United States District Court, E.D. Arkansas, Western Division
STEVEN A. MOSLEY, SHERYL M. MOSLEY, RONALD KELTNER, and GINNY KELTNER PLAINTIFFS
JIM MORLEY, in his official capacity as Director of Building, Code Enforcement and Permits for the City of Maumelle and CITY OF MAUMELLE, ARKANSAS DEFENDANTS
OPINION AND ORDER
KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE.
the Court is a motion for partial summary judgment filed by
plaintiffs Steven A. Mosley, Sheryl M. Mosley, Ronald
Keltner, and Ginny Keltner (Dkt. No. 44). Defendants Jim
Morley, in his official capacity as Director of Building,
Code Enforcement and Permits for the City of Maumelle, and
the City of Maumelle, Arkansas (collectively, “the
City”), have responded in opposition (Dkt. Nos. 45,
46). Plaintiffs have replied (Dkt. No. 49). For the reasons
that follow, the Court denies the motion (Dkt. No. 44).
residents of Maumelle, Arkansas, bring this 42 U.S.C. §
1983 action seeking declaratory and injunctive relief against
the City. Plaintiffs argue in their present motion that the
City violated the substantive due process guarantees of both
the United States and Arkansas Constitutions. The Court
summarized the factual background of this matter in prior
Orders and adopts and incorporates by reference those
summaries (Dkt. Nos. 48, 51). Unless otherwise noted, the
following additional facts are taken from plaintiffs'
statement of undisputed material facts (Dkt. No. 44-2), the
City's response to plaintiffs' statement of
undisputed material facts (Dkt. No.46), and plaintiffs'
reply to the City's response to plaintiffs' statement
of undisputed material facts (Dkt. No. 49-2).
parties agree that both side fences on the Mosleys'
property previously extended all the way down to the river
inlet (Dkt. No. 44-2, ¶ 5; Dkt. No. 20, ¶ 10). In
June 2016, approximately 20 feet of one of the Mosleys'
side fences were damaged by a tree service company hired by
the Mosleys' neighbor, Mr. Keltner (Dkt. No. 44-2, ¶
7). Based on a measurement taken by Mr. Mosley after the
onset of this litigation, the fence is approximately 156 feet
in length (Id., ¶ 8). Plaintiffs contend that
Mr. Keltner was threatened with criminal prosecution by the
City because of a damaged side fence the City claimed
extended beyond his rear property line (Id., ¶
15). On June 26, 2014, the following email exchange occurred
between City Attorney JaNan Davis and Mr. Morley
(Id., ¶ 23).
Ms. Davis wrote the following:
I talked to [a resident] . . . about his fence . . . . He
takes the position that the 40 foot portion of his fence that
was damaged did not render his fence “materially
damaged” for purposes of removing it from the
protection of the grandfather provision in the fence
ordinance. I told him I would view the fence in sections -
not the entire perimeter of the yard and that 40 feet down
would be “materially damaged” in my view. But
ultimately, it did not matter my view or yours, the [planning
commission] would have to grant/deny the variance.
Mr. Morley sent the following response:
I agree with you. My view is that we shouldn't allow the
re-building or repair of any portion of a fence in a
submit the City's responses to interrogatories 28 through
34 to allege that, even after this action was filed
challenging the validity of § 14-114(b), the City still
could not articulate a rational explanation concerning the
meaning of the term “materially challenged”
(Id., ¶ 24).
now move for partial summary judgment on the issue of whether
the City has violated plaintiffs' rights under the Due
Process Clauses of the United States and Arkansas
Summary Judgment Standard
judgment is proper if the evidence, when viewed in the light
most favorable to the nonmoving party, shows that there is no
genuine issue of material fact and that the defendant is
entitled to entry of judgment as a matter of law.
Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). A factual dispute is genuine if the evidence
could cause a reasonable jury to return a verdict for either
party. Miner v. Local 373, 513 F.3d 854, 860 (8th
Cir. 2008). “The mere existence of a factual dispute is
insufficient alone to bar summary judgment; rather, the
dispute must be outcome determinative under the prevailing
law.” Holloway v. Pigman, 884 F.2d 365, 366
(8th Cir. 1989). However, parties opposing a summary judgment
motion may not rest merely upon the allegations in their
pleadings. Buford v. Tremayne, 747 F.2d 445, 447
(8th Cir. 1984). The initial burden is on the moving party to
demonstrate the absence of a genuine issue of material fact.
Celotex Corp., 477 U.S. at 323. The burden then
shifts to the nonmoving party to establish that there is a
genuine issue to be determined at trial. Prudential Ins.
Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 2008).
“The evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his
favor.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). The quantum of proof that the nonmoving
party must produce is not precisely measurable, but it must
be “enough evidence so that a reasonable jury could
return a verdict for the nonmovant.” Id. at
257. On a motion for summary judgment, the court views all
the facts in the light most favorable to the nonmoving party
and gives that party the benefit of all reasonable inferences
that can be drawn from the facts. Rakes v. Life Investors
Ins. Co. of Am., 582 F.3d 886, 893 (8th Cir. 2009).
Federal Rule Of Civil Procedure 56(c)(1)
response to plaintiffs' motion for partial summary
judgment, the City argues that certain of plaintiffs'
assertions of fact are not supported by citations to
admissible evidence pursuant to Federal Rule of Civil
Procedure 56(c) (Dkt. No. 46, ¶¶ 5, 15, 24).
Plaintiffs submit that their statements are supported by
citation to the record evidence, in particular citations to
the City's answer, a letter submitted in support of the
motion for partial summary judgment, and the City's
responses to interrogatories (Dkt. No. 49-2, at 2, 8, 12-13).
Plaintiffs in turn argue that the City has not complied with
Rule 56(c)(1) (Id., at 2).
moving for, or opposing, summary judgment, must support the
party's assertions by citing to particular parts of
materials in the record. Fed.R.Civ.P. 56(c)(1)(A) (“A
party asserting that a fact cannot be or is genuinely
disputed must support the assertion by citing to particular
parts of materials in the record such as depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials”). A party may also show that a fact is
disputed or undisputed by “showing that the materials
cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed.R.Civ.P.
Court has considered the entirety of the record before it in
this action. Fed.R.Civ.P. 56(c)(3) (“The Court . . .
may consider other materials in the record.”). The
Court rejects the City's Rule 56(c) arguments in its
response to plaintiffs' statement of undisputed facts in
support of their motion for partial summary judgment.
Federal Rule Of Civil Procedure 56(d)
City argues in response to two of plaintiffs' statements
of undisputed material facts that, currently, it cannot cite
to portions of the record to dispute the facts alleged but
once discovery has been conducted, the record may show that
these facts are in dispute (Dkt. No. 46, ¶¶ 6, 7).
Federal Rule of Civil Procedure 56(d), if a nonmovant shows
by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition to a
motion for summary judgment, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue
any other appropriate order.
a general rule, summary judgment is proper only after the
nonmovant has had adequate time for discovery.”
Hamilton v. Bangs, McCullen, Butler, Foye & Simmons,
L.L.P., 687 F.3d 1045, 1049 (8th Cir. 2012) (internal
quotations omitted). “This option [under Rule 56(d)]
exists to prevent a party from being unfairly thrown out of
court by a premature motion for summary judgment.”
Id. at 1050. However, Rule 56 “does not
require trial courts to allow parties to conduct discovery
before entering summary judgment.” United States ex
rel. Small Bus. Admin. v. Light, 766 F.2d 394, 397 (8th
Cir.1985) (per curiam). Thus, district courts possess
“wide discretion in denying” Rule 56(d) motions.
Anzaldua v. Ne. Ambulance & Fire Prot. Dist.,
793 F.3d 822, 836 (8th Cir. 2015).
56(d) affidavit “must set forth specific facts further
discovery might uncover, or what information further
discovery might reveal.” Hamilton, 687 F.3d at
1049 (affirming denial of Rule 56(d) motion where district
court stayed discovery and then ruled on motion for summary
judgment, determining plaintiff failed to show what further
facts he would uncover through a Rule 56(d) extension). A
nonmovant seeking relief under Rule 56(d) must do more than
speculate that it may discover additional facts that would
overcome a motion for summary judgment, see Stanback v.
Best Diversified Prods., 180 F.3d 903, 911 (8th
Cir.1999), and must submit an affidavit showing
“‘what specific facts further discovery might
unveil.'” Id. (quoting Dulany v.
Carnahan, 132 F.3d 1234, 1238 (8th Cir.1997)).
“Where a party fails to carry [his] burden under Rule
[56(d)], ‘postponement of a ruling on a motion for
summary judgment is unjustified.'” Id.
(quoting Humphreys v. Roche Biomedical Labs., Inc.,
990 F.2d 1078, 1081 (8th Cir.1993)).
City failed to submit an affidavit or declaration explaining
what facts or information further discovery might uncover and
why it cannot present facts essential to justify its
opposition to plaintiffs' motion for partial summary
judgment at this time. As a result, the Court rejects the
City's arguments on this point.
Due Process Claims
claim that there are no disputed material facts with respect
to the issue of whether the City violated plaintiffs'
rights under the Due Process Clauses of the United States and
Arkansas Constitutions. Plaintiffs maintain therefore that
they are entitled to partial summary judgment as a matter of
law on these claims. The Court addresses each of
plaintiffs' due process claims in turn.