United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER ON MOTIONS TO DISMISS
AND FOR SUMMARY JUDGMENT
Lawrence L. Piersol United States District Judge
in this section 1983 action are a husband and wife who
challenge the actions of their township's board of
supervisors on multiple state and constitutional grounds.
Currently pending before the Court are Defendants'
motions to dismiss and for summary judgment. For the
following reasons, the motions will be granted in part and
denied in part.
the claims in this case arise out of repairs that were made
on 219th Street, a township road that crosses Rock Creek near
the intersection of 428th Avenue in Mathews Township. Rock
Creek runs across a corner of the Lees' property though a
natural waterway before it meets 219th Street. In the
1980's a bridge crossing Rock Creek on 219th Street was
replaced with an 8-foot culvert. A 3-foot culvert was added
culverts washed out in the 2011 floods. The Township applied
for and was awarded FEMA funds to repair the washout.
Meetings were held. There was discussion about installing
9-foot culverts, 8-foot culverts, and of restoring the road
to the way it was before with an 8-foot culvert and a 3-foot
culvert. The public was excluded from some of the meetings,
and one meeting was adjourned. Mary Lee was the elected
Township Clerk during this time period. She also was excluded
from meetings when the general public was excluded. The
Township eventually chose to install an 8-foot culvert and
later a 3-foot culvert. The cost of the entire project was
covered by FEMA funds.
and Mary Lee (the Lees) own land next to the roadway where
the repairs were made. They agreed to allow the contractor to
use dirt and rocks from their property for the construction
project because they believed at least one 9-foot culvert
would be installed. The Lees contend that the Township
unlawfully accepted the federal funds to simply install the
same inadequate drainage structure at a lower cost and
planned to use the remaining funds for repairs on other
roads. The Lees allege that when they raised concerns about
this plan, Defendants retaliated against them by withholding
information and violating their constitutional rights.
flooding has occurred on the Lees' land since the repairs
were made, so they are not claiming any damages for flooding
that has occurred, but they are claiming damages for future
flooding that might occur.
their complaint, the Lees assert the following claims against
the defendants Mathews Township and the members of the
Township Board of Supervisors (Defendants) for alleged
violations of their federal constitutional rights: (1) the
right to due process (count 1); (2) the right to equal
protection of the laws (count 2); (3) first amendment free
speech, retaliation and associational rights (count 3); and
(4) taking without just compensation under the Fifth
Amendment (count 4). The Lees also assert a taking without
just compensation under the South Dakota Constitution (count
5), conversion (count 6), and deceit (count 7). In count 8 of
the Complaint, the Lees seek declaratory and injunctive
relief to end the alleged violations of their constitutional
rights and to prevent future infringement of those rights.
They also appear to ask the court to order the Township to
provide better drainage at 219th Street.
assert that the Lees lack Article III standing to pursue
their claims for damages that they would incur if flooding
occurs in the future. They also argue that the Lees'
claims for future damages are not ripe. With respect to
count 4 alleging a Fifth Amendment Takings claim, Defendants
contend that the Lees failed to seek compensation through
available state remedies, and thus that claim is not ripe.
Defendants move for dismissal of the Lees' Takings claims
and their claim for future flooding damages based on lack of
subject matter jurisdiction pursuant to Rule 12(b)(1).
addition, Defendants move for summary judgment as to all
other counts in the Lees' complaint pursuant to Rule
56(c), arguing that there are no genuine issues of material
STANDARD FOR SUMMARY JUDGMENT
of the Federal Rules of Civil Procedure provides that summary
judgment shall be granted "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). In ruling on a motion for summary
judgment, the Court is required to view the facts in the
light most favorable to the non-moving party and must give
that party the benefit of all reasonable inferences to be
drawn from the underlying facts. AgriStor Leasing v.
Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving
party bears the burden of showing both the absence of a
genuine issue of material fact and its entitlement to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). Once
the moving party has met its burden, the non-moving party may
not rest on the allegations of its pleadings but must set
forth specific facts, by affidavit or other evidence, showing
that a genuine issue of material fact exists. Fed.R.Civ.P.
56(c); Anderson, 477 U.S. at 257; City of Mt.
Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268,
273-74 (8th Cir. 1988). All facts presented to the district
court by the non-moving party are accepted as true if
properly supported by the record. See Beck v. Skon,
253 F.3d 330, 332-33 (8th Cir. 2001).
addressing the motion for summary judgment, the Court will
address Defendants' argument that the Lees' future
damages claim is not ripe and that they lack standing to
raise it. The Eighth Circuit has explained a court's duty
to determine whether a case is justiciable:
"Federal courts are not courts of general jurisdiction;
they have only the power that is authorized by Article III of
the Constitution and the statutes enacted by Congress
pursuant thereto." Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501
(1986). "The limitations imposed by Article III are
usually referred to as the 'case or controversy'
requirement." Schanou v. Lancaster County Sch. Dist.
No. 160, 62 F.3d 1040, 1042 (8th Cir. 1995) (quoting
Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1435 (8th
Cir. 1993) (en banc)); see also Valley Forge Christian
College v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70
L.Ed.2d 700 (1982) ("Article III of the Constitution
limits the 'judicial power' of the United States to
the resolution of 'cases' and
'controversies.'"). This court defines
"case or controversy" to require "a definite
and concrete controversy involving adverse legal interests at
every stage in the litigation." McFarlin v. Newport
Special Sch. Dist., 980 F.2d 1208, 1210 (8th Cir. 1992).
"Federal courts must always satisfy themselves that this
requirement has been met before reaching the merits of a
Gray v. City of Valley Park, Mo., 567 F.3d 976,
982-83 (8th Cir. 2009). The Eighth Circuit also explained
that "[c]ourts employ a number of doctrines to determine
judiciability such as standing, ripeness, and mootness."
Id. at 983.
and ripeness are sometimes closely related. In assessing
ripeness, we focus on whether the case involves
'contingent future events that may not occur as
anticipated, or indeed may not occur at all.'"
Missouri Roundtable for Life v. Carnahan, 676 F.3d
665, 674 (8th Cir. 2012) (quoting 281 Care Committee v.
Arneson, 638 F.3d 621, 631 (8th Cir. 2011). One crucial
difference between ripeness and standing is that "the
standing inquiry remains focused on whether the party
invoking jurisdiction had the requisite stake in the outcome
when the suit was filed." Davis v. Fed. Election
Comm 'n, 554 U.S. 724, 734 (2008) (citations
omitted). While standing "asks whether these persons are
the proper parties to bring the suit, "
ripeness "asks whether this is the correct time
for the complainant to bring the action." See
Wilderness Soc. v. Alcock, 83 F.3d 386, 390 (11th Cir.
1996)(emphasis in original).
issue whether this court has subject matter jurisdiction over
the Lees' claim for future flooding damages is one of
ripeness rather than standing. For the following reasons, the
future damages claim is not ripe for review.
Eighth Circuit has stated the basic rationale behind the
ripeness doctrine '"is to prevent the courts,
through avoidance of premature adjudication, from entangling
themselves in abstract disagreements.'" Pub.
Water Supply Dist. No. 10 v. City of Peculiar, Mo., 345
F.3d 570, 572-73 (8th Cir. 2003) (quoting Abbott Labs. v.
Gardner, 387 U.S. 136, 148(1967)). "The ripeness
inquiry requires examination of both fitness of the issues
for judicial decision and the hardship to the parties of
withholding court consideration." Parrish v.
Dayton, 761 F.3d 873, 875 (8th Cir. 2014) (quoting
Nebraska Pub. Power Dist. v. MidAmerican Energy Co.,
234 F.3d 1032, 1038 (8th Cir. 2000)) (internal quotations
omitted). "The fitness prong 'safeguards against
judicial review of hypothetical or speculative
disagreements.'" Id. (quoting
MidAmerican Energy, 234 F.3d at 1038). The hardship
inquiry focuses on "whether delayed review 'inflicts
significant practical harm' on the plaintiffs."
Id. (quoting Ohio Forestry Ass 'n, Inc. v.
Sierra Club, 523 U.S. 726, 733 (1998)). A claim is
unripe '"if it rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at
all."' Id.. at 875-76 (quoting Texas v.
United States, 523 U.S. 296, 300 (1998)) (internal
citations omitted). It is sufficient for ripeness purposes,
however, that injury is "certainly impending."
Id. at 876 (quoting Babbitt v. United Farm
Workers Nat'l Union, 442 U.S. 289, 298 (1979))
(internal quotations and citations omitted).
Lees' damage claim for future flooding is contingent on
future possibilities, i.e., that future flooding
will occur and that their property will be damaged. The claim
is not fit for review at this time. With respect to the
hardship prong, no argument is presented that withholding
judicial review would '"inflict[ ] serious practical
harm' on the plaintiffs." Parrish, 761 F.3d
at 875 (quoting Ohio Forestry, 523 U.S. at 733). The
Eighth Circuit has explained, " '[t]he touchstone of
a ripeness inquiry is whether the harm asserted has
'matured enough to warrant judicial
intervention.'" Id. (quoting Paraquad,
Inc. v. St. Louis Hous. Auth., 259 F.3d 956, 958 (8th
Cir. 2001)). The burden is on the Lees to establish this
court's subject matter jurisdiction over their request
for relief, and the Lees shoulder the burden to meet each of
the two ripeness requirements. The uncertainties attendant
with their claim for future damages shows it is not fit for
review. Additionally, the Lees have not demonstrated a
hardship they would suffer if adjudication is withheld on the
issue of possible future damages. Therefore, Defendants'
motion to dismiss for lack of subject matter jurisdiction
will be granted without prejudice on the Lees' claim for
future flooding damages.
The Lees' Monell Claim Against Mathews
the Court must decide whether the Lees have stated a claim
against Mathews Township. The Supreme Court has explained:
A municipality or other local government maybe liable under
this section [42 U.S.C. § 1983] if the governmental body
itself "subjects" a person to a deprivation of
rights or "causes" a person "to be
subjected" to such deprivation. See Monell v. New
York City Dept. of Social Servs., 436 U.S. 658, 692, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978). But, under § 1983,
local governments are responsible only for "their own
illegal acts." Pembaur v. Cincinnati, 475 U.S.
469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (citing
Monell, 436 U.S., at 665-683, 98 S.Ct. 2018). They
are not vicariously liable under § 1983 for their
employees' actions. See id., at 691, 98 S.Ct.
2018; Canton, 489 U.S., at 392, 109 S.Ct. 1197;
Board of Comm 'rs of Bryan Cty. v. Brown, 520
U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)
Connick v. Thompson, 563 U.S. 51, 60 (2011).
"Plaintiffs who seek to impose liability on local
governments under § 1983 must prove that 'action
pursuant to official municipal policy' caused their
injury." Id. (citing Monell, 436 U.S.
at 691). "Official municipal policy includes the
decisions of a government's lawmakers, the acts of its
policymaking officials, and practices so persistent and
widespread as to practically have the force of law."
Id. A plaintiff "must also show that the policy
was unconstitutional and that it was 'the moving
force' behind the harm that he suffered."
Jenkins v. County of Hennepin, 557 F.3d 628, 633
(8th Cir. 2009).
municipality may also be liable under § 1983 where the
harm was caused by an official unconstitutional custom of the
defendant. See Doe ex rel. Doe v. School Dist. of City of
Norfolk, 340 F.3d 605, 614 (8th Cir. 2003). "In
contrast to the evidence required to establish an official
policy, [the Eighth Circuit has] emphasized that a custom can
be shown only by adducing evidence of a 'continuing,
widespread, persistent pattern of unconstitutional
misconduct.' "Jenkins, 557 F.3d at 634
(quoting Mettler v. Whitledge, 165 F.3d 1197, 1204)
(8th Cir. 1999)). "'[Liability may be established
through proof that the alleged misconduct was so pervasive
among the non-policy making employees of the municipality as
to constitute a "custom or usage" with the force of
law, '" and therefore liability '"cannot
arise from a single act.'" Crawford v. Van Buren
County, 678 F.3d 666, 669 (8th Cir. 2012) (quoting
McGautha v. Jackson County, Mo., Collections Dep
't, 36 F.3d 53, 56-57 (8th Cir. 1994)).
the record at the summary judgment stage after discovery was
completed by the parties, the Court was unable to find
evidence from which a jury could reasonably find the
existence of a relevant unconstitutional township policy or
custom or that such a policy or custom was a moving force
behind the Lees' alleged constitutional violations.
During oral argument on the summary judgment motion at the
pretrial hearing on June 13, 2016, the Court asked the
Lees' lawyer what evidence supports the Monell
claim against Mathews Township. He responded that it is the
custom and practice of the township to make decisions without
the vote of the board, sometimes without input from all board
members, and without input from the public at open meetings.
There is evidence to support this allegation in regard to the
decision-making for the 219th Street repairs, but
evidence is lacking that it is a practice so permanent or
widespread as to have the force of law such that Mathews
Township is liable for any injuries the Lees may have
suffered. The Lees' failure to point to specific evidence
in the record that the conduct complained of resulted from an
unconstitutional policy or custom requires the Court to grant
summary judgment in favor of Mathews Township. The lack of
evidence is also fatal to the official-capacity claims
against the individual defendants, and summary judgment will
be granted in favor of Defendants in their official
capacities. Bankhead v. Knickrehm, 360 F.3d 839, 844
(8th Cir. 2004) ("Suits against public employees in
their official capacity are the legal equivalent of suits
against the governmental entity itself").
argue that the township supervisors are entitled to qualified
immunity. Qualified immunity is a defense against claims in
one's individual capacity. Bankhead, 360 F.3d at
844. "Qualified immunity shields government officials
from liability and the burdens of litigation ... unless the
official's conduct violates a clearly established
constitutional or statutory right of which a reasonable
person would have known." Saterdalen v.
Spencer, 725 F.3d 838, 841 (8th Cir. 2013). Thus,
determining whether qualified immunity applies involves
consideration of two questions: (1) whether the facts alleged
constitute a violation of a constitutional or statutory
right; and (2) whether that right was "clearly
established" at the time of the alleged violation.
LaCross v. City of Duluth, 713 F .3d 1155, 1157-58
(8th Cir. 2013) (citing Saucier v. Katz, 533 U.S.
194, 201 (2001)). "Unless the answer to both of these
questions is yes, the defendants are entitled to qualified
immunity." Krout v. Goemmer, 583 F.3d 557, 564
(8th Cir. 2009).
The Lees' Due Process Claims (Count 1)
Court first takes up Defendants' claims that they are
entitled to qualified immunity on the Lees' Due Process
claims. The Fourteenth Amendment states: "No State
shall... deprive any person of life, liberty, or property,
without due process of law." U.S. Const, amend. XIV. The
Due Process Clause encompasses two distinct forms of
protection: (1) procedural due process, which requires a
state to employ fair procedures when depriving a person of a
protected interest; and (2) substantive due process, which
guarantees that a state cannot deprive a person of a
protected interest arbitrarily and oppressively in a manner
that "shocks the conscience." See, e.g.,
Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-47
(1998). Under either form of protection, a person must have a
protected interest in either life, liberty, or property. The
Eighth Circuit has explained:
The Due Process Clause of the Fourteenth Amendment prohibits
state governments from depriving "any person of life,
liberty, or property, without due process of law...."
This clause has two components: the procedural due process
and the substantive due process components. "Analysis of
either a procedural or substantive due process claim must
begin with an examination of the interest allegedly violated,
" and "[t]he possession of a protected life,
liberty, or property interest is ... a condition
precedent" to any due process claim. "[W]here no
such interest exists, there can be no due process
violation." Merely labeling a governmental action as
arbitrary and capricious, in the absence of the deprivation
of life, liberty, or property, will not support a substantive
due process claim.
Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir.
1999). Therefore, to assert a procedural due process claim, a
plaintiff must initially demonstrate that she was deprived of
some "life, liberty, or property interest" arising
under state law and, if successful, the plaintiff must then
establish that she was deprived of that property interest
without sufficient process. Krentz v. Robertson, 228
F.3d 897, 903 (8th Cir. 2000). The property right at issue in
a procedural due process claim must have been created by an
independent source such as state law rather than by the
Constitution. Keating v. Nebraska Public Power Dist,
660 F.3d 1014, 1017 (8th Cir. 2011). Although the property
right must derive from state law, the amount of process due
is judged by reference to the federal Constitution rather
than by any reference to state law. Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 541(1985). In
other words, the Lees must prove a protected property right
by reference to state law, but the amount of process that
they must be accorded is judged by federal law rather than
Lees assert that they have a property interest in adequate
drainage of their land, and that they had a right to attend
all of the meetings where the methods of repairing the
culvert on 219th Street were discussed. Here is
how they explain this argument ...