MYRON H. THOMPSON, District Judge.
Plaintiff James Ashe charges in this lawsuit that his property was confiscated, purportedly as a public nuisance, in violation of both federal and state law. His federal claims are based on 42 U.S.C § 1983 and assert that defendants City of Montgomery,
This case is now before the court on the City of Montgomery's and Tony's Automotive's motions for summary judgment. Summary judgment will be granted in favor of the city and Tony's Automotive as to the federal claims, and the state claims against Tony's Automotive will be remanded to state court.
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). Under Rule 56, the court must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
This case arises from two separate city proceedings to abate a public nuisance on Ashe's property. The events related to the proceedings are set out below.
• April 23, 2007: The Montgomery City Inspections Department received a complaint regarding junk vehicles parked in Ashe's yard. After investigating the complaint and determining it to be valid, a city inspector placed a sign on Ashe's property and mailed written notice to his home address,
• May 22: The city re-inspected the property and found the nuisance had not been abated.
• May 23: A second notice was sent to Ashe, stating that a public hearing would be held before the city council on June 5, at which time the council would vote on a resolution authorizing the city to abate the nuisance. Ashe was also instructed to file any objection to the proceeding with the city clerk five days before the council meeting and to appear before the council and explain why the objection should be sustained. The notice further stated that, "Failure either to file an objection with the City Clerk or to appear before the City Council shall constitute a waiver of any rights you may have to contest the abatement or removal of the nuisance." Def.'s Ex. 4 (Doc. No. 16-4).
• June 5: The hearing was held as scheduled, and the council adopted a resolution declaring Ashe's property a public nuisance subject to abatement. Ashe did not attend the hearing; nor did he submit any objection to the abatement procedure.
• August 7, 2007: No further action was taken by either party until this date, when the city received another complaint against Ashe, concerning litter, junk, and trash in Ashe's yard. Again, in accordance with city law, a sign was placed in Ashe's yard and a notice mailed to his residence, both of which stated that he had ten days, until August 18, to abate the nuisance.
• August 22: The property was re-inspected and the inspector found Ashe had failed to clean his property.
• August 23: A second notice was mailed to Ashe, advising him of a public hearing before the city council on September 4.
• September 4: At the hearing, the city council passed a resolution authorizing the city to abate the nuisance. Again, Ashe did not attend the hearing or object to the resolution.
• September 22: According to Ashe, a city inspector visited Ashe's residence and gave him three additional days to clean his yard, which Ashe did with the help of his neighbor and sons.
• October 16: Asserting that they did not have the proper paperwork and that the nuisance had already been abated, Ashe refused to allow city inspectors or abatement agents on his property. Three Montgomery City Police Department Officers were then called to oversee the process. Ashe continued to resist, and the police officers handcuffed him and pushed him to the ground, injuring his head in the process. Using a dump truck, city agents removed Ashe's personal property, including lumber, an iron door, an antique wood-burning stove, and other furniture items; Tony's Automotive, as an agent of the city and at the direction of the inspectors, removed several vehicles, though, according to Ashe, the vehicles were tagged and in working condition.
As a result of the two abatement proceedings against him, Ashe filed a complaint in state court against the City of Montgomery and Tony's Automotive. Tony's Automotive was named in its capacity as an abatement agent for the city. The case was subsequently removed to federal court. The city and Tony's Automotive now move for summary judgment.
Ashe claims he suffered a taking without just compensation, in violation of the Fifth Amendment,
Here the city removed Ashe's personal property in an abatement action that was sanctioned by the city's representatives and authorized under a state law that provides that "all cities and towns of this state shall have the power to prevent injury or annoyances from anything dangerous or offensive or unwholesome and to cause all nuisances to be abated and assess the cost of abating the same against the person creating or maintaining the same." 1975 Ala.Code § 11-47-117. Ashe does not suggest, and there is nothing in the record to indicate, that the city acted beyond the scope of its police authority in abating the nuisance. In fact, he admits that by placing signs in his yard and mailing written notices, the city was exercising its power in accordance with city law for the abatement of a public nuisance. Accordingly, because the city was within its legal rights in removing Ashe's belongings, summary judgment will be granted on his takings claim.
Ashe asserts violations of both his substantive and procedural due-process rights under the Fourteenth Amendment. The Fourteenth Amendment ensures that, "No State shall . . . deprive any person of life, liberty or property, without due process of law." U.S. Const. Amend. XIV. The substantive component of the Due Process Clause recognizes those "rights that a state may not remove, regardless of the process, as well as actions that can not be countenanced, regardless of the appropriateness
Ashe's procedural due-process claim fails as well. Though the city had a right under municipal and state law to cure the public nuisance, it was required to ensure proper procedural safeguards in effectuating the abatement. As this court stated in Ellis v. City of Montgomery, 460 F.Supp.2d 1301, 1304 (M.D.Ala.2006) (Thompson, J.), a procedural due-process analysis entails a three-step inquiry: "First, did the plaintiff have a constitutionally protected property interest? Second, did the government deprive the plaintiff of that interest? Third, did the government employ constitutionally adequate procedures prior to the deprivation—that is, did the plaintiff receive the process he was due?" There is no question that Ashe had a constitutionally protected interest in his personal property, including the vehicles that Ashe contends were properly registered with the State of Alabama but removed by the city. It is also uncontested that the city deprived Ashe of this protected interest when it removed his personal property from his yard. What the parties do dispute is whether the procedures used to effect this deprivation were "fair and adequate under the Constitution." Id. (citing United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ("[G]overnment action depriving a person of life, liberty, or property ... must ... be implemented in a fair manner.")).
The crux of this suit is whether Ashe received proper notice prior to being deprived of his possessions by the city. Ashe sets forth several arguments as to why the city failed to notify him adequately of the pending abatement action. An inadequate-notice claim is analyzed under the reasonableness standard set forth in the seminal due-process case of Mullane v. Central Hanover Bank & Trust Co., which states that, "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). See also Ellis, 460 F.Supp.2d at 1304.
In contesting the city's procedures, Ashe argues that he received neither a first nor a second notice of the nuisance action that was initiated in April 2007, and he denies that his property was re-inspected on May 23. As to the second nuisance action, commenced in August 2007, Ashe admits he received a preliminary notice of the nuisance complaint, which was mailed on August 8, but he contends that this notice failed to set a deadline by which he had to abate the nuisance; he also argues that the city did not re-inspect his property on August 22, as so indicated by the city records. While Ashe concedes that the city held public hearings on the nuisance complaints, he states that he "was unaware" of these proceedings before they took place. Pl's Br. at 2 (Doc. No. 29). Ashe concludes by noting "there has been no proof that said notices were mailed or that the recorded property owners received said notice," and "it is disputed what notices were sent ... [as] he did not receive the overwhelming majority of them." Id. at 8.
After reviewing the record, the court finds that Ashe's arguments fail. Under the business records exception to the hearsay rule, the court considers the city's proffered records for the truth of the matters asserted therein. See Fed.R.Evid. 803(6) ("The following are not excluded by the hearsay rule, even though the declarant is available as a witness: ... (6) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness."); see also Itel Capital Corp. v. Cups Coal Co., Inc., 707 F.2d 1253, 1259 (11th Cir.1983) ("[U]nder Federal Rule of Evidence 803(6), documents made and
The record reflects that the city did the following: Nuisance proceedings were initiated against Ashe after the city received complaints from Montgomery residents regarding Ashe's property. See Def.'s Exs. 1 and 6 (Doc. No. 16-4). Ashe was notified of his offenses on four separate occasions: April 24, 2007 (Def.'s Ex. 3) (Doc. No. 16-4); May 23, 2007 (Def.'s Ex. 4) (Doc. No. 16-4); August 8, 2007 (Def.'s Ex. 8) (Doc. No. 16-4); and August 23, 2007 (Def.'s Ex. 9) (Doc. No. 16-4). The letters sent on April 24 and August 8 set forth the specific deadlines by which Ashe was required to abate the nuisance, and the May 23 and August 23 documents notified Ashe of the upcoming city council hearings and informed him he was allowed to object to the abatement proceedings. The records also confirm that city inspectors completed both initial inspections and re-inspections of Ashe's property, so that Ashe had the opportunity to improve the state of his yard before the official abatement took place.
There is no factual doubt as to the trustworthiness of these documents, as Chief Property Maintenance Inspector Thomas Karrh submitted an affidavit swearing that the records submitted by the city were maintained by the City of Montgomery Inspections Department, "made and kept in the ordinary course [of] business," where Karrh is the regular custodian of such records. Karrh Aff. (Doc. No. 16-4). Additionally, each document is dated and time-stamped. Karrh also attested to the city's official procedures in the abatement of a public nuisance, stating: It is "the policy and procedure of the City of Montgomery Inspections Department to have an inspector appear at each city council meeting to offer evidence of the existence of a nuisance. The evidence is presented to the City Council, the owner of the property in question is provided an opportunity to be heard and the Council votes on whether there is evidence to support issuance of a resolution designating a public nuisance." Id. Karrh confirmed the accuracy of the records that notified Ashe of the nuisance and advised him of his right to contest the city's proceedings.
Despite the record evidence, Ashe maintains that he failed to receive many of the notices sent by the city regarding his property. However, even in the unlikely event that Ashe did not receive those directives, that fact does not establish a constitutional violation. Procedural due-process analysis is concerned with whether the proceedings were "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Ellis, 460 F.Supp.2d at 1304. Here the city followed all requisite procedures set forth under Ordinance 28-2002 and, as evinced by the city inspectors' numerous in-person visits and telephone calls, it went above and beyond to ensure that Ashe was notified of the nuisance complaints, was aware of his duty to abate the nuisance, and was apprised of his right to object to the proceedings at designated council hearings.
While there are admittedly circumstances where the U.S. Constitution may require more process than that provided under a municipality's local law, see Logan v. Zimmerman Brush Co., 455 U.S. 422, 432, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) ("[B]ecause `minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures
Ashe raises several additional but related arguments in his opposition to summary judgment. First, he argues that notice was not properly provided to Nelline Thrasher, who also lives at Ashe's residence. The city's record of ownership shows that both James Ashe and Nelline Thrasher reside at the residence in question. Under Montgomery policy, the city was required to "cause a written notice to be mailed by first class mail to the occupant at the address of the property upon which the nuisance exists." Ord. § 12-62(a) (Doc. No. 16-3). There is no requirement that multiple copies of the notice be sent to a private residence with more than one occupant. Even if the mailing procedures were inadequate in this regard, however, the city did post two conspicuous signs, entitled "Notice to Abate Nuisance," in the property yard, which should have put Thrasher on notice. Furthermore, because Thrasher is not a party to this litigation, Ashe lacks standing to contest the procedural inadequacies of the city's notification process on her behalf. See, e.g., Haitian Refugee Center v. Gracey, 809 F.2d 794, 809 (D.C.Cir.1987) ("Third party standing [ ] is appropriate only when the third party's rights protect that party's relationship with the litigant. Thus, a litigant may not be given third party standing to assert constitutional rights of third parties that do not protect a relationship, such as procedural due-process rights. A litigant therefore could never have standing to challenge a statute solely on the ground that it failed to provide due process to third parties not before the court."). Thrasher's due-process rights do not create a genuine issue of fact as to Ashe's claim.
Ashe also asserts that, because the notice did not identify the vehicles that were subject to abatement, he never received prior notification that the vehicles removed by the city constituted a nuisance. Ashe acknowledges he received some warning of the pending removal action, admitting he had "contact with Inspector Smith on a semi-regular basis regarding his automobiles," as well as "a phone conversation with Inspector Eddie Hill prior to the abatement." Pl.'s Br. at 5-6 (Doc. No. 29). He also "received oral and written notice in regards to his August 7, 2007 encounter with the City Inspector, who at the time of [his] visit placed a sign in [Ashe's] yard." Id. at 7. However, Ashe argues these notification procedures were not "reasonably calculated to provide which vehicles were subject to seizure," id., as they did not indicate either the make or model of the offending automobiles. Referring to the city's April 24 notice, which informed Ashe that his "junk vehicles" constituted a public nuisance "in violation of Municipal Ordinance 28-2002," Def.'s Ex. 3 (Doc. No. 16-4), he points specifically to a handwritten notation on the form, which states simply
Ashe's argument is unavailing. The April 24 notice, which clearly advised that he remove the "junk vehicle(s)" or any "motor vehicles" parked in his yard and undergoing repair, adequately warned him that he was responsible for moving any vehicles fitting this specific description. Id. Furthermore, the evidence suggests that the barely decipherable "Brown Chevy" notation was merely a "follow-up" note written by the City Inspection Department for internal use and was not intended to serve as part of the original notice to Ashe. Def.'s Br. at 2 (Doc. No. 30).
Similarly, Ashe contends that, because the notifications he received during the second nuisance action in August 2007 did not contain any reference to his vehicles, the cars were removed without notice in violation of due process. It is true that the notices sent on August 8 and 23 do not refer to Ashe's cars; instead, they state that his property has been classified as a nuisance due to the "accumulation of litter, junk [and] trash" in his yard. Def.'s Exs. 8 and 9 (Doc. No. 16-4). However, the city argues that, because the city council had already passed a resolution finding that Ashe's vehicles constituted a nuisance under local law and had provided Ashe with the requisite notice in that action (in April and May 2007), it was under no obligation to repeat its efforts when instituting a second, and separate, nuisance action three months later. The court concurs. Ashe was provided with notice as to the vehicular nuisance, and the city did not have to "remind" him of the resolution in a subsequent nuisance action. He had already received two written notifications and a posted warning, as well as various oral reminders by Inspection Department agents, that his vehicles had to be removed from his yard. This was clearly adequate notice.
Ashe also asserts that, after speaking with a city inspector on August 7, he "elicited the paid help" of his neighbor and sons to clean his property to bring it in compliance with the code. Pl.'s Br. at 7 (Doc. No. 29). He denies that a second inspection occurred on August 22, but rather contends that the city took no further action until it initiated abatement procedures on October 16. Consequently, he argues that he had a right to re-inspection of the property prior to final abatement.
In addition, he contends that the abatement action took place well after the time allotted by city law. He states that, under Ordinance 28-2002 § 12-134, abatement must occur no more than 17 days after the city council declares the property a nuisance, while the city here waited over one month after the passage of the second resolution to send abatement agents to his residence.
As a preliminary matter, the court notes that its responsibility is to determine whether the abatement procedures put in place are constitutionally adequate. Whether the city complied with state law is not at issue here; rather, the question is whether the city's procedures pass constitutional muster. Overall, as stated, the procedures providing for notice and adjudication
As to Ashe's argument that the August inspection did not occur, the court has two responses. First, even if it did not occur, there is no question, as the court has already indicated, that the overall procedure gave him adequate notice and was otherwise fair. Second, as to whether in fact it did occur, that is a matter of state law and not federal law.
Ashe also appears to argue that, because four months passed between the first resolution and the abatement, and over one month passed between the second resolution and the abatement, he was entitled to a re-inspection before the city confiscated his property. Per ordinance 28-2002 § 12-63, however, he was not entitled to a subsequent inspection after the city passed either of the resolutions and acquired full jurisdiction over the matter by democratic process. See Ord. § 12-63(b) (Doc. No. 16-3) (stating that the city council "by passage of the resolution, shall be deemed to have acquired jurisdiction to proceed and to perform or have performed the work of removal or abatement with respect to the property," and that the council's decision on the matter "shall be deemed final and conclusive."). Ashe was given notice and opportunity to correct each nuisance prior to the hearings, and to attend the hearings and dispute before the city council the basis for declaring a nuisance. He chose neither of those paths, opting instead to challenge legitimate procedures after the fact. The record indicates that the city provided him with the requisite number of inspections and opportunities to contest the city's findings. Because Ashe presents no other evidence that he lacked proper time or opportunity to ameliorate the conditions of his property, his objection to the inspection process will not stand.
As to his argument that the city failed to conduct the abatement action in the legal time-frame, this contention also lacks merit, for there is no such requirement in the relevant ordinance. Instead, § 12-63 states merely that, upon appointment, the "registered nuisance abatement agents shall have ten days to abate the nuisance and 15 days to submit the bill to the housing office." Ord. § 12-63(d) (Doc. No. 16-3). Ashe does not show, or even suggest, that the abatement agents here failed to act within the requisite ten-day period after being appointed by the city. In any event, even if the city failed to comply with its time requirement, this is a state violation, not a federal one.
Finally, Ashe asserts that, regardless of the process used, the abatement of his vehicles was unwarranted, as they "were operable, with [ ] current tag[s] and tires, inflated, not parked in the front yard, and within the exception for sale." Pl.'s Br. at 5 (Doc. No. 29). The records show, and it has been stated repeatedly in this opinion, that Ashe had a fair opportunity to contest the declaration of his property as a nuisance before the proper channels of government. He did not do so and cannot now seek redress—and a second bite of the apple—before this court. This challenge is also outside of this court's purview because it is an argument based on how the given procedures were followed and not whether those procedures were constitutionally adequate. Should Ashe believe that the city incorrectly removed operable vehicles that were illegally parked, then he should seek redress in state court. This court, in considering federal claims, does not sit as a general board of review of the actions of the City of Montgomery.
Ashe charges in his complaint that Tony's Automotive's actions constituted a taking in violation of the Fifth Amendment. Comp. ¶ 20 (Doc. No. 1-1). He also claims that "Tony's Automotive['s] acts were unlawful because the City of Montgomery actions were unlawful and without notice in violation of the 14th Amendment." Pl.'s Reply. Br. at 2 (Doc. No. 40). The court will assume that Tony's Automotive was a state agent. See National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988); West v. Atkins, 487 U.S. 42, 55-56, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 296, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). Nevertheless, for the same reasons the city did not violate Ashe's Fifth Amendment or Fourteenth Amendment rights, Tony's Automotive is also free from liability. Thus, summary judgment will be granted in favor of Tony's Automotive on these constitutional claims.
Ashe claims that, though Tony's Automotive acted as an agent of the City of Montgomery, it "was without authority and was acting outside of the scope of [its] agency" when it removed several of his vehicles, while the resolution and notice specified only one vehicle—a Brown Chevy with no tires. Pl.'s Reply Br. at 2 (Doc. No. 40). Ashe therefore charges Tony's Automotive with trespass. He also claims Tony's Automotive's driver acted negligently and wantonly by failing to look behind the truck when backing up, thereby pinning Ashe between his car and the truck and injuring him. Comp. ¶¶ 28-29 (Doc. No. 1-1). Because summary judgment has been granted on all federal claims in this case, the court declines, pursuant to 28 U.S.C. § 1367(c)(3), to exercise supplemental jurisdiction over the remaining state claims. Accordingly, Ashe's state claims will be remanded. See Myers v. Central Florida Investments, Inc., 592 F.3d 1201, 1227 (11th Cir.2010) (stating that "federal district courts in removal cases must remand, rather than dismiss, state claims over which they decline to exercise supplemental jurisdiction").
For the foregoing reasons, summary judgment will be granted in favor of the City of Montgomery and Tony's Automotive, LLC on all of Ashe's federal claims, and Ashe's state claims against Tony's Automotive will be remanded to state court. An appropriate judgment will be entered.
