Brown v. Fifth Louisiana Levee District et al

MOTION to Dismiss For Failure to State a Claim Complaint

W.D. La.October 11, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION RICKY L. BROWN CASE NO. 3:12-CV-00289-RGJ-JPM VERSUS JUDGE JAMES FIFTH LOUISIANA LEVEE DISTRICT MAGISTRATE JUDGE HAYES TENSAS PARISH, ET AL DEFENDANT’S MOTION TO DISMISS NOW INTO COURT, through undersigned counsel, comes Reynold Minsky, James Shivers and the Fifth Louisiana Levee District (collectively “Levee District”), Defendants herein, who move to dismiss the Complaint, as amended, under Rules 12(b)(1), and 12(b)(6), as not being ripe for litigation, for failing to state a claim for regulatory taking under the Fifth Amendment, and because the Plaintiff lacks standing to assert any claim against the Levee District, all for reasons set forth in the Memorandum in Support hereof. Respectfully submitted, __s/ John D. Crigler, Jr. _____________ JAMES E. PAXTON- Bar Roll #19094 JOHN D. CRIGLER, Jr.-Bar Roll #31118 BISHOP PAXTON CRIGLER & MOBERLEY 124 Hancock Street St. Joseph, LA 71366 Phone: (318) 766-4892 Facsimile: (318) 766- 3945 Email: Jim@bpcmlaw.com Counsel for Defendant, Levee District Case 3:12-cv-00289-RGJ-JPM Document 94 Filed 10/11/16 Page 1 of 2 PageID #: 444 CERTIFICATE OF SERVICE I hereby certify that on the 11th day of October, 2016, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that I have mailed the foregoing document by first-class mail (postage pre-paid) or forwarded it by facsimile to all known or non-CM/ECF participants. _s/ John D. Crigler, Jr. _______________ Case 3:12-cv-00289-RGJ-JPM Document 94 Filed 10/11/16 Page 2 of 2 PageID #: 445 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION RICKY L. BROWN CASE NO. 3:12-CV-00289-RGJ-JPM VERSUS JUDGE JAMES FIFTH LOUISIANA LEVEE DISTRICT MAGISTRATE JUDGE HAYES TENSAS PARISH, ET AL MEMORANDUM IN SUPPORT OF LEVEE DISTRICT’S MOTION TO DISMISS MAY IT PLEASE THE COURT: Plaintiff has filed this suit against Reynold Minsky, James Shivers and the Fifth Louisiana Levee District (collectively “Levee District”), over his alleged inability to obtain a permit to develop a residential neighborhood on a 32 acre tract of land lying between the Mississippi River Mainline Levee and Lake Bruin in Tensas Parish, Louisiana. Plaintiff asserts Federal Question jurisdiction (Fifth Amendment takings) undder 28 U.S.C. § 1331, Diversity Jurisdiction under 28 U.S.C. § 1332, and Civil Rights jurisdiction under 28 U.S.C. § 1343(a)(3). Plaintiff is asserting claims for a regulatory taking under the Fifth Amendment of the United States Constitution, claims for the violation of his equal protection rights, and claims for a regulatory taking under Louisiana law. Plaintiff has prayed for compensatory and punitive damages of no less than $1,000,000.00, injunctive relief prohibiting alleged violations of Federal and/or State law, a declaration that his rights have been violated by the Defendant, and costs, expenses and attorney’s fees. Case 3:12-cv-00289-RGJ-JPM Document 94-1 Filed 10/11/16 Page 1 of 7 PageID #: 446 LAW AND ARGUMENT A. Diversity of Citizenship Jurisdiction Plaintiff alleges in his Complaint, and amendment thereto, that this Court possesses subject matter jurisdiction in this case pursuant to 28 U.S.C. § 1332. Jurisdiction based on 28 U.S.C. § 1332 requires complte diversity, meaning all plaintiffs must be citizens of different states from all defendants. Harvey v. Grey Wolf Drilling Co., 542 F. 3d 1077 (5 Cir. 2008). A cursory examination of the pleadings shows that complete diversity does not exist in this case and that this Court cannot exercise subject matter jurisdiction pursuant to 28 U.S.C. § 1332. The Levee District is not a citizen for purposes of diversity jurisdiction and even if the Levee District were considered a citizen, the Levee District and the Plaintiff would both be citizens of Louisiana, such that there can be no argument that complete diversity exists in this case. B. Subject Matter Jurisdiction- Ripeness This Court may not exercise Federal Question jurisdiction pursuant to 28 U.S.C. § 1331 or Civil Rights jurisdiction under 28 U.S.C. § 1343(a)(3), because the Plaintiff’s takings claim is not yet ripe for adjudication. Ripeness is a question of law regarding the Court’s subject matter jurisdiction. In Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed. 2d 126 (1985), the Court adopted a two-prong test for ripeness with regard to a takings claim. First, a claim is not ripe until the relevant governmental unit has reached a final decision as to how the regulation will be applied to the landowner. Second, a claim is still not ripe until the plaintiff has sought compensation for the alleged taking through whatever adequate procedures the State Provides. See, Urban Developers, LLC v. City of Jackson, Miss., 468 F.3d 281, 292-293 (2006). Case 3:12-cv-00289-RGJ-JPM Document 94-1 Filed 10/11/16 Page 2 of 7 PageID #: 447 The Complaint does not contain any allegation that the Plaintiff has sought compensation under procedures established by the State of Louisiana, or that the State of Louisiana does not provide the plaintiff with an avenue for redress. The plaintiff alleges that there has been a “misunderstanding” between the plaintiff and the defendant as to the plaintiff’s intentions. (Doc. 50, par 5.) Plaintiff also attached Stipulated Judgments form the State Court injunction proceedings dated January 7, 2010 (Doc. 1, Ex. E) and January 11, 2011 (Doc. 1, Ex. F), each of which purports to grant the Plaintiff a permit, with restrictions. The plaintiff has failed to make any allegations showing that he can satisfy the second prong of the Williamson County test for ripeness. Plaintiff has not alleged that there are no state proceedings allowing for inverse condemnation claims. Plaintiff could not reasonably make such an allegation because Louisana does recognize clims for inverse condemnation. Avenal v. State, 2003-3521 (La. 10/19/2004; 886 So.2d 1085, 1104-1105 (“The action for inverse condemnation is available in all cases where there has been a taking or damaging of property where just compensation has not been paid, without regard to whether the property is corporeal or incorporeal.”) Plaintiff has also failed to allege that he has sought just compensation and has been denied. As the Fifth Circuit noted in Urban Developers, Plaintiff must seek compensation “through whatever adequate procedures the state provides before seeking to interpose the federal courts, through section 1983, between a state and its citizen.” 468 F.3d at 294. The Plaintiff’s claim is not ripe for adjudication because the Plaintiff has not sought compensation under the procedures established by the State of Louisiana and the Plaintiff has not exhausted all avenues of redress under adequate state law. Case 3:12-cv-00289-RGJ-JPM Document 94-1 Filed 10/11/16 Page 3 of 7 PageID #: 448 B. Plaintiff lacks standing to assert any claim for damages against the Levee District In order for the Plaintiff to challenge the action of the Levee District, the plaintiff must prove final agency action occurred, because the [Administrative Procedures Act, 5 U.S.C. § 706 et seq. (“APA”)] authorizes judicial review only of ‘final agency action for which there is not other adequate remedy in a court.’ In Bennett v. Spear, 520 U. S. 154, 117 S. Ct. 1154, 137 L. Ed. 2d 281 (1997), we distilled from our precedents two conditions that generally must be satisfied for agency action to be “final” under the APA. “First, the action must mark the consummation of the agency’s decision making process — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Id., at 177-178, 117 S. Ct. 1154, 137 L. Ed. 2d 281 In this case, the Levee District has not completed any action that would qualify as “final” under the APA. The Plaintiff’s Complaint does not allege that the Plaintiff has been denied a permit or that the Plaintiff does not have any opportunity for state court review. Instead, the Plaintiff’s Complaint judicially confesses that there has been misunderstandings as to the Plaintiff’s intentions as it relates to the installation of water lines, sewer lines, utility lines, sewer tanks,; and/or treatment facilities in relation to the Mainline Levee Right-of-Way. (Doc. 50, page 5) Plaintiff’s Complaint confesses that in order to preserve the structural integrity of the Mississippi River Mainline Levee, the Plaintiff understood that no work was allowed to be completed without first securing permits from the Levee District, and that Plaintiff’s property is primarily composed of riparian land which abuts the right of way of the Mississippi River Mainline Levee and an area used for Bondrant fill. (Doc 1. page 3) Plaintiff’s Complaint cites to two separate State Court judgments arising out of the same facts and directly addressing the parties’ rights and obligations Case 3:12-cv-00289-RGJ-JPM Document 94-1 Filed 10/11/16 Page 4 of 7 PageID #: 449 concerning the permitting process. The Complaint also has several letters attached, which clearly show that the permitting process was still ongoing. It is abundantly clear from the Plaintiff’s Complaint that any correspondence between the Levee District and the Plaintiff was not a “final agency action”, but was an action interlocutory in nature, in which the Levee District sought additional information without which it could not ever arrive at a final decision. The Levee District’s “failure to act” did not constitute “final agency action.” The Levee District never declined to consider or permanently rejected the Plaintiff’s application. Rather, the Levee District made clear to the Plaintiff that additional information would be needed prior to reaching a decision. It is important to note that the Levee District has never been provided the information it requested. On June 29, 2016, the Plaintiff appeared at the Levee District’s office and filled out a permit request seeking to install 2,500 feet of water line within 1,500 feet of the toe of the levee. Prior to receiving any decision on his permit request and sometime prior to July 12, 2016, the Plaintiff dug a trench and installed a waterline, which in some places is within fifty (50) feet of the toe of the Mainline Mississippi River Levee. Plaintiff acted with reckless disregard for the structural security of the levee or for the safety of the residents of Louisiana. Plaintiff’s actions are almost a direct manifestation of the Levee District’s concerns and highlight the reason why the Levee District has repeatedly insisted that the Plaintiff’s submit complete information before ruling on any of the Plaintiff’s past permit requests. This Court does not have subject matter jurisdiction over this case because the Levee District has not yet issued any final agency action, and also because the Plaintiff has access to adequate alternative judicial remedies in Louisiana State Court. Therefore, this Court should dismiss the Plaintiff’s claims against the Levee District. Case 3:12-cv-00289-RGJ-JPM Document 94-1 Filed 10/11/16 Page 5 of 7 PageID #: 450 C. Plaintiff’s Complaint Fails to State a Claim Based on Denial of All Practical Use. In paragraph 10 of the Complaint, Plaintiff alleges that he meets the elements of a regulatory taking claim because he has been denied “all practical use of his property without just and/or equitable compensation.” In Lingle v. Chevron U.S.A., Inc., 544 U.S. 529, 125 S. Ct. 2074, 161 L.Ed.2d 876 (2005), the court summarized takings jurisprudence, recognizing the different type of takings as: 1. Direct appropriation or physical invasion of private property by the government; 2 Per se regulatory takings: a. Government requiring an owner to suffer a permanent physical invasion of property by another; or b. Where regulations completely deprive an owner of all economically beneficial use of property; 3. Regulatory takings analyzed under the Penn Central balancing test. Although the Plaintiff claims per se regulatory taking in Paragraph 10 of the Complaint, alleging in conclusory fashion that he has been deprived of all practical use of his property, Paragraph 4 of the Complaint makes it clear that the permit at issue is for development of a residential subdivision. Plaintiff has made no effort to explain how the only possible use for the property is for residential development, or why there can be no other use for the property. As the Supreme Court made clear in Lucas v. South Carolina Coastal Counsel, 505 U.S. 10003, 1019, 112 S.Ct. 2886, 120 L.Ed. 2d 798 (1992), a per se regulatory taking must leave the property “economically idle.” Plaintiff has failed to allege facts to show that no other use can possibly be made of the property. Plaintiff has failed to state any claim for a regulatory taking. Case 3:12-cv-00289-RGJ-JPM Document 94-1 Filed 10/11/16 Page 6 of 7 PageID #: 451 CONCLUSION For all of the foregoing reasons, Plaintiff’s Complaint and Amended Complaint against the Fifth Louisiana Levee District, Reynold Minsky, and James Shivers must be dismissed. Respectfully submitted, __s/ John D. Crigler, Jr. _____________ JAMES E. PAXTON- Bar Roll #19094 JOHN D. CRIGLER, Jr.-Bar Roll #31118 BISHOP PAXTON CRIGLER & MOBERLEY 124 Hancock Street St. Joseph, LA 71366 Phone: (318) 766-4892 Facsimile: (318) 766- 3945 Email: Jim@bpcmlaw.com Counsel for Defendant, Levee District CERTIFICATE OF SERVICE I hereby certify that on the 11th day of October, 2016, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that I have mailed the foregoing document by first-class mail (postage pre-paid) or forwarded it by facsimile to all known or non-CM/ECF participants. _s/ John D. Crigler, Jr. ______________ Case 3:12-cv-00289-RGJ-JPM Document 94-1 Filed 10/11/16 Page 7 of 7 PageID #: 452 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION RICKY L. BROWN CASE NO. 3:12-CV-00289-RGJ-JPM VERSUS JUDGE JAMES FIFTH LOUISIANA LEVEE DISTRICT MAGISTRATE JUDGE HAYES TENSAS PARISH, ET AL ORDER BEFORE THE COURT, is the Motion to Dismiss filed by Defendants, Fifth Louisiana Levee District, Reynold Minsky and James Shivers. Considering the above and foregoing; IT IS ORDERED that Defendants’ Motion to Dismiss be and the same is hereby granted and that the Complaint, as amended, under Rules 12(b)(1), and 12(b)(6), as not being ripe for litigation, for failing to state a claim for regulatory taking be and is hereby dismissed. Monroe, Louisiana, this ______ day of October, 2016. ____________________________ Karen L. Hayes United States Magistrate Judge Case 3:12-cv-00289-RGJ-JPM Document 94-2 Filed 10/11/16 Page 1 of 1 PageID #: 453