United States District Court, W.D. Arkansas, Fort Smith Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
the Court are Plaintiffs' motion for partial summary
judgment (Doc. 14), statement of facts in support of their
motion (Doc. 15), and brief in support of their motion (Doc.
16). Defendants filed a response in opposition (Doc. 23), a
response to Plaintiffs' statement of facts (Doc. 24), and
a brief in support of their response (Doc. 25).
before the Court are Defendants' motion for summary
judgment (Doc. 17), statement of facts in support of their
motion (Doc. 18), and brief in support of their motion (Doc.
19). Plaintiffs filed a response in opposition (Doc. 20), a
response to Defendant' statement of facts (Doc. 21), and
a brief in support of their response (Doc. 22). Defendants
filed a reply (Doc. 26) and a brief in support of their reply
reasons stated herein, the Court will grant Defendants'
motion for summary judgment (Doc. 17) and deny
Plaintiffs' motion for partial summary judgment. (Doc.
case arises from a dispute “about sewer charges over a
period of time of nearly 18 years for two sets of properties
owned by [Plaintiffs]” (Doc. 19, p. 10). While the factual
and procedural history of this case is complex, the issues
before the Court on summary judgment are narrow.
Legal Standard for Summary Judgment
party moves for summary judgment, it must establish both the
absence of a genuine dispute of material fact and that it is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986); Nat'l Bank
of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165
F.3d 602, 606 (8th Cir. 1999). In order for there to be a
genuine issue of material fact, the nonmoving party must
produce evidence “such that a reasonable jury could
return a verdict for the nonmoving party.” Allison
v. Flexway Trucking, Inc., 28 F.3d 64, 66-67 (8th Cir.
1994) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). Only facts “that might affect
the outcome of the suit under the governing law” need
be considered. Anderson, 477 U.S. at 248.
“[T]he non-movant must make a sufficient showing on
every essential element of its claim on which it bears the
burden of proof.” P.H. v. Sch. Dist. of Kan. City,
Mo., 265 F.3d 653, 658 (8th Cir. 2001). Facts asserted
by the nonmoving party “must be properly supported by
the record, ” in which case those “facts and the
inferences to be drawn from them [are viewed] in the light
most favorable to the nonmoving party.” Id. at
three, six, seven, eight, and nine of the complaint allege
claims under federal law. The remaining counts allege claims
under state law. The Court will address each of the federal
claims in turn.
count three, Plaintiffs allege that Defendants made a
“misrepresentation to a federal agency.” (Doc. 1,
p. 11). There is no cause of action for
“misrepresentation to a federal agency” under
federal law. In their response brief (Doc. 22), Plaintiffs
appear to assert that they are bringing this claim under the
False Claims Act, 31 U.S.C.A. § 3729. However,
Plaintiffs have not complied with the procedural requirements
to bring a private action under the False Claims Act,
including bringing the action in the name of the Government
and filing the complaint in camera. 31 U.S.C. §
3730. Accordingly, Plaintiffs' claim raised in count
three will be dismissed.
count six, Plaintiffs allege that Defendants have deprived
them of their civil rights in violation of 42 U.S.C. §
1982. In count eight, Plaintiffs allege that Defendants
Lonnie Robins and Veronica Robins conspired to deprive them of
their civil rights in violation of 42 U.S.C. § 1985. To
successfully bring a claim under § 1982, Plaintiffs must
show that they were discriminated against on the basis of
race. Jones v. Alfred H. Mayer Co., 392 U.S. 409,
413 (1968) (§ 1982 “deals only with racial
discrimination”). To successfully bring a claim under
§ 1985, Plaintiffs must demonstrate that there is
“some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the
conspirators' action.” Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971). “The term
class-based animus does not include personal animus.”
Shortbull v. Looking Elk, 677 F.2d 645, 649 (8th
Cir. 1982). Plaintiffs have not offered any facts
demonstrating that they were discriminated against on the
basis of race or that there was discriminatory animus behind
Lonnie Robins and Veronica Robins' actions. Plaintiffs
have simply alleged that Lonnie Robins and Veronica Robins
sought to retaliate against them for evicting the couple from
one of their rental properties in 1994. Assuming that this
allegation is true, it demonstrates personal animus, not
racial or class-based discrimination. Accordingly,
Plaintiffs' claims under counts six and eight will be
count seven, Plaintiffs bring an action under 42 U.S.C.
§ 1983 for a violation of their right to equal
protection. Specifically, Plaintiffs allege that “[b]y
reason of [Defendants'] targeted use of state power to
demand payment from [Plaintiffs] for a service not provided,
[Plaintiffs] have become a protected class of one.”
(Doc. 1, p. 14). The threshold inquiry in a class-of-one
equal protection claim is whether Plaintiffs' are
similarly situated to others who allegedly received
preferential treatment. Robbins v. Becker, 794 F.3d
988, 996 (8th Cir. 2015). Plaintiffs do not offer any facts
demonstrating that any similarly situated individuals
received preferential treatment. Both parties agree that
Plaintiff Lee Hackler testified that “it is only his
opinion that he was targeted, but that ‘I can show you
no facts.'” (Doc. 18, ¶ 65; Doc. 21 ¶
65). Accordingly, Plaintiffs cannot meet the threshold
requirement for a class-of-one equal protection claim and
their claim under count seven will be dismissed.
count nine, Plaintiffs bring a due process claim under the
14th Amendment. Specifically, Plaintiffs allege that
Defendants have “pursued a course of action to deprive
[Plaintiffs] of livelihood without giving them an opportunity
for a fair hearing.” (Doc. 1, p. 16). “Under
federal law, a litigant asserting a deprivation of procedural
due process must exhaust state remedies.” Hopkins
v. City of Bloomington, 774 F.3d 490, 492 (8th Cir.
2014). Plaintiffs allege in count nine that the Dyer City
Court issued an order in 2006 finding that Plaintiffs must
stop being charged for sewer service they are not receiving.
However, Plaintiffs do not indicate that they have made any
efforts to enforce this order in state court before bringing
a due process claim in federal court. Accordingly,
Plaintiff's claim under Count 9 is not ripe for
adjudication and will be dismissed without prejudice. See
Crooks v. Lynch, 557 F.3d 846, 849-49 (8th Cir. 2009)
(holding that because property owner failed to exhaust his
state remedies, the court lacked jurisdiction over the case,