Rodenbeck v. State of Ind.

• Decision Date: 19 July 1990
• Docket Number: Civ. No. F88-307.
• Citation: 742 F. Supp. 1442
• Parties: Robert C. RODENBECK, et al., Plaintiffs, v. The STATE OF INDIANA, LEAKING UNDERGROUND STORAGE TANK DIVISION OF the DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Defendant.
• Court: U.S. District Court — Northern District of Indiana

742 F. Supp. 1442

Robert C. RODENBECK, et al., Plaintiffs, v. The STATE OF INDIANA, LEAKING UNDERGROUND STORAGE TANK DIVISION OF the DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Defendant.

Civ. No. F88-307.

United States District Court, N.D. Indiana, Fort Wayne Division.

July 19, 1990.

Max E. Hobbs, Fort Wayne, Ind., Jacqueline A. Simmons and L. Alan Whaley, Ice Miller Donadio & Ryan, Indianapolis, Ind., for plaintiffs.

Kimberlie Antrim Forgey, Deputy Atty. Gen., Indianapolis, Ind., for State of Ind.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on motion to dismiss filed by defendant State of Indiana, Leaking Underground Storage Tank Division of the Department of Environmental Management. The parties have fully briefed the issues. For the following reasons, the motion to dismiss will be granted.

In deciding a motion to dismiss for failure to state a claim, this court must take the well pleaded factual allegations of the plaintiff's complaint as true. Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir.1980). The complaint must be considered in the light most favorable to the plaintiff and every doubt must be resolved in the plaintiff's favor. Henry C. Beck Co. v. Fort Wayne Structural Steel, 701 F.2d 1221 (7th Cir. 1983). Dismissal is improper "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985) (quoting Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Nonetheless, a complaint "must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory." Papapetropoulous v. Milwaukee Transport Services, 795 F.2d 591, 594 (7th Cir.1986). "The heavy costs of modern federal litigation ... counsel against launching the parties into pretrial discovery if there is no reasonable prospect that the plaintiff can make out a cause of action from the events narrated in the complaint." Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 654 (7th Cir.1984).

Following these principles, the facts, as pleaded by the plaintiffs and relevant to this motion, appear to be as follows. Plaintiffs are the owners of real estate located in Fort Wayne, Indiana. This property had been the site of a gasoline service station for many years. When the station was no longer operating, plaintiffs attempted to sell their property. During the year 1988, plaintiffs had a valid Offer to Purchase secured by earnest money, which Offer to Purchase required that the ground test according to EPA standards. Borings were taken of the ground and test samples sent to laboratories for analysis. The laboratory test showed a substantial amount of contamination of the soil and the prospective purchaser exercised his option to terminate the Agreement to Purchase as a result of that contamination. Subsequent to the laboratory report, the matter was reported to the Leaking Underground Storage Tank Division of the Department of Environmental Management. The Department did further borings and tests and have advised plaintiffs that there is a serious contamination of the soil which will require a substantial clean up, including removal of soil and back pumping because of serious contamination of the ground water at the site and nearby.

Plaintiffs have been advised by professional consultants in contamination problems that before a comprehensive plan of clean up may be accomplished, it is necessary for the defendant to establish a level of clean up. Once a level of clean up is established, then a comprehensive plan may be developed and an attempt may be made to distribute fault among the various parties involved. Until such level of clean up is established by defendant, it is impossible to determine fault.

Plaintiffs allege that as a result of the failure of the Leaking Underground Storage Tank Division program to carry out its duties and responsibilities, the plaintiffs have been unable to sell the real estate, to list the real estate for sale, to obtain financing on the real estate or to operate the real estate in any manner. The plaintiffs assert that the defendant's failure to fulfill its obligations constitutes a deprivation of property in violation of the 14th Amendment of the United States Constitution. As such, the plaintiffs have filed an action under 42 U.S.C. § 1983 seeking damages against defendant. Plaintiffs are also asking the court to declare the rights and obligations of the parties.

Defendant has filed a motion to dismiss the plaintiffs' claim arguing that the Eleventh Amendment of the United States Constitution¹ bars this suit. The defendant has also argued that a State is not a "person" for purposes of § 1983² and thus the Department of Environmental Management, Leaking Underground Storage Tank Division, cannot be sued for a violation of § 1983.

Plaintiffs contend that defendant's motion to dismiss is premature at this stage of the proceedings and further contend that the defendant is not entitled to Eleventh Amendment immunity in the present case. Plaintiffs cite Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), in support of their assertion that defendant's motion to dismiss is premature. In Scheuer, the personal representatives of the estates of three students who died in the Kent State shootings sought damages under 42 U.S.C. § 1983 against various state officials. The district court dismissed the complaints for lack of jurisdiction over the subject matter on the theory that these actions, although in form against the named officials, were, in substance and effect, against the State of Ohio and thus barred by the Eleventh Amendment. The Supreme Court held that:

Petitioners allege facts that demonstrate they are seeking to impose individual and personal liability on the named defendants for what they claim — but have not yet established by proof — was a deprivation of federal rights by these defendants under color of state law. Whatever the plaintiffs may or may not be able to establish as to the merits of their allegations, their claims, as stated in the complaints, given the favorable reading required by the Federal Rules of Civil Procedure, are not barred by the Eleventh Amendment. Consequently, the District Court erred in dismissing the complaints for lack of jurisdiction.

94 S.Ct. at 1687 (emphasis in original).

Plaintiffs suggest that the complaint in this action, like the complaint in Scheuer, raises certain constitutional questions and that the defendant's Eleventh Amendment immunity should be further explored. However, as defendant points out, plaintiffs have failed to recognize the distinction between a state agency such as the defendant in this suit, which is protected by the Eleventh Amendment, and state officials such as the defendants in Scheuer, who may be subject to a lawsuit in federal court. In Scheuer, the Supreme Court held that the district court prematurely dismissed the plaintiffs' complaint because it was state officials, rather than a state or state agency, who were the named defendants. In the present case, however, a state agency is the named defendant. Plaintiffs have not provided a competent basis for a finding that defendant's motion to dismiss is premature. Therefore, the court finds that the motion is properly before the court at this time.

The Department of Environmental Management is an agency of the State of Indiana³, and as such, is immune from suit under the Eleventh Amendment. States and their "alter ego" agencies may not be sued in federal court directly in their own names either for damages or for declaratory and injunctive relief by virtue of the Eleventh Amendment. The Eleventh Amendment has been interpreted by the Supreme Court to bar suits in federal court by citizens of the defendant state. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). More recently, in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984), the Supreme Court stated:

It is clear, of course, that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment. See, e.g., Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home Assn., 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (per curiam); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). This jurisdictional bar applies regardless of the nature of the relief sought. See, e.g., Missouri v. Fiske, 290 U.S. 18, 27, 54 S.Ct. 18, 21, 78 L.Ed. 145 (1933) ("Expressly applying to suits in equity as well as at law, the Amendment necessarily embraces demands for the enforcement of equitable rights and the prosecution of equitable remedies when these are asserted and prosecuted by an individual against a State").

A State's sovereign immunity may be overcome either by the State's unequivocal expression of its consent to be sued, or by the United States Congress' unequivocal expression of its intent to abrogate the State's immunity.

A sovereign's immunity may be waived, and the Court consistently has held that a State may consent to suit against it in federal court. See, e.g., Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 882-883, 27 L.Ed. 780 (1883). We have insisted, however, that the State's consent be unequivocally expressed. See, e.g., Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360-1361, 39 L.Ed.2d 662 (1974). Similarly, although Congress has power with respect to the rights protected by the Fourteenth Amendment to abrogate the Eleventh Amendment immunity, see Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), we have required an unequivocal expression of congressional intent to "overturn the constitutionally guaranteed immunity of the several States."

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