Trobough v. City of Martinsburg ( 1997 )


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  •                                               Filed:    August 8, 1997
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 96-1607
    (CA-92-40)
    John Trobough, et al,
    Plaintiffs - Appellants,
    versus
    City of Martinsburg, et al,
    Defendants - Appellees.
    O R D E R
    The Court amends its opinion filed July 30, 1997, as follows:
    On page 2, first line of the opinion:        "Per Curiam" is cor-
    rected to read "HILTON, District Judge."
    For the Court - By Direction
    /s/ Patricia S. Connor
    Clerk
    UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    JOHN TROBOUGH; SUSAN YARR
    TROBOUGH,
    Plaintiffs-Appellants,
    v.
    No. 96-1607
    CITY OF MARTINSBURG; CITY COUNCIL
    OF THE CITY OF MARTINSBURG; G.
    DALE FISHBACK, JR.; DAN H.
    NIELSEN,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Northern District of West Virginia, at Martinsburg.
    Irene M. Keeley, District Judge.
    (CA-92-40)
    Argued: January 29, 1997
    Decided: July 30, 1997
    Before WILKINSON, Chief Judge, ERVIN, Circuit Judge,
    and HILTON, United States District Judge for the
    Eastern District of Virginia, sitting by designation.
    _________________________________________________________________
    Affirmed by unpublished opinion. Judge Hilton wrote the opinion, in
    which Chief Judge Wilkinson and Judge Ervin joined.
    _________________________________________________________________
    COUNSEL
    ARGUED: James Paul Campbell, JAMES P. CAMPBELL & ASSO-
    CIATES, P.C., Leesburg, Virginia, for Appellants. Brian Alexander
    Glasser, BOWLES, RICE, MCDAVID, GRAFF & LOVE, Charles-
    ton, West Virginia, for Appellees. ON BRIEF: Charles F. Printz, Jr.,
    BOWLES, RICE, MCDAVID, GRAFF & LOVE, Charleston, West
    Virginia, for Appellees.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    HILTON, District Judge:
    Appellants John and Susan Trobough appeal from the district
    court's grant of summary judgment. Appellants allege that the City of
    Martinsburg, West Virginia, the City Council and certain City offi-
    cials have violated their constitutional rights to due process, equal
    protection and have taken their property without just compensation.
    We affirm the district court's decision.
    I.
    The Appellants purchased a four unit apartment building at 210
    East Burke Street in 1988. Over the next few years, several citizen
    complaints were filed with the City concerning the activities of cer-
    tain residents and the condition of the apartments. For example, in
    1991, the above ground sewer line ruptured. The discharge of raw
    sewage onto the ground drew the City's attention to the property. The
    City ordered the Troboughs to fix the pipe. The City also ordered
    abatement of an accumulation of garbage, old appliances, old furni-
    ture and other debris at the back of the tenement. The City requested
    that the Troboughs put a gutter and downspouts on the roof of a small
    building in the back of the property because water running off the
    roof flooded the basement of the neighbor's residence at 212 East
    Burke Street.
    In May of 1992, a broken sewer pipe again drew the City's atten-
    tion to the property. The City inspected the property and informed the
    2
    Troboughs that they were in violation of the State Building Code, and
    had five days to correct the violations. On June 2, 1992, neighbors to
    the property, Paul and Heidi Sweeney, wrote to the Troboughs com-
    plaining about alleged drug dealing, public urination and drunken
    brawls taking place on the Trobough's property. The Sweeneys also
    wrote to Nan Stevens, a City building inspector, requesting that she
    take action to take care of the problem. Eight days later Mr. Sweeney
    again wrote the City to complain about more drug dealing at 210 East
    Burke. Mr. Sweeney's letter also reported his observations (through
    a perennially open door and a broken glass window in the vacant first
    floor at 210 East Burke), that a puddle of water was covering the
    kitchen floor, the floor itself sagged, the rear porch was rotted and
    patched haphazardly with scraps of plywood and lumber, a pervasive
    odor of sanitary wastes and rotting foodstuffs emanated from the
    porch and central hallway, and there were no garbage cans available
    to the tenants of the property. Mr. Sweeney also reported that when
    invited by two residents of 210 East Burke he entered their apart-
    ments and found inadequate plumbing, heating and electrical services.
    According to Mr. Sweeney there were no smoke detectors in the
    building. In his letter, Mr. Sweeney requested that the City investigate
    the Trobough's property.
    City officials decided to investigate and inspect 210 East Burke
    Street, and on June 26, 1992 sent a notice to the Troboughs giving the
    date and time of the inspection. The City building inspectors applied
    for and obtained a search warrant to permit inspection of 210 East
    Burke for purposes of examining, among other things, the safety of
    the electrical system. The City used the search warrant to inspect
    Apartment One of the building on July 1, 1992.
    A team of police officers, building inspectors and an electrical
    inspector inspected the apartment, taking photographs. They noted
    numerous problems, including but not limited to: broken sidewalks;
    unglazed or unopenable windows; lack of screens and smoke detec-
    tors; inadequate handrails, food preparation areas and garbage facili-
    ties; foundation walls out of plumb; flues pulling away from the
    furnace and the wall; and pipes repaired with twine. The fire chief's
    inspection of the tenement revealed: no approved means for exiting
    the second floor of the tenement; no smoke detectors; and no fire
    extinguishers. The electrical inspector also noted serious problems,
    3
    including: lack of proper grounding; inadequate number of outlets
    which were then overloaded with extension cords; substitution of bal-
    led up aluminum foil for a fuse; missing or broken handles on the dis-
    connects with conductors jumpered across the inoperable disconnect;
    inadequate lighting; use of a 30 amp fuse where the maximum allow-
    able was 15 amps; and a rusting indoor junction box being used out-
    side. The electrical inspector concluded that the condition of the
    wiring and equipment posed "a serious threat to personal safety and
    property and the same threat to its surroundings."
    Following the inspection the City issued an Emergency Condition
    Order, which was posted on the property, requiring that the apart-
    ments be vacated and closed until such time as the structure was
    brought up to the standards of the National Electric Code, the
    National Fire Life Safety Code and the 1990 Property Maintenance
    Code. The Troboughs ignored the order to vacate, failed to avail
    themselves of the administrative appeals process, and removed the
    posted order from the premises.
    On July 17, 1992, the Troboughs sought a building permit in order
    to perform maintenance limited to replacing the main electrical ser-
    vice disconnects for each apartment. The City denied the permit on
    July 21, 1992 until two copies of the specifications and plans were
    submitted, and until the application included enough work to bring
    the structure into compliance with applicable codes. On July 21,
    1992, the City obtained arrest warrants for the Troboughs for remov-
    ing the Emergency Condition Order and failing to obey the posted
    notice. The Troboughs were arrested. After arraignment, they filed
    this law suit. To date they have not been tried on the charges, nor
    have they repaired the property.
    II.
    The Troboughs' complaint arises from the City's order to vacate
    and close their rental property for violations of the Property Mainte-
    nance Code and in arresting them for removing the Emergency Con-
    dition Order and failing to vacate the premises or repair the conditions
    properly. The district court referred the defendants' motion for sum-
    mary judgment to the magistrate judge for submission of proposed
    findings of fact and a recommended disposition. The magistrate judge
    4
    filed his proposed finding and recommended disposition, concluding
    that the defendants' motion for summary judgment should be granted.
    The district court, after considering the Trobough's objections,
    adopted, with slight exception, the magistrate judge's conclusions as
    its own and granted summary judgment for the defendants.
    The decision of the district judge should be affirmed. Appellants
    seek to try their state law claims in federal court under the guise of
    
    42 U.S.C. § 1983
    . However, appellants have no constitutional claims
    to support a § 1983 action. In order for Plaintiffs to establish a prima
    facie case pursuant to 
    42 U.S.C. § 1983
     they must have suffered the
    deprivation of a federal right, privilege or immunity by defendants'
    actions. However, the continued maintenance of an illegal use or a
    public nuisance is not a protected property interest. Mugler v. Kansas,
    
    123 U.S. 623
     (1887); Lucas v. South Carolina Coastal Council, 
    505 U.S. 1003
     (1992); Keystone Bituminous Coal Assn. v. DeBenedictus,
    
    480 U.S. 470
     (1987); Agins v. Tiburon, 
    447 U.S. 255
     (1980).
    An electrical inspector concluded that 210 East Burke's electrical
    system constituted "a serious threat to personal safety and property."
    In addition, the fire chief's inspection of the tenement revealed (i) no
    approved means for exiting the second floor of the tenement; (ii) no
    smoke detectors, and (iii) no fire extinguishers. Together these reports
    (and reports of other inspectors) more than adequately support the dis-
    trict court's conclusion that the tenement at 210 East Burke Street
    constituted a menace to the health and safety of those inside and was
    a public nuisance.
    To state a substantive due process claim, the Troboughs must dem-
    onstrate a lost "property interest, rooted in state law." Biser v. Town
    of Bel Air, 
    991 F.2d 100
    , 103-04 (4th Cir. 1993). However, no person
    enjoys a property interest in maintaining a nuisance. Keystone, 
    480 U.S. at
    492 n. 20-22. Thus, since the City's actions in this case
    involved ameliorating a serious risk to persons and property, the Tro-
    boughs' substantive due process claim must fail.
    Because the City acted to protect its citizens from a nuisance, the
    Troboughs' procedural due process claim also fails. In situations
    where a government must act to protect its citizens from a nuisance,
    the availability of a prompt hearing, subsequent to the action satisfies
    5
    the demands of due process. See Matthews v. Eldridge, 
    424 U.S. 319
    ,
    333-35 (1976); McLean Trucking Co. v. OSHRC, 
    503 F.2d 8
    , 11 (4th
    Cir. 1974). In this case, the City offered the Troboughs a chance to
    participate in a subsequent hearing to contest the issuance of the
    Emergency Condition Order. The Troboughs ignored the opportunity.
    The City was acting to ameliorate a nuisance, and provided the Tro-
    boughs an opportunity to participate in the process, a procedure which
    vitiates the Troboughs' procedural due process claim.
    The Troboughs' have no taking claim. A taking occurs when a state
    extinguishes a property interest for public use. See Lucas, 
    505 U.S. at 1019
    . However, a taking does not occur when a state eliminates a
    nuisance. Keystone, 
    480 U.S. at 489-91
    ; Lucas, 
    505 U.S. at 1023-24
    .
    In this case the City's actions were directed at eliminating a nuisance,
    and as a result the Troboughs' taking claim must fail.
    Finally, the Troboughs' equal protection claim must fail. The Tro-
    boughs must prove that the City's actions were not rationally related
    to a legitimate government interest. City of Cleburne, Texas v. Cle-
    burne Living Center, 
    473 U.S. 432
    , 440 (1985). However, the City's
    treatment of the Troboughs in this case was rationally related to the
    legitimate government aim of eliminating dangers to people and prop-
    erty. Thus the Troboughs' equal protection claim also fails.
    The Troboughs had every opportunity to seek resolution of their
    claims in state court and chose not to do so. The federal courts are
    overburdened with litigation and do not need, and should not be bur-
    dened with, this kind of action which seeks resolution of state claims.
    AFFIRMED
    6