Filed: Aug. 11, 2017
Latest Update: Mar. 03, 2020
Summary: Case: 16-31229 Document: 00514112620 Page: 1 Date Filed: 08/11/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 16-31229 August 11, 2017 Summary Calendar Lyle W. Cayce Clerk WAYNE WALKER, as Administrator of the Successions of Arnette Calhoun Spells, Sr. and Arnette Calhoun Spells, Jr., Plaintiff - Appellant v. NEW ORLEANS CITY, Defendant - Appellee Appeal from the United States District Court for the Eastern District of Loui
Summary: Case: 16-31229 Document: 00514112620 Page: 1 Date Filed: 08/11/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 16-31229 August 11, 2017 Summary Calendar Lyle W. Cayce Clerk WAYNE WALKER, as Administrator of the Successions of Arnette Calhoun Spells, Sr. and Arnette Calhoun Spells, Jr., Plaintiff - Appellant v. NEW ORLEANS CITY, Defendant - Appellee Appeal from the United States District Court for the Eastern District of Louis..
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Case: 16-31229 Document: 00514112620 Page: 1 Date Filed: 08/11/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 16-31229 August 11, 2017
Summary Calendar
Lyle W. Cayce
Clerk
WAYNE WALKER, as Administrator of the Successions of Arnette Calhoun
Spells, Sr. and Arnette Calhoun Spells, Jr.,
Plaintiff - Appellant
v.
NEW ORLEANS CITY,
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:15-CV-3823
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
The opinion issued July 13, 2017 is withdrawn, and the following is
substituted therefor:
Plaintiff–Appellant Wayne Walker, as administrator of the successions
of Arnette Calhoun Spells, Sr. and Arnette Calhoun Spells, Jr., appeals the
district court’s dismissal of his 42 U.S.C. § 1983 claim for lack of standing.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-31229 Document: 00514112620 Page: 2 Date Filed: 08/11/2017
No. 16-31229
Walker sued the City of New Orleans after it imposed fines for code violations
by a property owned by the Spellses and ordered the property demolished. We
AFFIRM.
This dispute centers on property located on Baronne Street in New
Orleans. The record owners of the property are Arnett Calhoun Spells, Sr. and
Arnett Calhoun Spells, Jr., despite the fact that the Spellses died in 1998 and
2008, respectively. After an inspection of the property revealed numerous city
code violations, the City scheduled an administrative hearing regarding the
violations for August 14, 2014. The City sent notice of the hearing via certified
mail to the Spellses, the owners of record, as required by city code, but the
notice was returned as undeliverable (unsurprisingly, given that the Spellses
were deceased). At the hearing, where no representatives of the property
appeared, the City levied $3,300 in fines for the various code violations (with
the possibility of additional fines of $500 per day for up to one year), along with
$155 in fees. The hearing officer also ordered the property demolished.
A year later, on August 27, 2015, four individuals purporting to be the
“presumptive heirs” of the Spellses filed this suit under § 1983 against the
City, claiming that the hearing judgment deprived them of property without
due process, rendering the judgment “an absolute nullity.” Although the suit
was initially brought in the names of these four individuals, they were later
substituted by one plaintiff: Wayne Walker, in his capacity as Administrator
of the Successions of Arnette Calhoun Spells, Sr. and Arnette Calhoun Spells,
Jr. (the succession administrator).
On October 3, 2016, the district court granted the City’s motion to
dismiss under Federal Rule of Procedure 12(b)(1) for lack of subject matter
jurisdiction because it concluded that the succession administrator did not
have standing to bring the § 1983 claim. The succession administrator moved
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No. 16-31229
for reconsideration, which the district court also denied. The succession
administrator timely appeals.
The succession administrator argues on appeal that he has standing, and
thus, the district court erred in dismissing his claim. We review a district
court’s dismissal de novo and may affirm it on any basis supported by the
record. Morris v. Thompson, 852 F.3d 416, 419 (5th Cir. 2017); Raj v. La. State
Univ.,
714 F.3d 322, 330 (5th Cir. 2013). The succession administrator brought
this suit under § 1983. Standing to bring a § 1983 claim “is guided by 42 U.S.C.
§ 1988, which provides that state common law is used to fill the gaps in
[§ 1983’s] administration.” Pluet v. Frasier,
355 F.3d 381, 383 (5th Cir. 2004).
Thus, in order to have statutory standing to bring a § 1983 claim on behalf of
another, a plaintiff “must have standing under the state wrongful death or
survival statutes.”
Id. If a plaintiff does not have statutory standing, he lacks
a cause of action, see Malvin v. Dulluniversita,
840 F.3d 223, 229–30 (5th Cir.
2016), and the action should be dismissed under Federal Rule of Procedure
12(b)(6), see Harold H. Huggins Realty, Inc. v. FNC, Inc.,
634 F.3d 787, 795 n.2
(5th Cir. 2011) (“Unlike a dismissal for lack of constitutional standing, which
should be granted under Rule 12(b)(1), a dismissal for lack of . . . statutory
standing is properly granted under Rule 12(b)(6).”).
Applying these principles, the succession administrator does not have
standing to bring this § 1983 suit and thus lacks a cause of action. Under
Louisiana law, a succession administrator lacks standing to bring a wrongful
death action. See La. Civ. Code Ann. art. 2315.2 (listing the persons who may
bring a wrongful death action, which does not include a succession
administrator). Accordingly, the succession administrator lacks statutory
standing to bring this § 1983 action and thus does not have a cause of action.
Although the district court dismissed on the basis of lack of subject matter
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No. 16-31229
jurisdiction, we affirm because dismissal was nevertheless proper under Rule
12(b)(6).
The succession administrator’s arguments to the contrary are meritless
because they overlook the fact that the sole named plaintiff in this case is the
succession administrator. The succession administrator argues that the
presumptive heirs need not rely on his standing to bring a wrongful death
action because the presumptive heirs have standing in their own right, given
that their property was taken. However, the individual presumptive heirs are
no longer named as plaintiffs in this case; thus, whether they have standing to
bring suit is not relevant. The succession administrator appears to argue that
the succession administrator being the named plaintiff is a mere technicality
because a judgment of possession has not yet been rendered, but we abide by
the principle that the only parties to an action are those listed in the caption. 1
See Fed R. Civ. P. 10(a) (requiring all parties’ names to appear in caption).
Because the sole plaintiff named in the caption, the succession administrator,
lacks standing, this action was properly dismissed. 2 The judgment of the
district court is AFFIRMED.
1 We note that the succession administrator at no point moved to resubstitute the
original four individual plaintiffs as the plaintiffs in this case.
2 Because we affirm the district court’s dismissal on this basis, we do not address the
succession administrator’s other arguments.
4
