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Hackler v. City of Dyer

United States District Court, W.D. Arkansas, Fort Smith Division

May 23, 2018

LEE HACKLER and PATRICIA HACKLER PLAINTIFFS
v.
CITY OF DYER, ARKANSAS and LONNIE ROBINS AND VERONICA ROBINS, individually and in their capacity as official agents of the City of Dyer, Arkansas DEFENDANTS

          OPINION AND ORDER

          P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE

         Before 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).

         Also 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 (Doc. 27).

         For the reasons stated herein, the Court will grant Defendants' motion for summary judgment (Doc. 17) and deny Plaintiffs' motion for partial summary judgment. (Doc. 14).

         I. Background

         This 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).[1] While the factual and procedural history of this case is complex, the issues before the Court on summary judgment are narrow.

         II. Legal Standard for Summary Judgment

         When a 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 656- 57.

         III. Analysis

         Counts 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.

         In 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.

         In 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[2] 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 dismissed.

         In 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.[3] 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.

         In 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, and ...


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