Light v. Blackwell

CourtUnited States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
Citation472 F. Supp. 333
Docket NumberNo. LR-C-76-12.,LR-C-76-12.
PartiesRobert LIGHT and Cherry Light v. Lawrence BLACKWELL, J. C. Patterson, George Kell, James A. Branyan, David Solomon, Henry Gray, B. K. Cooper, Don Cahoone and Jim Gee.
Decision Date01 June 1979

Philip E. Kaplan, Little Rock, Ark., for plaintiffs.

Kenneth R. Brock, Legal Dept., Ark. Highway Dept., Little Rock, Ark., for defendants.

MEMORANDUM OPINION

ROY, District Judge.

This is an action brought by plaintiffs, Robert Light and Cherry Light, against defendants, Lawrence Blackwell, J. C. Patterson, George Kell, James A. Branyan and David Solomon, who constitute the members of the Arkansas State Highway Commission. The Arkansas State Highway Commission is a constitutionally created agency of the State of Arkansas. The defendants Henry Gray, B. K. Cooper, Don Cahoone and Jim Gee, are respectively, the Director of Highways, Chief Engineer, District Engineer, and Assistant District Engineer of the Arkansas State Highway Department, which is an agency of the State of Arkansas under the control and direction of the Arkansas State Highway Commission. The State of Arkansas as such has not been named a party defendant in this cause.

The plaintiffs' brief summarizes the allegations of the complaint as follows:

The official conduct concerning which complaint is made is the taking of plaintiffs' property without just compensation, and the continuing torts of trespass, maintenance of a nuisance and unreasonably depriving plaintiffs of natural lateral support for their property. Relief sought, pertinent to this point, is an injunction restraining further trespass and a mandatory injunction requiring defendants to abate the nuisance and restore the lateral support.

Plaintiffs' brief also states the action is willful, recurring and "presents a classic case for jurisdiction under § 1983".

The defendants have filed a Motion to Dismiss alleging the following as grounds for dismissal of the action:

1. To dismiss the action against the defendants because plaintiffs' complaint constitutes a suit against the State of Arkansas in violation of the Eleventh Amendment to the Constitution of the United States.
2. To dismiss the action as to the defendants because of the failure of the plaintiffs' complaint to adequately allege personal involvement on the part of the defendants which is essential in an action under 42 U.S.C. § 1983.
3. To dismiss the action against the defendants for failure of the plaintiffs' complaint to state a constitutional violation invoking jurisdiction under 42 U.S.C. § 1983.

Defendants' Point No. 1 of the Motion to Dismiss contends the action is barred by the Eleventh Amendment to the Constitution of the United States, even though the State is not a named party in this action. In support of their position the defendants cite Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and call this Court's attention to the Supreme Court's statement on page 663, 94 S.Ct. on pages 1355-1356 of its opinion which reads:

It is also well established that even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment. In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), the Court said:
`When the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.' Id., at 464, 65 S.Ct., at 350.
Thus the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment. Great Northern Life Insurance Co. v. Read, 322 U.S. 47 64 S.Ct. 873, 88 L.Ed 1121 (1944); Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573 66 S.Ct. 745, 90 L.Ed. 862 (1946).

Notwithstanding the above quotation from Edelman, it is quite apparent that under recent pronouncements of the United States Supreme Court and the Eighth Circuit Court of Appeals the broad protection once assured the states by the Eleventh Amendment is practically nonexistent now. The Doctrine of States Rights has indeed become seriously impaired, but this Court does not know of any case in which a federal court has extended its jurisdiction to the far reaches requested by the plaintiffs herein. However, it is not necessary to discuss Point No. 1 in depth because the Court finds merit in defendants' Points No. 2 and No. 3.

The Court agrees that the complaint fails to adequately allege personal involvement on part of the defendants which is necessary for plaintiffs to maintain their action. In actions under 42 U.S.C. § 1983 the courts have found it necessary to impose special pleading limitations. The pleading limitations were found necessary in order to identify frivolous suits, and to prevent public officials from being subjected to vexatious actions. Personal involvement must be plead with factual specificity and bare allegations on this issue are not sufficient.

In Fialkowski v. Shapp, Governor, 405 F.Supp. 946 (E.D.Pa.1975), the District Court pointed out the necessity of requiring factual specificity in a § 1983 action. The Court said, at 949:

Although notice pleading is generally sufficient, courts have found it necessary to impose a special pleading limitation in civil rights actions in order to identify and dismiss frivolous suits. This court has ruled that complaints in these cases must be specifically pled or be subject to dismissal. Citing Valley v. Maule, 297 F.Supp. 958, 960-61 (D.Conn.1968), Judge Green stated in Downs v. Dept. of Public Welfare, 368 F.Supp. 454, 463 (E.D.Pa. 1973), that:
"in recent years there has been an increasingly large volume of cases brought under the Civil Rights Acts. A substantial number of these cases are frivolous or should be litigated in the State Court; they all cause defendants —public officials, policemen and citizens alike—considerable expense, vexation and perhaps unfounded notoriety. It is an important public policy to weed out the frivolous and insubstantial cases at an early stage in the litigation, and still keep the doors of the federal courts open to legitimate claims."
. . . . .
The first motion for us to consider is Commonwealth defendants' claim that insufficient allegations of personal involvement are grounds for dismissal. Personal involvement is a necessary element of a § 1983 action. Downs v. Dept. of Public Welfare, supra, at 463. . . . In order to state a claim for relief, then, plaintiff must specifically allege a direct casual link between some official conduct of each Commonwealth defendant and the alleged constitutional deprivations.

While plaintiffs in the instant case alleged that the defendants caused or condoned the alleged acts of trespass by the Highway Department employees and others, these allegations are not specific as to each individual defendant and are more in the nature of the "shotgun" approach and they fail to link causally the conduct of the defendants with the alleged constitutional deprivations.

It is also to be noted that the doctrine of respondeat superior has no application under § 1983 actions. See Jordan v. Kelly, 223 F.Supp. 731 (W.D.Mo.1963); Sanberg v. Daley, 306 F.Supp. 277 (N.D.Ill. 1969), and Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A majority of the courts that have considered the issue have not held high level officials liable for failing to supervise, correct and control the actions of their subordinates. See, e.g., Delaney v. Dias, 415 F.Supp. 1351 (D.Mass. 1976), and cases cited therein. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Estelle v. Gamble, 429 U.S. 97 (1976); and Leite v. City of Providence, 463 F.Supp. 585 (D.R.I.1978).

The Court also finds merit in defendants' contention that the complaint fails to state a substantial constitutional violation necessary to invoke jurisdiction under 42 U.S.C. § 1983. The complaint alleges that plaintiffs have been deprived of their constitutional right of due process because of the unlawful taking of their property without payment of just compensation in violation of the Fifth and Fourteenth Amendments. The plaintiffs here have not been deprived of due process since due process remedies are available to the plaintiffs in state court for the alleged taking of their property. Cf. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). Equitable relief could have been sought in the Pulaski County Chancery Court whereby the defendants for the State may be enjoined from the taking of property until just compensation is provided therefor. See Flake v. Arkansas State Highway Comm'n, 251 Ark. 1084, 476 S.W.2d 801 (1972), and Arkansas State Highway Comm'n v. Partain, 192 Ark. 127, 90 S.W.2d 968 (1936).

In the event a taking occurred before the plaintiffs had the opportunity to seek injunctive relief in the Pulaski County Chancery Court, then the plaintiffs have available to them the remedy of resorting to the State Claims Commission. See Ark.Stat. Ann. § 13-1401, et seq. (Repl.1968). The State Claims Commission satisfies the constitutional requirement of due process, and is readily available to the plaintiffs for the relief they seek for the alleged wrongful acts. Thus having the remedies of the Pulaski County Chancery Court and/or the State Claims Commission available to them, it is not necessary for plaintiffs to resort to federal court for relief.

In Knight v. State of New York, 443 F.2d 415 (2d Cir. 1971), the Second Circuit Court of Appeals quoted with approval the language of the lower District Court to the effect that: "`The proper forum for claims that the state has wrongfully appropriated land is the New York State Court of Claims'".

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