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Lee v. Driscoll

United States District Court, D. South Dakota, Southern Division

July 13, 2016

ROGER and MARY LEE, Plaintiffs,


          Lawrence L. Piersol United States District Judge

         Plaintiffs 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.


         All of 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 in 2010.

         Both 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.

         Roger 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.

         No 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.

         In 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.

         Defendants 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.[1] 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).

         In 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 fact.


         Rule 56 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).


         I. Ripeness

         Before 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 case...."

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.

         "Standing 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).

         The 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.

         The 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).

         The 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.[2]

         II. The Lees' Monell Claim Against Mathews Township

         Next, 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) (collecting cases).

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).

         A 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)).

         Reviewing 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").

         III. Qualified Immunity

         Defendants 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).

         A. The Lees' Due Process Claims (Count 1)

         The 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 state law.

         The 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 ...

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