Littlejohn v. Elliot et al

Filing 54

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on September 13, 2017. (sfc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA

09/13/2017

LYNCHBURG DIVISION
CURTIS CRAIG LITTLEJOHN,
Plaintiff,
v.

CASE NO. 6:17-cv-00029

MEMORANDUM OPINION

CITY OF LYNCHBURG, VIRGINIA, ET AL.,

JUDGE NORMAN K. MOON

Defendants.
This case is before the Court on Defendants’ motion to dismiss or, alternatively, for
summary judgment. (Dkt. 37). Plaintiff, an incarcerated individual proceeding pro se, initiated
this case seeking a temporary restraining order (“TRO”) forbidding the consummation of the
alleged tax sale of his home. (Dkts. 1, 2). Construing the Complaint liberally, the Court
understood it to allege that Defendants were selling Plaintiff’s home and personal effects without
notice, in violation of the Due Process Clause. Accordingly, on May 3, 2017, the Court granted
an ex parte TRO. (Dkt. 15). Defendants entered an appearance the same day, and subsequently
expressed a “willing[ness] to agree not to close on the sale of the subject real estate pending
negotiations” with Plaintiff. (Dkt. 18). The Court accordingly extended their time to respond to
the Complaint while also extending the TRO until further ordered. (Dkt. 21).
Settlement negotiations apparently failed, giving rise to Defendants’ instant motion. The
Court analyzes the motion as one seeking summary judgment, as Defendants recognize they
present matters outside the pleadings. (Dkt. 38 at 1). The motion is now ripe after the Court
issued a Roseboro notice to Plaintiff, who submitted a response. (Dkts. 39, 43).
Summary judgment is proper “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.
56(a). “Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). If the evidence of a genuine issue of material fact “is merely
colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477
U.S. at 250. In considering a motion for summary judgment, a court must view the record as a
whole and draw all reasonable inferences in the light most favorable to the nonmoving party.
See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322–24 (1986); Shaw v. Stroud, 13 F.3d 791,
798 (4th Cir. 1994).
The undisputed facts are established by the declaration of Defendant James W. Elliot and
the exhibits attached thereto. (Dkt. 38-1).1 Elliot is an attorney who represents Defendant City
of Lynchburg (“City”) in delinquent real estate tax matters and tax sale litigation. After the City
gave Elliot notice of delinquent taxes on the property at issue (1221 Garfield Avenue,
Lynchburg, Virginia 24501), Elliot mailed notices of delinquency to the owners, Plaintiff and his
wife, Nakia L. Littlejohn. (Dkt. 38-1 at ECF 4). The Littlejohns’ address, as reflected in the
City’s records, was listed as the same as the street address for the subject property, and Elliot
relied on that listing when sending the notices. (Id. at ECF 5). The notices demanded payment

1

Plaintiff also listed as a defendant an individual named “Thomas Elliot.” Initially,
Plaintiff did not provide an address for this person. (Dkt. 7). In response to an order that
Plaintiff provide an address for “Thomas Elliot,” Plaintiff’s wife (and co-owner of the real
property at issue) contacted the Court to notify it that, at the time, Plaintiff could not respond to
the Court’s order because he was on “lockdown.” (Dkt. 13). She further stated that “Thomas
Elliot” could be served at the same address as James Elliot. (Id.). The Court thus ordered the
U.S. Marshal to attempt service on Thomas Elliot, but that attempt failed. (Dkt. 31 at ECF 1).
Accordingly, the claims against one “Thomas Elliot,” assuming he exists, will be dismissed
without prejudice for failure to timely accomplish service. The Court refers to Defendant James
Elliot exclusively as “Elliot” in this opinion.
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of the outstanding taxes “no later than June 30, 2016 in order to avoid legal action.” (Id. at ECF
4).
Elliot then waited the statutorily prescribed period and, after receiving no reply from the
Littlejohns, filed a civil complaint in the Lynchburg City Circuit Court on December 28, 2016
against the Littlejohns, seeking tax sale of the property. (Dkt. 38-1 at ECF 6–16). The United
States of America appeared on January 31, 2017 to file a notice of disclaimer of its interest in the
property. (Id. at 17–18). That same day, the City’s Department of Billing and Collections
informed Elliot that the outstanding taxes on the property were $6,395.21. (Id. at 19). The
Littlejohns were served by posting at the subject property’s address, but they did not respond to
the lawsuit. See Va. Code Ann. § 8.01-296(2)(b); dkt. 38-1 at ECF 2 ¶¶ 6, 8.
Accordingly, on February 7, 2017, Elliot obtained a default judgment in the City’s favor
from the Lynchburg City Circuit Court. (Dkt. 38-1 at ECF 2, 20–21). In accordance with the
judgment, Elliot advertised the property for sale at a public auction, which took place on March
20, 2017. (Id. at 2). However, before obtaining approval of the sale from the Lynchburg City
Circuit Court and delivering the deed, Elliot received notice of this lawsuit. (Id.) The sale was
therefore not finalized. Elliot maintains that, until he saw Plaintiff’s lawsuit, he did not know the
Littlejohns did not reside at the property. (Id.).
In light of Plaintiff’s representations in his Complaint that the Litttlejohns did not receive
actual notice of the sale, Elliot sought and received for the City a nonsuit dismissing the tax sale
case from the Lynchburg City Circuit Court. (Dkt. 38-1 at ECF 2–3, 22). He refunded the
purchase price to the highest bidder at the auction. (Id. at ECF 3). Additionally, Elliot “never
had a key to the house located on the property, and never gave a key to the higher bidder or

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anyone else,” nor did he or the City’s representatives give permission for anyone to enter the
house or remove the personal property inside. (Id.).
Based on these facts, Plaintiff’s claims fail. His claim for prospective relief (and the
continuation of the TRO) forbidding the sale of his house must be dismissed because the tax sale
case in state court has been nonsuited and the sale has been cancelled. Additionally, Plaintiff
cannot establish a likelihood of success on his procedural due process claim, which requires
proof of (1) a protected property interest (2) deprived by state action (3) without constitutionally
adequate procedures. Sansotta v. Town of Nags Head, 724 F.3d 533, 540 (4th Cir. 2013). The
last two elements are absent, and thus neither injunctive relief nor damages are proper.
First, Defendants have not deprived Plaintiff of his property, nor is there currently any
action pending seeking to do so. Sansotta, 724 F.3d at 540 (finding plaintiffs due process claim
failed because municipality “never deprived them” of their interests). Second, Elliot followed
constitutionally adequate procedures in abiding by Virginia law on tax sales. Specifically, he
sent a notice to the Littlejohns’ last known address (in good faith reliance on the City’s records,
the accuracy of which he had no reason to doubt) and waited the statutorily mandated 30-day
period before instituting a tax sale case against them. Va. Code § 58.1-3965; dkt. 38-1 at ECF 1,
4–5; see Sansotta, 724 F.3d at 541 (finding “legitimate government actions intended simply to
enforce” ordinances did not violate due process; noting that municipal officials’ actions are
evaluated “based on the circumstances at the time the government acted” and are entitled to a
presumption of good faith). And he instituted a proper tax sale lawsuit in state court, again
effecting service at what he believed to be the Littlejohns’ last known address.2 “Due process

2

Plaintiff responds that the “City of Lynchburg Court” knew he was incarcerated,
attaching a letter from the state circuit court judge in an unrelated case (when the judge sat on the
general district court) acknowledging that fact. (Dkt. 43-1). But the Defendants here are Elliot
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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).3
A damages claim pertaining to Plaintiff’s house fails for similar reasons. Because the
house was not sold, there has been no deprivation. And because Defendants made reasonable
attempts to provide notice and had no reason to doubt the success of their efforts, there was not
constitutionally deficient process.
Lastly, Plaintiff contends Defendants are responsible for depriving him of his personal
property, which he asserts was taken from the home, placed on the street curb, and then stolen.
(Dkt. 43 at ECF 1).

Taking Plaintiff’s statements as true, he nonetheless has failed to

demonstrate that the deprivation is attributable to “state action,” i.e., the Defendants. Elliot
denies having any knowledge of personal property being removed from the home, possessing a
key to the home, or granting anyone authority to enter the home. (Dkt. 38-1 at ECF 3).
In response, Plaintiff writes in his affidavit that “the person who brought [sic] the house
. . . states James Elliot gave him permission to” enter it and place the property curbside. (Dkt.
43 at ECF 1). Unfortunately for Plaintiff, this statement by the unnamed would-be purchaser is
and the City, not the state court or its judicial officers. The judge’s knowledge from a prior case
while sitting on a different court is not imputable to the Defendants.
3

The touchstone inquiry is whether notice was “reasonably calculated” under the
circumstances to apprise the owner of the pending action and give him an opportunity to be
heard. Id. at 226. So when the government has reason to believe that actual notice was not
received, it must take “additional reasonable steps to attempt to provide notice,” if practicable.
Id. at 225 (holding such after mailed notice of tax sale was returned unclaimed). But there is no
evidence here that Defendants knew or had reason to suspect their efforts to provide notice were
ineffectual. For instance, nothing in the record indicates the delinquency notices were returned
to Defendants, or that Defendants knew Plaintiff was incarcerated. See id. at 230 (identifying
precedent holding that “notice of forfeiture proceedings sent to a vehicle owner’s home address
was inadequate when the State knew that the property owner was in prison”); Snider Int’l Corp.
v. Town of Forest Heights, Md., 739 F.3d 140, 147 (4th Cir. 2014); Plemons v. Gale, 396 F.3d
569, 573 (4th Cir. 2005) (observing that notice is not sufficient if sender knows it failed to
inform recipient).
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hearsay excluded from consideration on summary judgment, and thus it cannot be used to create
a genuine issue of material fact. Fed. R. Civ. P. 56(c); Evans v. Techs. Applications & Serv. Co.,
80 F.3d 954, 962 (4th Cir. 1996) (“[S]ummary judgment affidavits cannot be . . . based upon
hearsay”); Sakaria v. Trans World Airlines, 8 F.3d 164, 171 (4th Cir. 1993); Md. Highways
Contractors Ass’n, Inc. v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991).
For these reasons, Defendants’ motion for summary judgment will be granted, the TRO
will be dissolved, and this case will be dismissed with prejudice. An appropriate order will
issue.
The Clerk is requested to send a copy of this opinion and the accompanying order to
counsel of record and to Plaintiff at his address on file.
13th
Entered this ____ day of September, 2017.

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