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Pitchford v. City of Earle

November 2, 2007

FREDERICK LEE PITCHFORD PLAINTIFF
v.
CITY OF EARLE, ARKANSAS; SHERMAN SMITH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS MAYOR OF EARLE, ARKANSAS; SYLVIA LAYTON, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS CLERK OF THE CITY OF EARLE; ROBERT MALONE; SARA JOHNSON; ANN PICKERING; JESSE SELVY; BOBBY LUCKETT; DONNIE CHEERS; LEROY COWLING, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE EARLE CITY COUNCIL; L. MANUAL CLOUSE, CITY INSPECTOR DEFENDANTS



The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge

ORDER

Pending is Defendants' Motion for Summary Judgment.*fn1 Plaintiff, who is pro se, did not respond, but filed two Motions for an Extension of Time to File a Response.*fn2 The first motion was granted,*fn3 and the second motion was denied.*fn4 Instead of filing a response, Plaintiff filed a Motion for Reconsideration*fn5 and renewed his request for an extension and for a continuance.

I. Background

Plaintiff filed a pro se complaint alleging that a building he owns was condemned by Earle's city council in violation of his constitutional rights. Plaintiff brings his claim under 42 U.S.C. §§ 1981, 1982, 1983, and 1985.

On November 16, 2004, Earle's city council passed a resolution that was signed by the mayor, condemning Plaintiff's building because it was dilapidated. Plaintiff alleges that Defendants condemned his property without notice and a fair hearing, and because he is African-American.

The city council's resolution orders Plaintiff to "remove or raze the said building within thirty days."*fn6 It does not threaten to demolish the building, and there are no allegations that the city razed the building.

Defendants maintain that the building is still standing, and that there are not enough funds to pay for its demolition. Defendants also contend that Plaintiff cannot support his allegations and he fails to state a claim under federal laws or the Constitution.

II. Standards of Review

A. Summary Judgment

Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided on purely legal grounds.*fn7 The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:

The inquiry performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.*fn8 The Court of Appeals for the Eighth Circuit has cautioned that summary judgment is an extreme remedy that should only be granted when the movant has established a right to the judgment beyond controversy.*fn9 Nevertheless, summary judgment promotes judicial economy by preventing trial when no genuine issue of fact remains.*fn10 I must view the facts in the light most favorable to the party opposing the motion.*fn11 The Eighth Circuit has also set out the burden of the parties in connection with a summary judgment motion:

[T]he burden on the party moving for summary judgment is only to demonstrate, i.e.,"[to point] out to the District Court," that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted.*fn12

Only disputes over facts that may affect the outcome of the suit under governing law will properly preclude the ...


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