Westbrook v. City of Jackson, Mississippi

• Decision Date: 22 August 1991
• Docket Number: Civ. A. No. J90-0228(L).
• Citation: 772 F. Supp. 932
• Parties: Jack L. WESTBROOK, Jr., Individually and as Executor of the Estate of Thelma P. Westbrook, Deceased, and Cambridge Mutual Fire Insurance Company, Plaintiffs, v. CITY OF JACKSON, MISSISSIPPI; Russell C. Davis, Dale Danks, Jr., and Kane Ditto, Individually and in their Official Capacities as Mayor or Former Mayors of the City of Jackson, Mississippi; Thomas B. Kelly, Edward L. Cates, Douglas W. Shanks, Nielsen H. Cochran, Fred C. Johnson, Luther L. Roan, Jr., and George Porter, Individually and in their Official Capacities as Former City Commissioners of the City of Jackson, Mississippi; Louis E. Armstrong, Margaret C. Barrett, Derwood R. Boyles, E.C. Foster, Luther L. Roan, Jr., Doris P. Smith, Marcia Weaver, and Kenneth I. Stokes, Individually and in their Official Capacities as Members, or Former Members, of the City Council of the City of Jackson, Mississippi, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

772 F. Supp. 932

Jack L. WESTBROOK, Jr., Individually and as Executor of the Estate of Thelma P. Westbrook, Deceased, and Cambridge Mutual Fire Insurance Company, Plaintiffs, v. CITY OF JACKSON, MISSISSIPPI; Russell C. Davis, Dale Danks, Jr., and Kane Ditto, Individually and in their Official Capacities as Mayor or Former Mayors of the City of Jackson, Mississippi; Thomas B. Kelly, Edward L. Cates, Douglas W. Shanks, Nielsen H. Cochran, Fred C. Johnson, Luther L. Roan, Jr., and George Porter, Individually and in their Official Capacities as Former City Commissioners of the City of Jackson, Mississippi; Louis E. Armstrong, Margaret C. Barrett, Derwood R. Boyles, E.C. Foster, Luther L. Roan, Jr., Doris P. Smith, Marcia Weaver, and Kenneth I. Stokes, Individually and in their Official Capacities as Members, or Former Members, of the City Council of the City of Jackson, Mississippi, Defendants.

Civ. A. No. J90-0228(L).

United States District Court, S.D. Mississippi, Jackson Division.

August 22, 1991.

Roger Googe, Jackson, Miss., for plaintiffs.

Matthew M. Moore, Jackson, Miss., for defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

On September 17, 1970, the City of Jackson adopted an ordinance pursuant to which an area of Hinds County which included the home of Ms. Thelma P. Westbrook was annexed by the City. A Petition for Ratification, Approval and Confirmation of Ordinance Extending the Boundaries of the City of Jackson was filed in the Chancery Court for the First Judicial District of Hinds County, and after a hearing by the court, a decree was entered on December 18, 1970 approving the ordinance. The chancery court decree declared "the public and municipal services which the said City of Jackson proposes to render in the newly annexed territory ... and the time within which said services will be rendered ... to be reasonable," and further declared "that the City of Jackson can and will render the proposed public and municipal services as set forth in the original Petition in this cause." That decree was thereafter affirmed by the Mississippi Supreme Court, and the ordinance went into effect on December 28, 1970. As will be discussed in greater detail infra, the ordinance provided, inter alia, that the City was to furnish water improvements and services and was to provide fire protection to the annexed area.¹

On February 12, 1989, the Jackson Fire Department responded to a fire at the Westbrook property. The fire department was unable to extinguish the flames and the house and its contents were destroyed by the fire. Plaintiffs, Jack L. Westbrook, Jr., individually and as executor of the estate of Thelma P. Westbrook, and Cambridge Mutual Fire Insurance Company,² filed suit in the Circuit Court for the First Judicial District of Hinds County asserting state and federal law claims seeking recovery for their loss against the City of Jackson and a number of municipal officials, in their official and individual capacities, including present and former mayors, city council members and city commissioners.³ Defendants removed the action to this court where it is now before the court on the motion of defendants to dismiss plaintiffs' complaint for failure to state a claim upon which relief can be granted. There is also before the court a motion by plaintiffs for summary judgment on the issue of defendants' liability.

Plaintiffs allege in their complaint that the fire department failed to extinguish the fire at the Westbrook home because there was not sufficient water available due to the failure and negligence of the defendants in not having constructed or otherwise having made provision for municipal level water improvements and water service to the property. Plaintiffs further allege that defendants failed to provide adequate fire protection to the property in that defendants knew that special fire fighting equipment was needed at the site but failed to timely dispatch or otherwise provide same. Based on these allegations, plaintiffs charge defendants with negligence and with a breach of duties imposed by state annexation laws, Miss.Code Ann. §§ 21-1-27 to 21-1-41 (1972),⁴ along with the annexation ordinance and chancery decree approving same, to provide municipal level water improvements and fire protection. Plaintiffs also assert a claim under 42 U.S.C. § 1983, charging that the defendants' failure to provide adequate water improvements and service and adequate fire protection violated plaintiffs' equal protection and due process rights under the Fourteenth Amendment to the United States Constitution.

The City, and the defendant public officials in their official capacities,⁵ contend that they enjoy sovereign immunity against plaintiffs' claims since the provision of water services and fire protection is a governmental function which is discretionary in nature. See Sykes v. Grantham, 567 So.2d 200 (Miss.1990); Poyner v. Gilmore, 171 Miss. 859, 158 So. 922 (1939). Plaintiffs counter that defendants were required by state and local laws to provide these services and that consequently, this was not a discretionary, but was rather a ministerial function for which defendants are not immune. Defendants in their individual capacities also claim that they have qualified immunity. Because the court concludes that plaintiffs have failed to plead a cognizable constitutional tort, the issue of immunities need not be reached.

Section 1983

The court begins its analysis of the present motions with the understanding that a loss "does not necessarily presuppose a constitutional violation." Griffith v. Johnston, 899 F.2d 1427, 1441 (5th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991). The issue presented, therefore, is whether plaintiffs have stated and/or can maintain a federal claim for relief. In any section 1983 action, the first question is whether the section is the appropriate basis for a remedy, which involves consideration of whether the two elements required to support a claim under section 1983 are present: (1) the conduct that harms the victim must be committed under color of state law, and (2) the conduct must deprive the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). The starting point of the court's consideration of plaintiffs' claim is the isolation of the specific federal right which plaintiffs claim that defendants violated. Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir.1984). Here, the constitutional rights of which plaintiffs claim to have been deprived are the Fourteenth Amendment rights not to be deprived of property without due process of law and of equal protection.

Due Process

The Due Process Clause provides "nor shall the state deprive a person of life, liberty or property without due process of law." A section 1983 action can be successfully stated only where the plaintiffs demonstrate that they have asserted a recognized "liberty or property" interest within the purview of the Fourteenth Amendment, and that they were intentionally or recklessly deprived of that interest under color of state law. Griffith, 899 F.2d at 1435. It has long been recognized that there generally exists no constitutional right to basic governmental services, such as fire and police protection. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 309, 102 S.Ct. 2452, 2454, 73 L.Ed.2d 28 (1982) ("As a general matter, a State is under no constitutional duty to provide substantive services for those within its border"); Wells v. Walker, 852 F.2d 368, 370 (8th Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989) (as general rule, members of public at large have no constitutional right to be protected by state against harm inflicted by third parties); Jackson v. Byrne, 738 F.2d at 1446 (same). This view was confirmed by the United States Supreme Court in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), wherein the Court stated:

Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.

. . . . .

Our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. See, e.g., Harris v. McRae, 448 U.S. 297, 317-318, 100 S.Ct. 2671, 2688-2689, 65 L.Ed.2d 784 (1980) (no obligation to fund abortions or other medical services) (discussing Due Process Clause of Fifth Amendment); Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 (1972) (no obligation to provide adequate housing) (discussing Due Process Clause of Fourteenth Amendment); see also Youngberg v. Romeo, 457 U.S. 307, 317, 102 S.Ct. 2452, 2458 73 L.Ed.2d 28 (1982) ("As a general matter, a State is under no constitutional duty to provide substantive services for those within its border"). As we said in Harris v. McRae, "although the liberty protected by the Due Process Clause affords protection against unwarranted governmental interference ..., it does not confer an entitlement to such governmental aid as may be necessary to realize all the advantages of that freedom." 448 U.S., at 317-318, 100 S.Ct., at 2688-2689 (emphasis added). If the Due Process Clause does not require the

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