United States District Court, W.D. Arkansas, El Dorado Division
O. HICKEY, UNITED STATES DISTRICT JUDGE
the Court is Defendant’s Second Motion for Summary
Judgment. (ECF No. 119). Plaintiff has responded. (ECF No.
126). Defendant has filed a Reply. (ECF No. 127). The Court
finds this matter ripe for its consideration.
5, 2014, the City of El Dorado’s Code Enforcement
Officer mailed notice to Plaintiff Vada Smith’s
husband, Brian Smith, the owner of the property located at
636 Nelson. The notice informed Mr. Smith that the
structure on the property was deemed to be a nuisance and
unsafe and would be subject to condemnation by the El Dorado
City Council if not remedied within thirty days. Notice was
mailed to the address for Mr. Smith on file with the City.
The City later received the signed return receipt. The Smiths
took no further action concerning the property. More than
thirty days later, the City Council voted to condemn the
structure. The resolution condemning the building was then
posted on the 636 Nelson property. Mrs. Smith retrieved the
condemnation notice and gave it to Mr. Smith.
Smith, along with two other plaintiffs, brought claims
against the City of El Dorado and other Defendants. (ECF No.
28). Plaintiffs alleged that the Defendants’
condemnation of their properties violated their
constitutional rights. The Defendants filed a Motion for
Summary Judgment. (ECF No. 68). The Court granted in part and
denied in part the motion. (ECF No. 95). In the Court’s
Order, all Defendants except the City of El Dorado were
dismissed, and all claims of Plaintiffs Elease Hill and
Carlton Newsome were dismissed. The majority of Mrs.
Smith’s claims were also dismissed. Mrs. Smith’s
claim for procedural due process regarding her 636 Nelson
property survived summary judgment. The Court then permitted
the parties to conduct limited additional discovery and
reopened the time to file dispositive motions. (ECF No. 111).
The City of El Dorado then filed the Motion for Summary
Judgment under consideration.
motion for summary judgment will be granted if the
“pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact,
and that the moving party is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(c). To establish that a
genuine issue of material fact exists, the nonmoving party
must show that (1) there is a factual dispute, (2) the
disputed fact is material to the outcome of the case, and (3)
the dispute is genuine. RSBI Aerospace, Inc. v.
Affiliated FM Ins. Co., 49 F.3d 339, 401 (8th Cir.
1995). A dispute is genuine only if a reasonable jury could
return a verdict for either party. Id.; Anderson
v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also
McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510
(8th Cir. 1995). The party opposing a motion for summary
judgment must rely on more than conclusory statements or
allegations unsupported by facts. Davis v. U.S.
Bancorp, 383 F.3d 761, 765 (8th Cir. 2004) (citation
Due Process Clause of the Fifth Amendment prohibits the
United States, as the Due Process Clause of the Fourteenth
Amendment prohibits the States, from depriving any person of
property without ‘due process of law.’”
Dusenbery v. United States, 534 U.S. 161, 167
(2002). Likewise, municipal governments are prohibited by the
Fourteenth Amendment from denying citizens the equal
protection of law. Avery v. Midland Cnty., Tex., 390
U.S. 474, 480 (1968) (“A city, town, or county may no
more deny the equal protection of the laws than it may
abridge freedom of speech, establish an official religion,
arrest without probable cause, or deny due process of
Fourteenth Amendment to the United States Constitution
provides as follows:
No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of
procedural due process claim “is not complete when the
deprivation occurs; it is not complete unless and until the
State fails to provide due process.” Zinermon v.
Burch, 494 U.S. 113, 126 (1990). Plaintiffs must exhaust
all state remedies available to them before bringing a §
1983 claim, including judicial remedies. See Wax ‘n
Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th Cir.
2000); Corder v. City of Sherwood, 579 F.Supp. 1042
(E.D. Ark. 1984). Under Arkansas Code Annotated §
14-56-425 and Arkansas District Court Rule 9(f), a party may
appeal a decision of a City Council within thirty days of the
council’s decision to an Arkansas Circuit Court.
Ingram v. City of Pine Bluff, 133 S.W.3d 382 (Ark.
2003). Defendant asserts that Mrs. Smith’s procedural
due process claim fails because she did not exhaust her state
court remedies. Mrs. Smith argues that it is disputed whether
she ever received notice of the condemnation. Mrs. Smith
admits that she did not attempt to appeal the decision of the
City Council. However, before she is required to exhaust her
state remedies, the City must first give proper notice of the
proceedings and the adverse decision.
fundamental requirement of due process is the opportunity to
be heard at a meaningful time and in a meaningful
manner.” Mathews v. Eldridge, 424 U.S. 319,
333 (1976). The Court must determine whether the City gave
Smith “notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency
of the [proceeding] and afford them an opportunity to present
their objections.” Mullane v. Cent. Hannover Bank
& Trust Co., 339 U.S. 306, 314 (1950).
Smith argues that the notice given to her was insufficient
because it is disputed whether she actually received notice.
Specifically, she points out that Mr. Smith denies that the
signature on the return receipt card is his. However, the law
does not require actual notice. Instead, what is required is