Berry v. City of Little Rock, No. LR-C-95-290.

CourtUnited States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
Writing for the CourtEISELE
Citation904 F. Supp. 940
PartiesDelanor BERRY, Jack Bennett, Elmer Jackson, and John Hutson, Perry Scroggins, Ricky Armstrong and all others similarly situated, Plaintiffs, v. The CITY OF LITTLE ROCK, Defendant.
Decision Date12 October 1995
Docket NumberNo. LR-C-95-290.

904 F. Supp. 940

Delanor BERRY, Jack Bennett, Elmer Jackson, and John Hutson, Perry Scroggins, Ricky Armstrong and all others similarly situated, Plaintiffs,
v.
The CITY OF LITTLE ROCK, Defendant.

No. LR-C-95-290.

United States District Court, E.D. Arkansas, Western Division.

October 12, 1995.


904 F. Supp. 941
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904 F. Supp. 942
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904 F. Supp. 943
Tell Scott Hulett, Little Rock, AR, for plaintiffs

Stephen R. Giles, City Attorney's Office, Little Rock, AR, for defendant.

ORDER

EISELE, District Judge.

Before the Court are defendant's Motion to Dismiss1 and plaintiffs' Motion for a Preliminary Injunction.2 The plaintiffs in this action are landlords and tenants who own or rent property within the bounds of the City of Little Rock ("City").3 The City's Code of Ordinances, Chapter 8, provides for building regulations which apply to all buildings in the City of Little Rock. Article V, The Housing Code ("Code"), applies to all residential housing within the City. The ordinance in issue is Ordinance No. 16,659 ("Ordinance")4 which provides for the systematic inspection of residential properties for the purpose of determining whether Code violations exist. Importantly, the Ordinance provides that:

"currently the City only inspects premises for housing code compliance upon complaint of suspected code violations; and
904 F. Supp. 944
... a significant amount of the City's housing stock is rental housing which is not maintained in code compliance by the owners because violations are not reported ... many housing code violations existing in the City will not be corrected by the owners unless the City initiates a periodic inspection program ... in the interest of health, safety and welfare of tenants and all citizens of the City of Little Rock, it is necessary that the City institute a program of systematic citywide inspection of rental housing units."

See Ordinance, lines 17-30.

Plaintiffs claim that the City implemented a housing code enforcement program5 that only targeted low income rental property and that, as a result, only low income property owners are forced into choosing between bringing their property into compliance with the Code or facing "condemnation".6 Plaintiffs further allege that other owner occupied structures or higher income rental structures are not systematically inspected and that there is no rational basis for the disparate treatment of the plaintiff owners as compared to owner occupiers.7

The plaintiffs allege that the owner plaintiffs have had to make repairs to their properties and have "accordingly suffered inordinate damages in the form of costs of labor and materials, while many of the code violation findings are unsupportable8 either in law or fact." Second Amended Complaint, para. 18. Plaintiffs allege that tenants have had to terminate their tenancies because they could not afford the "substantially higher rents" that were necessary "in order to compensate land owners for their repair costs" which has caused a displacement of low income tenants while high income tenants have not been similarly affected. See id at para. 24-25. Plaintiffs further allege that low income tenants have been forced out of rental properties by "condemnation actions." Thus, plaintiffs argue the Ordinance violates the Equal Protection Clause because it is selective, arbitrary and disparate against: (1) low income tenants; (2) owner/landlords as opposed to owner/occupiers; and (3) low income property owners; and that the Ordinance, by its express terms is unconstitutional.9

I. Standing

Before the motion for a preliminary injunction can be considered, the Court must decide the defendant's motion for dismissal based upon the plaintiff tenants lack of standing10 and the plaintiffs failure to state a claim upon which relief may be granted.11

The standing inquiry focuses on "whether the litigant is entitled to have the court decide the merits of the dispute of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Standing does not focus on the merits but is a preliminary jurisdictional requirement necessary to establish that a litigant is entitled to judicial action.12 When standing

904 F. Supp. 945
is challenged on the basis of pleadings, the Court accepts as true all material allegations of the complaint and construes the complaint in favor of the complaining party. Pennell v. City of San Jose, 485 U.S. 1, 7, 108 S.Ct. 849, 855, 99 L.Ed.2d 1 (1988). Constitutionally, a plaintiff can only have standing if he satisfies the "case or controversy" requirement of Article III. See generally Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). The Supreme Court has established that for a plaintiff to satisfy the Article III standing requirement, he/she must pass a three-pronged test: first, the plaintiff must have suffered an "injury in fact;" second, there must be a causal connection between the injury and the conduct complained of; and third, it must be likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). The plaintiffs bear the burden of establishing these three elements. Burton v. Central Interstate LLRWC Com'n, 23 F.3d 208, 209 (8th Cir.1994)

In addition to these constitutional requirements, there are three prudential limits on standing. First, the plaintiff must assert his own legal rights and interests, and cannot rest his claim on the legal rights of others. Valley Forge, Etc. v. Americans United, Etc., 454 U.S. 464, 474, 102 S.Ct. 752, 760, 70 L.Ed.2d 700 (1982). Second, the federal courts will not adjudicate abstract questions of wide public significance which amount to generalized grievances. Id. Third, the plaintiff's complaint must fall within the zone of interest to be protected or regulated by the statute or constitutional guarantee in question. Id.

The first prong of the test, the "injury-in-fact" limitation, mandates that the injury satisfy four requirements. First, the injury must be to a "legally protected interest." Lujan, 504 U.S. at 560, 112 S.Ct. at 2136. Second, the interest must be "particularized" to the plaintiff. Id. Third, the injury must be likely to occur, not merely speculative. City of Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 1669, 75 L.Ed.2d 675 (1983). Finally, the injury must either be actual or imminent. Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1722, 109 L.Ed.2d 135 (1990).

Here, all plaintiffs allege an interest in the equal protection of the laws. This is a legally protected interest. See Northeastern Fla. Contractors v. Jacksonville, 508 U.S. 656, ___, 113 S.Ct. 2297, 2303, 124 L.Ed.2d 586 (1993) (reversing the Court of Appeals denial of standing and noting prior cases that granted standing due to an injury to a person's interest in equal protection of the laws). However, the injury must also be "particularized" meaning that the injury must affect the plaintiff in a personal and individual way. Lujan, 504 U.S. at 561 n. 1, 112 S.Ct. at 2136 n. 1. To affect the plaintiff in an individual way the injury must occur specifically to the plaintiff. See Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 1365-66, 31 L.Ed.2d 636 (1972) (requiring the party seeking review to be among the injured). Said differently, the plaintiff must have a "personal stake" in the outcome of the case. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).

The plaintiff owners13 satisfy the injury in fact requirement because they argue that they were injured by the Ordinance in one of two ways: (1) the Ordinance has caused tenants to terminate their tenancies (lost rental income), and (2) administration of the Ordinance has uncovered Code violations which, in turn, have resulted in plaintiff owners being required to make repairs to rental properties (damage being cost of labor and materials). These injuries are actual, non-speculative in nature, and personally affect the plaintiff owners.

The plaintiff tenants'14 alleged injuries do not meet the "injury in fact" standard.

904 F. Supp. 946
The plaintiff tenants argue that they were injured by the Ordinance in one of four ways: (1) by being forced to pay higher rents to compensate the plaintiff owners for repairs made, (2) by being forced out of the property by "condemnation" or threatened "condemnation action," (3) the costs of relocating, (4) the threatened or actual entry into their leasehold.15

The plaintiff tenants have not alleged any specific incidents of any of the above injuries. Importantly, the plaintiff tenants have not alleged a specific instance where the City transcended its authority in terms of accessing properties to conduct inspections.16 Instead, the following general allegations were made: (1) inspections were commenced without the permission of the owners or their tenants, (2) that several inspection officers informed many of the tenants that they would force entry into their tenements by use of a search warrant if necessary, (3) that tenants were informed that the property they were renting was going to be "closed down" and that they would need to relocate.17 As pled, these injuries do not affect the plaintiff tenants in an individual way but are instead generalized injuries, not "particularized" to the plaintiff tenants. An individual who alleges a generalized grievance (i.e. an injury shared by many but not suffered by the population as a whole) satisfies the Constitution's personal stake requirement but may be insufficient for standing. See Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 80, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978) (denying standing due to "prudential concerns" about hearing "generalized grievances"). The injury is also speculative in that there is not a clear cause and effect...

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5 practice notes
  • Carlson v. City of Duluth, Civil No. 13–1831 (MJD/LIB).
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • July 18, 2013
    ...its constitutionality, rather than to violate the law and await an enforcement action.”); see also Berry v. City of Little Rock, 904 F.Supp. 940, 945–46 (E.D.Ark.1995) (finding that plaintiff owners of a property had standing to challenge an ordinance because they suffered financial injurie......
  • Jones v. Wildgen, No. CIV.A.03-2369-KHV.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • December 14, 2004
    ...protection challenge, city need only show ordinance rationally related to legitimate state interest); Berry v. City of Little Rock, 904 F.Supp. 940, 943, 948-49 (E.D.Ark.1995) (relying on ordinance statement that rental inspections needed to further interest of health, safety and welfare of......
  • Allnew v. City of Duluth, Civ. No. 97-187 (MJD/RLE).
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • June 2, 1997
    ...conduct complained of, which is not directly traceable to the independent conduct of the Andersons. See, Berry v. City of Little Rock, 904 F.Supp. 940, 946-47 (E.D.Ark.1995), aff'd, 94 F.3d 648 (8th Cir.1996) (Table). In reality, whether the Plaintiff ultimately risks an eviction is directl......
  • Mariemont Apartment Assn. v. Mariemont, 2007 Ohio 173 (Ohio App. 1/19/2007), Appeal No. C-050986.
    • United States
    • United States Court of Appeals (Ohio)
    • January 19, 2007
    ...at paragraph one of the syllabus; Cleveland v. Grice (Oct. 6, 1994), 8th Dist. No. 66898. 31. Berry v. Little Rock (E.D.Ark.1995), 904 F.Supp. 940, 949, affirmed without opinion (C.A.8, 1996), 94 F.3d 648 32. Id at 949; Anders v. Norristown (Oct. 22, 1997), E.D.Pa. No. 97-CV-2026. 33. Lakew......
  • Request a trial to view additional results
5 cases
  • Carlson v. City of Duluth, Civil No. 13–1831 (MJD/LIB).
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • July 18, 2013
    ...its constitutionality, rather than to violate the law and await an enforcement action.”); see also Berry v. City of Little Rock, 904 F.Supp. 940, 945–46 (E.D.Ark.1995) (finding that plaintiff owners of a property had standing to challenge an ordinance because they suffered financial injurie......
  • Jones v. Wildgen, No. CIV.A.03-2369-KHV.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • December 14, 2004
    ...protection challenge, city need only show ordinance rationally related to legitimate state interest); Berry v. City of Little Rock, 904 F.Supp. 940, 943, 948-49 (E.D.Ark.1995) (relying on ordinance statement that rental inspections needed to further interest of health, safety and welfare of......
  • Allnew v. City of Duluth, Civ. No. 97-187 (MJD/RLE).
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • June 2, 1997
    ...conduct complained of, which is not directly traceable to the independent conduct of the Andersons. See, Berry v. City of Little Rock, 904 F.Supp. 940, 946-47 (E.D.Ark.1995), aff'd, 94 F.3d 648 (8th Cir.1996) (Table). In reality, whether the Plaintiff ultimately risks an eviction is directl......
  • Mariemont Apartment Assn. v. Mariemont, 2007 Ohio 173 (Ohio App. 1/19/2007), Appeal No. C-050986.
    • United States
    • United States Court of Appeals (Ohio)
    • January 19, 2007
    ...at paragraph one of the syllabus; Cleveland v. Grice (Oct. 6, 1994), 8th Dist. No. 66898. 31. Berry v. Little Rock (E.D.Ark.1995), 904 F.Supp. 940, 949, affirmed without opinion (C.A.8, 1996), 94 F.3d 648 32. Id at 949; Anders v. Norristown (Oct. 22, 1997), E.D.Pa. No. 97-CV-2026. 33. Lakew......
  • Request a trial to view additional results

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