Terrace Knolls v. Dalton, Dalton, Little & Newport

• Decision Date: 28 September 1983
• Docket Number: Civ. A. No. C 80-534 A.
• Citation: 571 F. Supp. 1086
• Parties: TERRACE KNOLLS, INC., Plaintiff, v. DALTON, DALTON, LITTLE AND NEWPORT, INC., et al. Defendants.
• Court: U.S. District Court — Northern District of Ohio

571 F. Supp. 1086

TERRACE KNOLLS, INC., Plaintiff, v. DALTON, DALTON, LITTLE AND NEWPORT, INC., et al. Defendants.

Civ. A. No. C 80-534 A.

United States District Court, N.D. Ohio, E.D.

September 28, 1983.

COPYRIGHT MATERIAL OMITTED

Robert W. Blakemore, Akron, Ohio, for plaintiff.

Albert Biro and Daniel J. O'Loughlin, Cleveland, Ohio, for defendants.

MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

Plaintiff Terrace Knolls, Inc. ("Knolls") sues officials of the Village of Silver Lake, Ohio and private consultants for conspiring to unjustly halt its development of a parcel of real estate. Alleging violations of the Fourteenth Amendment to the Constitution, 42 U.S.C. § 1983, and Ohio law, Knolls seeks compensatory and punitive damages and injunctive relief.

Before the Court is a Motion to Dismiss filed by defendants William Curry, Clyde Conn, Henry Dixon, and Gerald McElhaney ("Silver Lake defendants"). Defendant Dalton, Dalton, Little & Newport, Inc. ("Dalton"), in their answer to Knolls' complaint, have also prayed for dismissal. The Motion alleges that Knolls has failed to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). Upon consideration of the pleadings and for the reasons set forth below, the Court finds the Motion meritorious and the complaint inadequate, and orders the action dismissed.

Jurisdiction over the federal claims is predicated on 28 U.S.C. §§ 1331, 1343. The Court has pendent jurisdiction over the state claims.

FACTS

On July 5, 1977, the Silver Lake Village Council approved Knolls' plan to develop a parcel of land. At the time, defendant Curry was the village's clerk-treasurer, Conn was mayor, and Dixon and McElhaney were councilmen. The village engineer approved the development plan on November 1, 1977.

In 1979, Dalton, a consulting firm, was hired by the federal Department of Housing and Urban Development ("HUD") to survey and define the flood plain for lands in Silver Lake adjacent to the Cuyahoga River. Knolls' parcel was among the lands to be affected by establishment of a flood plain.

Knolls accuses Dalton of negligently submitting erroneous data to HUD. Relying on the information, the department defined the flood plain for Knolls' land five to six feet higher than its true level. It submitted the findings to the village. The village subsequently enacted an ordinance restricting Knolls' development plans, refused to issue building permits, and denied the use of public streets for construction activities.

In Count I of its amended complaint, Knolls charges that Dalton and the Silver Lake defendants "engaged in a conspiracy ... to unjustly halt, inhibit and interfere with the development of its land." Amended Complaint ¶ 11, at 5. Counts II and III allege that the public officials, "together and in their individual capacities," prevented Knolls from developing its property and thereby deprived it of civil rights under 42 U.S.C. § 1983 and due process and equal protection under the Fourteenth Amendment. Count IV alleges that the Dalton firm and the Silver Lake defendants, by publishing incorrect information about the flood plain level, damaged Knolls' reputation and diminished the marketability and value of the development property.

The Silver Lake defendants, in moving to dismiss the federal causes of action for failure to state a claim, argue that the complaint fails to specify any personal or official actions by the officials and fails to state any violations of the Fourteenth Amendment or § 1983. Since Counts I and IV are state law claims, under the doctrine of pendent jurisdiction they can only be heard if the federal issues are properly before the Court.

LAW

I. SUFFICIENCY OF THE COMPLAINT

The Silver Lake defendants deem the complaint inadequate under Fed.R. Civ.P. 8(a) for lack of specificity. They state that the complaint (1) alleges that the defendants acted together and individually but fails to allege a conspiracy; (2) accuses the officials of performing acts under color of law and authority of office yet sues them in both individual and official capacities; (3) fails to include HUD, which ordered the flood plain survey, as a defendant; and (4) lacks allegations respecting the powers and duties of the named defendants and fails to specify which defendant is responsible for any named act. Reviewing this argument, the Court notes first that Count I does allege a conspiracy between the Dalton firm and the Silver Lake defendants, and also that failure to name HUD as a defendant is irrelevant to a motion to dismiss for lack of specificity.

Defendants urge us to adhere to the strict pleading rules set forth for civil rights actions set forth in Ogletree v. McNamara, 449 F.2d 93, 98 (6th Cir.1971):

... Liberal as are the federal rules of pleading, something more than conclusory allegation of systematic racial discrimination is required. Some facts as to when, how, to whom, and with what results such discrimination has been applied would seem a minimum required for "a short and plain statement of the grounds upon which the court's jurisdiction depends."

Ogletree's requirement that a complaint "allege facts as opposed to generalities and conclusions" has been criticized as reflecting "discarded notions" favoring fact-pleading. McCray v. Standard Oil Co. (Indiana), 76 F.R.D. 490, 496-97 (N.D.Ill.1977); see EEOC v. Stroh Brewery Co., 83 F.R.D. 17, 32 (E.D.Mich.1979). Complaints need not set forth specific facts to support general allegations of discrimination. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Moreover, as the Supreme Court wrote in Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974):

... When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.

The complaint alleges that Knolls was discriminatorily prevented from developing its property. It puts the defendants on notice of the nature of Knolls' grievance and the grounds upon which it rests. No more is required under Fed.R.Civ.P. 8(a). Linder v. Litton Systems, Inc., Amecom Division, 81 F.R.D. 14 (D.Md.1978). "The court should remember that fundamental rights and important questions of public policy are involved in actions under the various civil rights statutes and should not dismiss the complaint unless it clearly is frivolous or fails to state a claim for relief." 5 Wright, Miller & Kane, Federal Practice and Procedure: Civil § 1230 (1969 & Supp. 1982).

The Motion to Dismiss for lack of specificity is denied.

II. SUBSTANTIVE CLAIMS

A. Fourteenth Amendment

In Counts II and III, Knolls claims abridgement of its due process and equal protection rights and asserts an implied cause of action for damages directly under the Fourteenth Amendment, irrespective of statutory authorization.

The Supreme Court first permitted direct actions under the Bill of Rights for "constitutional torts" in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Bivens permitted the victim of an illegal search and seizure to sue directly under the Fourth Amendment. Similar actions have been recognized under the Fifth Amendment, Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and the Eighth Amendment. Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). The Court has not decided whether a direct cause of action exists under the Fourteenth Amendment. Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 571, 50 L.Ed.2d 471 (1977). Nor has the Sixth Circuit recognized such an action. Hall v. United States, 704 F.2d 246, 249 n. 1 (6th Cir.1983).

This case does not require that we decide whether a Fourteenth Amendment Bivens action is viable. Knolls alleges causes of action under § 1983 precisely equivalent to its constitutional claims. Since Congress intended § 1983 to enforce the provisions of the Fourteenth Amendment, Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 475, 5 L.Ed.2d 492 (1961), simultaneous claims under the two provisions have been regarded as inappropriate:

... Indeed, § 1983 was designed to afford plaintiffs a cause of action for constitutional violations on the part of local governmental bodies and other state officials.... Therefore, it would be a redundant and wasteful use of judicial resources to permit the adjudication of both constitutional and § 1983 claims where the latter wholly subsume the former.

Rogin v. Bensalem Township, 616 F.2d 680, 686-87 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981).

Knolls' cause of action under the Fourteenth Amendment must be dismissed.

B. Section 1983

The Civil Rights Act of 1871, 42 U.S.C. § 1983, provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

A claim under § 1983 requires two elements: (1) conduct by defendants under color of state law; and ...