Fourth Amendment inquiry, the Court addresses the alleged Fourteenth
Amendment violation first. Plaintiff’s Amended Complaint claims that the City
violated Plaintiff’s due process rights, guaranteed to him by the Fourteenth
Amendment, when it demolished the Property without notice or a hearing. (Dkt.
# 50 ¶ 11.4.)
As Supreme Court has explained, “[a]n essential principle of due
process is that a deprivation of life, liberty, or property ‘be preceded by notice and
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opportunity for hearing appropriate to the nature of the case.’” Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 313 (1950)). The “root requirement” of the Due
Process Clause is “that an individual be given an opportunity for a hearing before
he is deprived of any significant property interest.” Id. (emphasis in the original).
However, due process “does not require that a property owner receive
actual notice before the government may take his property.” Jones v. Flowers, 547
U.S. 220, 226 (2006). In “emergency situations,” the exigencies of “summary
administrative action” take precedent over the notice and hearing requirements of
the Due Process Clause. Hodel v. Va. Surface Mining & Reclamation Ass’n, 452
U.S. 264, 299–300 (1981). “[W]here a State must act quickly, or where it would
be impractical to provide predeprivation process, postdeprivation process satisfies
the requirements of the Due Process Clause.” Gilbert v. Homar, 520 U.S. 924, 931
(1997). “Protection of the health and safety of the public is a paramount
governmental interest which justifies summary administrative action. Indeed,
deprivation of property to protect the public health and safety is one of the oldest
examples of permissible summary action.” Hodel, 452 U.S. at 300 (quotation
omitted). In cases where the public health and safety is at risk, “[t]he relevant
inquiry is not whether a [summary action] order should have been issued . . . but

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whether the statutory procedure itself is incapable of affording due process.” Id. at
302 (citation omitted).
Here, Plaintiff has not argued that city ordinance providing for
emergency demolitions (City of San Antonio Ordinance 6-175, “the Ordinance”) is
unconstitutional on its face; instead, he argues that the manner in which the
Ordinance was applied in his case caused him to suffer several constitutional
injuries. (See Dkt. # 50 ¶¶ 10.1–10.9.) The Fifth Circuit, in an unpublished
opinion, found that the version of Ordinance 6-175 in effect in 2008 2 was

2

The City presented the Court with a copy of the 2008 version of Ordinance 6-175,
(Dkt. # 69-4), and relies on it in support of its argument that the City’s actions did
not violate Plaintiff’s constitutional rights. (Dkt. # 69 ¶ 4.1.) The version of
Ordinance 6-175 in effect in 2008 read in relevant part:
(a) In cases where it appears to the code compliance director, the fire chief,
or the director of development services, that due to one or more structural
conditions threatening the structural integrity of a building or structure, there
is clear and imminent danger to the life, safety or property of any person
unless a dangerous building or structure, as defined in this article, is
immediately repaired or demolished . . . any one of those officials (the
official) shall execute the immediate vacation and or repair or demolition of
such very dangerous building or structure, regardless of the date of its
construction. Such summary action shall require concurrence from at least
one other of the aforesaid officials. In the case of summary demolition,
concurrence of the director of development services shall be required. Such
concurrence shall include a determination that under the circumstances no
other abatement procedure is reasonably available except demolition. The
official taking action shall thereafter immediately provide notice to the
[Dangerous Structures Determination Board], of the accomplished
abatement; and to the owner . . . of said dangerous building.
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“presumptively constitutional” for summary judgment purposes. 3 Kinnison v. City
of San Antonio, 480 F. App’x 271, 277 (5th Cir. 2012). The Court finds the
reasoning in that case persuasive. As Kinnison noted, the Ordinance contains
several procedural safeguards. Id. Before an emergency demolition may take
place, two of three designated City officials must agree that a property presents a
“clear and imminent danger to the life, safety, or property of any person.”
San Antonio, Tex., Code of Ordinances § 6-175 (2008). Furthermore, a
determination must be made that “under the circumstances, no other abatement
procedure is reasonably available except demolition.” Id. Finally, “the Ordinance
exists against a backdrop of the City’s Residential Building Codes, which are
based on International Building Code standards.” Kinnison, 480 F. App’x at 277
(citing San Antonio, Tex., Code of Ordinances part II, ch. 6). For these reasons,
the Court agrees that the Ordinance is presumptively constitutional on its face.
Although the statutory procedure is not constitutionally deficient,
Plaintiff may still succeed on his due process claim if a state actor unreasonably
decided to deprive him of his property. See Patel v. Midland Mem. Hosp. & Med.
(b) The foregoing emergency abatement action shall be executed not later
than seventy two (72) weekday hours . . . after the official views the subject
building or structure.
San Antonio, Tex., Code of Ordinances § 6-175 (2008).
3

While the Court does not rely on unpublished opinions as the law of this Circuit,
the Court does in this case find the reasoning in this opinion persuasive.
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Ctr., 298 F.3d 333, 341 (5th Cir. 2002). As a general matter, however, a state
actor’s adherence to statutory procedures deserves deference. Freeman v. City of
Dall., 242 F.3d 642, 653 & n.18 (5th Cir. 2001) (en banc) (“[the] ultimate test of
reasonableness is fulfilled . . . by the City's adherence to its ordinances and
procedures”; “a showing of unreasonableness in the face of the City's adherence to
its ordinance is a laborious task indeed” (quotation omitted)).
Here, the City has presented appropriate evidence showing that it
complied with the procedures outlined in the Ordinance. 4 First, David Garza,
Director of Housing and Neighborhood Services (“Garza”), and Roderick Sanchez,
Director of the Development Services Department (“Sanchez”),5 both executed
affidavits declaring they had determined that the Property “presented a clear and
imminent threat to life, safety, and/or property necessitating an immediate
demolition.” (Dkt. # 69-1 at 20–21.) As required by the Ordinance, Sanchez’s
affidavit affirmed his determination that “no other abatement procedure was
reasonably available under the circumstances.” (Id. at 21.) Second, Guajardo’s
4

The City relies on the Affidavit of Alice Guajardo (Dkt. # 69-1). At the hearing,
Plaintiff argued that Guajardo lacked appropriate qualifications to recommend
demolition because she is a building inspector rather than an architect or an
engineer. However, this Court has already determined that Guajardo’s
qualifications were sufficient, finding that Guajardo was a certified building
inspector and authorized to make demolition recommendations. (Dkt. # 47 at 19.)

5

Plaintiff does not contest that Garza and Sanchez are two of the three officials
whose concurrence is contemplated by the Ordinance.
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affidavit confirms that the Dangerous Structure Determination Board was notified
of the demolition on April 28, 2008, the first regularly scheduled meeting after the
demolition took place. (Id. ¶ 18.) Third, notice of the demolition was provided to
Plaintiff on March 18, 2008. (Id. at 12.) Finally, the evidence shows that
demolition took place within 72 hours after an official last viewed the Property. 6
Guajardo made a final inspection of the property on March 13, 2008. (Id. ¶ 14.)
Garza and Sanchez executed their affidavits on March 14, 2008 and March 13,
2008, respectively. (Id. at 20–21.) The demolition took place on March 14, 2008.
(Id. ¶ 16.) The Court therefore finds that the City complied with the Ordinance.
Plaintiff, however, argues that the City’s “imminent danger”
determination may have been an abuse of discretion in light of the fact that a
substantial amount of time passed between the City’s determination and the
eventual demolition. (Dkt. # 41 ¶ 34.) Plaintiff cites Kinnison in support of this
argument. (Id.) In its opinion remanding the case to the district court, the Fifth
Circuit held that it could not render judgment for the City because the record
contained evidence suggesting that the City’s “imminent danger” determination
was an abuse of discretion. Kinnison, 480 F. App’x at 279. The property in that
case was determined to be an “imminent danger” in 2006, but was not demolished
at that time. Id. at 280. The owner made repairs in 2006, but was not given the
6

The record does not show whether Garza or Sanchez themselves inspected the
Property, but Plaintiff does not challenge this point.
15

opportunity to make further repairs in 2008 when the property was re-inspected
and subsequently demolished. Id. Furthermore, the City proceeded with
demolition even though the plaintiff’s contractor was on-site and in the midst of
repairs when the demolition crew arrived. Id. On remand, the district court
determined that the plaintiff’s Fourteenth Amendment claim should proceed to
trial. Kinnison v. City of San Antonio, No. SA–08–CV–421–XR, 2013 WL
228022, at *6 (W.D. Tex. Jan 22, 2013).
Here, Guajardo first recommended demolition of the Property
on July 30, 2007. (Dkt. # 69-1 ¶ 12.) On the same date, demolition proceedings
were abated at U.U. Housing’s request because repairs to the Property would
commence if Plaintiff’s application were approved. (Id.) Guajardo visited the
Property twice in November 2007, and attempted to contact Plaintiff regarding its
condition, but received no response. (Id. ¶ 13.) On March 13, 2008, Guajardo
inspected the Property yet again, and “found that it had deteriorated substantially
from the initial inspections. The severity of the deterioration now posed a clear
and imminent threat to the public safety.” (Id. ¶ 14.) The Property was
demolished the next day. (Id. ¶ 16.)
Although eight months passed between the date on which Guajardo
initially recommended demolition and the date on which demolition took place,
this case is distinguishable from Kinnison in several respects. First, at no time did
16

Plaintiff actually proceed with repairs to the property. Second, at the time the
Property was demolished, there was no indication that Plaintiff intended to make
repairs. Third, although Guajardo recommended demolition in July of 2007, the
“imminent danger” determination was not actually made until the day before the
demolition took place. The Ordinance requires that two of the designated officials
make the “imminent danger” determination. On March 13 and 14 of 2008,
Sanchez and Garza determined that the Property “presented a clear and imminent
threat to life, safety, and/or property necessitating an immediate demolition.”
(Dkt. # 69-1 at 20–21.) Pursuant to the Ordinance, the demolition could not have
proceeded without their concurrence. Guajardo’s recommendation in 2007 did not
guarantee that the requisite officials would have agreed with her recommendation.
As explained above, demolition took place on March 14, 2008, immediately after
Sanchez and Garza made their determinations.
Because the City complied with the Ordinance, and because there is
no evidence that the City’s “imminent danger” determination was an abuse of
discretion, the Court finds that the decision to demolish the property was
reasonable and Plaintiff suffered no due process violation as a result of the City’s
determination.

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B.

Fourth Amendment
Plaintiff’s Amended Complaint also alleges that the City subjected

him to an unreasonable search and seizure without a warrant by demolishing the
property. (Dkt. # 50 ¶ 13.3.) “The Fourth Amendment requires that any seizure of
property by the State be reasonable.” RBIII, L.P. v. City of San Antonio, 713 F.3d
840, 846 (5th Cir. 2013) (citing New Jersey v. T.L.O., 469 U.S. 325, 340 (1985)).
“[T]he Fourth Amendment reasonableness of a seizure and demolition of nuisance
property will ordinarily be established when the substantive and procedural
safeguards inherent in state and municipal property standards ordinances have been
fulfilled.” Freeman v. City of Dall., 242 F.3d 642, 654 n.17 (5th Cir. 2001) (en
banc). Because the Fourth Amendment generally requires no more than due
process of law in summary abatement cases, the outcome of a Fourth Amendment
claim depends on whether the seizure complied with due process. RBIII, 713 F.3d
840.
As the Court established in the preceding section, the City in this case
has presented sufficient evidence showing that it complied with the constitutional
safeguards in the Ordinance and did not deprive Plaintiff of his due process rights
by demolishing the Property. Thus, the Court finds that the City’s seizure of the
Property was reasonable under the Fourth Amendment, and Plaintiff suffered no
Fourth Amendment injury as a consequence of the demolition.
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C.

Fifth Amendment
Plaintiff’s Amended Complaint lastly alleges that by demolishing the

Property without notice or compensation the City deprived him of his property
without due process, amounting to a taking in violation of the Fifth Amendment.
(Dkt. # 50 ¶¶ 12.3–12.4.) A violation of the Takings Clause of the Fifth
Amendment does not occur until just compensation has been denied. Williamson
Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172,
195 (1985) (“[I]f 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.”). Therefore, plaintiffs “must use available state procedures to seek
such compensation before they may bring a § 1983 takings claim to federal court.”
John Corp. v. City of Hous., 214 F.3d 573, 581 (5th Cir. 2000). If a plaintiff fails
to do so, his takings claim will be unripe. Id. Failure to use available state
procedures may be excused if the plaintiff can show that the state procedures were
inadequate or unavailable at the time of the alleged taking. Liberty Mut. Ins. Co.
v. Brown, 380 F.3d 793, 799 (5th Cir. 2004) (citing Williamson Cnty., 473 U.S. at
196–97).
Texas law allows property owners to bring inverse condemnation
proceedings against a governmental entity that takes the owner’s property without
19

formal condemnation proceedings. 7 See Texas Const. art. 1, § 17; Patel v. City of
Everman, 179 S.W.3d 1, 7 (Tex. App.—Tyler 2004, pet. denied). “If a
municipality takes private property without following the required procedures, the
affected landowners are free to file inverse condemnation proceedings against the
municipality in state court.” Korndorffer v. City of Galveston, No. G–02–144,
2002 WL 34185626, at *6 (S.D. Tex. July 8, 2002) (citing City of Austin v.
Teague, 570 S.W.2d 389, 390 (Tex. 1978)).
Here, Plaintiff has not alleged that he has exhausted the available state
procedures to seek compensation. He simply states that he did not receive an offer
for just compensation. (Dkt. # 50 ¶ 1.2.) Nor does Plaintiff allege that the state’s
inverse condemnation procedures were inadequate or unavailable. Upon the facts
before the Court, Plaintiff’s Fifth Amendment claim is not ripe. For the foregoing
reasons, the Court finds that Plaintiff has suffered no constitutional injury at this
time.
II.

Municipal Policy or Custom
To prevail on his §1983 claim against the City, Plaintiff must also

show that any constitutional injury was the result of a municipal policy or custom.
Piotrowski, 237 F.3d at 578. Even if Plaintiff had properly supported his claims of

7

The Court notes that it previously granted summary judgment for the City on
Plaintiff’s claim under the Takings Clause found in Article I, § 17 of the Texas
Constitution. (Dkt. # 47 at 17–20.)
20

various constitutional harms, he has failed to show that his alleged injuries were
the result of a City policy or custom. Plaintiff argues that the City’s “imminentdanger determination” regarding his Property was part of the City’s “custom and
policy to haphazardly, arbitrarily, and unilaterally deem residential properties as
‘imminently dangerous’ in conscious or reckless disregard for the owners’ rights to
their property and due process of law.” (Dkt. # 50 ¶ 7.13.) Plaintiff alleges that as
a result of the City’s actions, he suffered a taking and was deprived of his due
process rights. (Id. ¶ 7.15.)
A plaintiff may prove the existence of a municipal “custom or policy”
in one of two ways. First, a plaintiff may show a pattern of unconstitutional
conduct on the part of municipal actors or employees. Zarnow, 614 F.3d 161, 169.
A pattern of conduct is necessary only where the municipal actors are not
policymakers. Id. Alternatively, a plaintiff may show that a final policymaker
took a single unconstitutional action. Id. Here, Plaintiff complains of action taken
by municipal employees who are not policymakers. Thus, only the first method of
establishing a custom is at issue.
In support of his allegation that the conduct in this case was part of a
custom fairly representing municipal policy, (Dkt. # 50 ¶ 10.3), Plaintiff claims the
City has a history of (1) summarily deeming residential properties as “imminently
dangerous” and requiring “immediate demolition,” and thereafter not demolishing
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the property; (2) slating dozens of residential properties for demolition, but
providing notice to a select few; and (3) haphazardly, informally, and arbitrarily
deeming residential properties “imminently dangerous” by wholly unqualified
persons. (Id. ¶ 10.2.) Specifically, Plaintiff alleges that between 2007 and 2011,
the City declared 41 properties were to be demolished “unless the owner repaired
the dangerous structure . . . . Of the 41 houses slated for demolition, 36 were not
put on notice by The City’s filing with the property records office of Bexar
County.” (Id. ¶¶ 7.10–7.11.) Plaintiff adds that in those four years, at least three
other lawsuits have been filed against the City for demolishing a residential
property in violation of the owners’ constitutional rights. (Id. ¶ 7.12.)
The City correctly argues that Plaintiff has the burden of not only
properly alleging other instances of unconstitutional conduct amounting to a policy
or custom, but also of providing admissible evidence of those other incidents in
order to defeat The City’s motion for summary judgment. (Dkt. # 69 ¶ 5.6.) See
Zarnow, 614 F.3d at 169 (finding plaintiff did not meet his burden of proving a
municipal custom on summary judgment where he alleged that many
unconstitutional searches similar to the one he suffered had taken place, but offered
no evidence in support of his allegations). Here, Plaintiff failed to file a timely
response, and has not produced any evidence supporting the allegations in his
Amended Complaint. These unsubstantiated allegations are insufficient to defeat a
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motion for summary judgment. See Brown, 337 F.3d at 541. Because he has
failed to prove that he suffered a constitutional injury that was the result of a
municipal policy or custom, Plaintiff cannot succeed on his § 1983 claim against
the City.
CONCLUSION
For the reasons stated above, the Court hereby GRANTS The City’s
Motion for Summary Judgment. (Dkt. # 69.)
IT IS SO ORDERED.
DATED: San Antonio, Texas, December 23, 2014.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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