United States District Court, W.D. Arkansas, El Dorado Division
O. Hickey United States District Judge
the Court is Defendant's Motion for Summary Judgment. ECF
No. 38. Plaintiff has responded. ECF No. 42. Defendant has
filed a reply. ECF No. 44. The Court finds this matter ripe
for its consideration.
August 7, 2015, Plaintiff Sharmon Rester filed this action
seeking a declaratory judgment and preliminary and permanent
injunctive relief against Defendant, the City of El
Dorado. Plaintiff claims that Defendant violated
his due process and equal protection rights under the Fifth
and Fourteenth Amendments to the United States Constitution.
(ECF No. 1, ¶ 11). These claims, however, have been
narrowed so that Plaintiff is currently alleging only a
procedural due process claim under the Fourteenth Amendment.
ECF No. 34, p. 3.
case involves two properties located at 304-308 Robinson
Street and 1005 Pecan Street in El Dorado, Arkansas.
Plaintiff is the owner of the Pecan Street property. On
August 15, 2013, Defendant's Code Enforcement Officer,
Kirby Craig, sent a certified letter to Plaintiff stating
that a structure on the Pecan Street property was found to be
a “fire/health hazard unsafe and/or a public
nuisance.” ECF No. 38-2, p. 4. The letter further
stated that the “building [was] in immediate need of
repair and maintenance” and that Plaintiff had thirty
days “to make the building . . . habitable, secure,
structurally sound, and brought up to the current Codes that
shall apply, or remove [the building] and clean up all the
debris from the premises.” ECF No. 38-2, p. 4. The
letter informed Plaintiff that “[i]f action [was] not
taken the matter [would be] turned over to the City Council
of El Dorado for Condemnation.” ECF No. 38-2, p. 4.
Plaintiff's wife signed for the letter on August 15,
2013. Plaintiff, however, maintains that he never saw the
October 24, 2013, the City Council passed a resolution
condemning the Pecan Street structure based on its
deficiencies. ECF No. 38-2, p. 6. Plaintiff received actual
notice of this resolution via mail, ECF No. 38-1 pp. 14-15,
18-19. Additionally, notice was posted on the structure
located on the Pecan Street property and published in the
local newspaper. ECF No. 38-2, ¶. 5. After Plaintiff
received notice of the resolution, he spoke to Kirby Craig
about working to improve the property. After this
conversation, at least one year passed without Plaintiff
taking any action to “fix” the property. ECF No.
38-2, ¶ 6. Defendant then razed the structure located on
the Pecan Street property. On June 1, 2015, Plaintiff entered
into an agreement with Defendant to pay for half of the costs
Defendant incurred in demolishing the structure.
August 7, 2015, Plaintiff filed the current lawsuit alleging
that his Fourteenth Amendment rights were violated by
Defendant because he “was not afforded an opportunity
to be heard . . . or [given] notice for [the] actions of
condemnation and the subsequent demolition of [his]
property.” ECF No. 1, ¶ 11. Defendant, however,
argues that it is entitled to summary judgment regarding the
Pecan Street property.
point during this litigation, Plaintiff indicated that he was
also making a procedural due process claim regarding a second
property located at 304-308 Robinson Street. The Robinson
Street property is titled in the name of Lois Bailey, who is
Plaintiff's mother. On February 6, 2014, a certified
letter was sent to Bailey notifying her that a structure
located on the Robinson Street property had been found to be
a “fire/health hazard, deemed unsafe and/or a public
nuisance due to abandonment or neglect.” ECF No. 38-2,
p. 18. The letter further stated that if the unsafe
conditions regarding the structure were not abated, the
matter would be submitted to the City Council for
condemnation proceedings. The letter, however, was returned
“unclaimed.” ECF No. 38-2, p. 19.
Robinson Street property was condemned by the City Council
via a resolution passed on June 17, 2014. The resolution was
posted on the structures located at 304-308 Robinson Street,
and notice of the resolution was published in a local
newspaper. Bailey is not a party to the present lawsuit, and
the City has not razed any structure located on the Robinson
Street property. Plaintiff argues that his procedural due
process rights were violated because the property was
condemned without affording him notice of the condemnation
proceedings and an opportunity to be heard. Defendant,
however, argues that Plaintiff's claim regarding this
property should be dismissed because Plaintiff is not the
legal owner of the Robinson Street property and does not have
standing to bring a claim regarding this property.
Court will first address the preliminary issue of whether
Plaintiff has standing to bring his procedural due process
claim regarding the Robinson Street property. The Court will
then address Defendant's argument that it is entitled to
summary judgment regarding the Pecan Street property.
complaint does not refer to any specific property at issue.
Instead, the complaint refers generically to
“Plaintiff's property.” During discovery,
Plaintiff clarified that two El Dorado, Arkansas properties
are at issue in this case: 1005 Pecan Street and 304-308
Robinson Street. Defendant asserts that Plaintiff lacks
standing to bring claims regarding 304-308 Robinson Street
because he does not own this property.
is “assessed under the facts existing when the
complaint is filed.” Lujan v. Defenders of
Wildlife, 504 U.S. 560, 569 n. 4 (1992). The Supreme
Court has ...