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Johnson v. City of Nashville

United States District Court, W.D. Arkansas, Texarkana Division

June 27, 2017

CARL JOHNSON and JUSTIN JOHNSON PLAINTIFFS
v.
CITY OF NASHVILLE, A MUNICIPAL CORPORATION, et al., DEFENDANTS

          ORDER

          Susan O. Hickey United States District Judge.

         Before the Court are the court-ordered briefs submitted by the parties regarding the issue of whether Jerry Harwell had final policymaking authority for the City of Nashville. ECF Nos. 36, 37. The Court finds this matter ripe for consideration.

         I. BACKGROUND

         As the Court noted in a previous order, Plaintiffs appear to premise their contention that the City of Nashville is liable for the alleged violation of their constitutional rights solely on the theory that Jerry Harwell's decision to demolish their building constituted official municipal policy. It is well established that where a claim is based on a final policymaker theory “[t]he district court must identify the final policymaker as a matter of law before the claims reach the jury.” Soltesz v. Rushmore Plaza Civic Ctr., 847 F.3d 941, 947 (8th Cir. 2017). Accordingly, due to the fact that the parties had not adequately briefed this issue, the Court directed the parties to “thoroughly brief the issue of whether Jerry Harwell qualifies as a ‘final policymaker' for the City of Nashville and whether his decision to raze Plaintiffs' building constituted the official policy of the City of Nashville for purposes of § 1983 municipal liability.” ECF No. 33.

         II. DISCUSSION

         In Monell v. Department of Social Services, the Supreme Court established that a municipality is subject to liability under 42 U.S.C. § 1983 only when the violation of a plaintiff's constitutional right can be attributed to the enforcement or application of “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” 436 U.S. 658, 690 (1978). In contrast, states and state officials acting in their official capacities are not “persons” for purposes of 42 U.S.C. § 1983. Will v. Mich. Dept. of State Police, 491 U.S.

         58, 71 (1989) (in which the Court stated “that neither a State nor its officials acting in their official capacities are ‘persons' under § 1983”). The Monell Court further stated that:

although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 ‘person, ' by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental ‘custom' even though such a custom has not received formal approval through the body's official decision-making channels.

Monell, 436 U.S. at 690. Furthermore, courts have found that “a single decision by a municipal official can constitute official policy.” Soltesz, 847 F.3d at 946 (citing Bolderson v. City of Wentzville, 840 F.3d 982, 985 (8th Cir. 2016)). However, “liability attaches only where the decision-maker possesses final authority to establish municipal policy with respect to the action ordered.” Id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)); see also, McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 785-86 (1997) (“[T]he question is not whether [the local official] acts for [the state] or [the political subdivision] in some categorical ‘all or nothing' manner. Our cases on the liability of local governments under § 1983 instruct us to ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue.”); Dean v. Cnty. of Gage, 807 F.3d 931, 940 (8th Cir. 2015) (quoting McMillian, 520 U.S. at 784, “[A] local government is liable under § 1983 for its policies that cause constitutional torts. These policies may be set by the government's lawmakers, or by those whose edicts or acts may fairly be said to represent official policy.”), cert. denied sub nom. Gage Cnty., Neb. v. Dean, 136 S.Ct. 2490 (2016). “[T]he word ‘policy' generally implies a course of action consciously chosen from among various alternatives[.]” City of Okla. City v. Tuttle, 471 U.S. 808, 823 (1985).

         In City of St. Louis v. Praprotnik, the Supreme Court explained the analysis to be used in determining whether a certain official has “final policymaking authority”:

We begin by reiterating that the identification of policymaking officials is a question of state law. “Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law.” Thus the identification of policymaking officials is not a question of federal law, and it is not a question of fact in the usual sense. The States have extremely wide latitude in determining the form that local government takes, and local preferences have led to a profusion of distinct forms. Among the many kinds of municipal corporations, political subdivisions, and special districts of all sorts, one may expect to find a rich variety of ways in which the power of government is distributed among a host of different officials and official bodies. Without attempting to canvass the numberless factual scenarios that may come to light in litigation, we can be confident that state law (which may include valid local ordinances and regulations) will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of a local government's business.

485 U.S. 112, 124-125 (1988) (internal citations omitted). In making this determination, district courts should consult two sources: “(1) ‘state and local positive law' and (2) state and local ‘custom or usage having the force of law.'” Soltesz, 847 F.3d at 946 (quoting Atkinson v. City of Mountain View, 709 F.3d 1201, 1215 (8th Cir. 2013)). However, the Praprotnik Court stated that it was “not, of course, predicting that state law will always speak with perfect clarity.” 485 U.S. at 125.

         Again, upon examination of the entire record, it seems that Plaintiffs base their claim that the City of Nashville is liable for alleged constitutional violations on the contention that Harwell was a “final policymaker” for the City of Nashville, arguing at one point that his decision to demolish Plaintiffs' building constituted “the de facto official policy of the City of Nashville.”[1]ECF No. 19, p. 15. Further, it appears to be undisputed that Harwell based his decision to demolish Plaintiffs' building and claimed authority to do so under the Arkansas Fire Prevention Code, 2007 Edition (“AFPC”), a state regulatory code that was in effect at the time of the events in question. ECF No. 36, p. 4 (Defendants' brief stating that “Mr. Harwell's decision to abate this property . . . was a decision based upon authority given to him by the State of Arkansas' Fire Code, not by the City of Nashville, Arkansas.”); ECF No. 37, p. 6 (Plaintiffs' brief stating that “[i]n sum, Chief Harwell was the final decision making authority at the fire scene . . . pursuant to Volume I of the Arkansas Fire Prevention Code.”). Therefore, the Court must potentially make two determinations: (1) whether Harwell had final policymaking authority and, if so, (2) whether he was a final policymaker for the City of Nashville or the State of Arkansas.

         A. Policymaking Authority of Jerry Harwell

         The parties have provided the Court with various sections of the 2007 Edition of the AFPC in support of their arguments. The introductory pages of the 2007 Edition note that the AFPC was “developed to assist in preventing and controlling fires in and outside of structures in the State of Arkansas.” ECF No. 37-1. Furthermore, in the introductory note, Colonel Winford E. Phillips, Director of the Arkansas State Police and Arkansas State Fire Marshal, states that he “encourage[s] Arkansas cities and counties to join with the Arkansas State Fire Marshal's Office in an effort to enforce the AFPC by adopting the [AFPC] as a local ordinance.” ECF No. 37-1. Colonel Phillips went on to state that “[p]ursuant to the authority vested in the Director of the Department of Arkansas State Police by Section 6 of Act 254 of 1955 (A.C.A. §[] 12-13-105), as amended, I promulgate these rules for the prevention of fire hazards in the State of Arkansas.”[2]ECF No. 37-1. Further, in the Foreword to the AFPC Lieutenant Lindsey Williams of the State Fire Marshal's Office of the Department of Arkansas State Police states that “[t]he [AFPC] establishes MINIMUM rules dealing with fire and building safety.” ECF No. 37-1 (emphasis in original).

         Of great importance to the present controversy is § 101.2.2 of the AFPC. That section states that:

Each district, county, municipality or other political subdivision of this state shall only adopt and enforce the provisions of the Arkansas Fire Prevention Code, 2007 Edition. The AFPC 2007 Edition shall be the only foundation document available for modification by local jurisdictions should they choose to adopt more stringent provisions. It shall be the responsibility of local authorities having jurisdiction to bring the proposed specific rule or provision up to the minimum standards of the AFPC 2007 Edition.

ECF No. 37-2, AFPC § 101.2.2. When read in conjunction with Colonel Phillips' introductory note “encouraging” cities and counties to adopt the AFPC and Lieutenant Williams' statement that the AFPC establishes “minimum” rules, it is evident that the AFPC applies across the state of Arkansas and that although cities and counties may adopt the AFPC, they are not required to do so.[3] Plaintiffs contend that § 101.2.2 requires local jurisdictions to adopt the AFPC. ECF No. 37, p. 2. However, although various notes and provisions of the AFPC establish that local jurisdictions must follow the AFPC, the language of § 101.2.2 does not necessarily require local authorities to adopt the AFPC. Regardless, shortly after making this claim Plaintiffs state that “[t]here is no evidence that the City of Nashville adopted the AFPC as a local ordinance[.]” ECF No. 37, p. 2. Further, § 101.2.2 establishes that cities and counties, if they so desire, are able to adopt more stringent provisions. However, Plaintiffs state that “[t]here is no evidence that the City of Nashville . . . through local ordinances modified [the] AFPC.” ECF No. 37, pp. 2-3. Thus, it seems undisputed that Harwell was acting under the authority of the AFPC as promulgated by the State of Arkansas, as the City of Nashville had not formally adopted the AFPC or any more stringent code.

         Another relevant provision of the AFPC describes something known as the “department of fire prevention.” ECF No. 37-3, AFPC § 103.1. Section 103.1 states that “[t]he department of fire prevention is established within the jurisdiction under the direction of the fire code official” and that the “function of the department shall be the implementation, administration and enforcement of the provisions of this code.” ECF No. 37-3, AFPC § 103.1. The AFPC defines “fire code official” as “[t]he fire chief or other designated authority charged with the administration and enforcement of the code, or a duly authorized representative.” ECF No. 37-4, p. 3, AFPC § 202. Likewise, the AFPC defines “fire ...


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