United States District Court, W.D. Arkansas, Texarkana Division
MEMORANDUM OPINION AND ORDER
O. Hickey United States District Judge
the Court is a Motion for Summary Judgment filed by
Defendants City of Nashville, Arkansas; Billy Ray Jones; Mike
Reese; Freddy Brown; Matt Smith; Jackie Harwell; Nick Davis;
Monica Clark; Vivian Wright; Jimmie Lou Kirkpatrick; Kay
Gathright; James Parker; Carol Mitchell; Andy Anderson; Mike
Milum; and Jerry Harwell. ECF No. 15. Plaintiffs have filed a
response. ECF No. 18. The Court finds this matter ripe for
March 24, 2016, Defendants filed the present Motion for
Summary Judgment. ECF No. 15. The Complaint names the
following defendants: (1) The City of Nashville, a municipal
corporation; (2) Jerry Harwell, Fire Marshal; (3) Mike Reese,
former mayor of the City of Nashville, (4) Billy Ray Jones,
Mayor of the City of Nashville; (5) Freddy Brown, Matt Smith,
Jackie Harwell, Nick Davis, Monica Clark, Vivian Wright,
Jimmie Lou Kirkpatrick, Kay Gathright, James Parker, Carol
Mitchell, Andy Anderson, and Mike Milum "in their
official capacity" as city council members for the City
of Nashville; and (6) Tomco, Inc.
are co-owners of a business formerly located at 216 N. Main
Street in Nashville, Arkansas. ECF No. 1, p. 3. Plaintiff
Carl Johnson has operated a business at that location since
2008. ECF No. 1, p. 3. On the afternoon of August 26, 2010, a
fire started in a neighboring store and spread to the
building owned by Plaintiffs. ECF No. 1, p. 3. Numerous fire
departments responded and eventually extinguished the fire.
ECF No. 1, p. 3. Plaintiffs allege that once Carl Johnson was
given notice of the fire, he called the Nashville Fire
Department and was told his building would not be demolished.
ECF No. 1, p. 4. After the fire was extinguished, Defendant
Jerry Harwell, in his role as Fire Chief and Fire Marshal for
the City of Nashville, ordered that Plaintiffs' building
be demolished. ECF No. 1, p. 4. Plaintiffs' building was
subsequently demolished and the inventory located inside was
destroyed or damaged. ECF No. 1, p. 4. Plaintiffs were in San
Antonio, Texas, at the time of the fire and demolition and
were neither given notice of the decision nor provided an
opportunity to respond. ECF No. 1, p. 4.
allege and have provided supporting evidence that multiple
individuals questioned and protested the necessity of
demolishing 216 N. Main Street and that at least one person
was prepared to board up the doors and windows of the
premises after the fire was extinguished. ECF No. 1, p. 4,
ECF Nos. 18-1 & 18-2. Plaintiffs have also provided
supporting affidavits for their argument that it was not
necessary to demolish 216 N. Main Street as a means of
protecting public safety, health, or welfare. ECF Nos. 18-1
& 18-2. Plaintiffs allege that the demolition of 216 N.
Main Street constitutes a violation of "Plaintiffs'
due process and equal protection rights, in accordance with
the Fifth and Fourteenth Amendments to the United States
Constitution, and to Plaintiffs' right against
'unreasonable searches and seizure [sic]' under the
Fourth Amendment." ECF No. 1, p. 5.
seek relief pursuant to 42 U.S.C. § 1983. Plaintiffs
pray for "[(1)] a Declaratory Judgment that the
demolition of Plaintiffs' building and destruction of the
building's contents without prior notice and an
opportunity to be heard is a violation of due process and
equal protection and was deliberately indifferent in
violation to 42 U.S.C. § 1983 and the Fifth and
Fourteenth Amendments and constitutes a 'seizure'
with [sic] the meaning of the Fourth Amendment; [(2)] for an
Injunction Prohibiting future perpetuation of the Policies
and Customs complained of; . . . [(3)] judgment against
Defendants ... in the amount of $224, 985.00 as the
replacement costs of the building and $927, 320.00 as the
fair market value of Plaintiffs' inventory; [and (4) an
award of] attorney's fees and costs and for such other
relief as the Court deems proper." ECF No. 1, pp. 6-7.
their Answer, Defendants state that Defendant Jerry Harwell
was one of the individuals who made the decision to demolish
the building, but claim that he acted pursuant to the
International Fire Code ("Fire Code") as adopted by
the State of Arkansas in 2007, not pursuant to a standing
policy or custom of the City of Nashville. ECF No. 8, p. 3.
Defendants further state that none of Plaintiffs' friends
or family would have been permitted to enter the building
after the fire was extinguished. ECF No. 8, p. 3.
Federal Rules of Civil Procedure provide that when a party
moves for summary judgment:
The court shall grant summary judgment 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). The Supreme Court has issued the
following guidelines for trial courts to determine whether
this standard has been satisfied:
The inquiry performed is the threshold inquiry of determining
whether there is a need for trial-whether, in other words,
there are 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.
Anderson v. Liberty Lobby, Inc., Inc., U.S. 242, 250
(1986); see also Agristor Leasing v. Farrow, 826
F.2d 732 (8th Cir. 1987); Niagara of Wis. Paper Corp. v.
Paper Indus. Union-Mgmt. Pension Fund,800 F.2d 742, 746
(8th Cir. 1986). A fact is material only when its resolution
affects the outcome of the case. Anderson, 477 U.S.
at 248. A dispute is genuine if the evidence is such that ...