Ernestine Waldon v. Donna Wilkins , 400 F. App'x 75 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 8, 2010
Decided August 13, 2010
Before
WILLIAM J. BAUER, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 09-3238
ERNESTINE WALDON and VERGIE Appeal from the United States District
SMALL, Court for the Southern District of Indiana,
Plaintiffs-Appellants, Indianapolis Division.
v. No. 1:07-cv-01329-LJM-DML
DONNA WILKINS, M.D., Health Larry J. McKinney,
Officer, Delaware County, et al., Judge.
Defendants-Appellees.
ORDER
This civil rights action arises from the court-ordered demolition of property owned
by Ernestine Waldon and Vergie Small. Waldon and Small claim that county officials
demolished the property without giving proper notice. They claim that the defendants
wrongly served notice by mail to the demolition site when they knew that such service was
unlikely to reach them. They further allege that the subsequent removal of their personal
No. 09-3238 Page 2
belongings was an unreasonable seizure in violation of the Fourth Amendment and an
uncompensated taking in violation of the Fifth Amendment. The district court dismissed
the case for lack of jurisdiction under the Rooker-Feldman doctrine. Although Rooker-Feldman
is inapplicable, we conclude that the district court judgment can be affirmed on the
alternative ground that Waldon and Small failed to state a claim.
We accept as true all well-pleaded allegations in the complaint, construing
ambiguities in favor of the plaintiff. Kim v. Carter’s Inc., 598 F.3d 362, 363 (7th Cir. 2010).
Small and Waldon owned an overgrown, debris-littered tract of land in Galston, Indiana.
There was a mobile home on the property, along with a barn, a trailer, and several motor
vehicles. The Delaware County health department deemed the property unfit for habitation
and ordered it vacated. The county gave Small and Waldon two weeks to abate the
offending conditions—to remove the debris, sanitize the mobile home, and mow the
unkempt lot. When they failed to respond, the county sued in state court to have the
property be declared a public nuisance and authorize the health department to “take
whatever means necessary to bring the property into compliance.” Copies of the complaint,
the summons, and an order setting a date for an emergency hearing were delivered to the
property. Shortly before the hearing, Waldon sought a continuance but was denied.
The state-court hearing went forward without Waldon or Small in attendance.
Health department employee Joshua Williams testified to the unlawful conditions on the
Galston property, which as of that morning had not been abated. The court entered
judgment for the county, determining that the property violated the county’s health codes
and the county’s junk-car ordinance. The court ordered the property owners to remove any
property of value within ten days, after which the health department would be authorized
to remove the mobile home and any personal property located on the tract of land. Waldon
and Small were to reimburse the county for attorneys’ fees and costs of removal. County
attorney Donald Dunnuck arranged for a copy of the order to be mailed to Small and
Waldon at the property. Neither individual, however, received notice.
The plaintiffs maintain that Dunnuck and Williams knew the mailing was unlikely to
reach them. Dunnuck and Williams allegedly knew that the property was vacated and that
the plaintiffs were living elsewhere. Indeed, Williams testified to that much at the hearing,
even providing the address of their residence in Redke, Indiana; Dunnuck, for his part,
assured the court he would see to it that the plaintiffs received notice.
The county began demolition eleven days after the entry of the court order. To help
with the demolition, Williams brought on Rodney Barber, who in turn hired his brother
Carl, a Galston police officer. Waldon arrived at the site during the demolition team’s
No. 09-3238 Page 3
second day of work. By this point the mobile home had been razed, and the defendants had
begun to remove plaintiffs’ personal property.
Waldon tried to retrieve her belongings and met stern opposition. A uniformed Carl
Barber threatened to arrest her if she interfered with the removal. Waldon protested that
she never received notice of the demolition, but Williams responded that he did not “give a
God damn and that if she pissed him off he would have her arrested.” When she persisted
and demanded her property’s return, Rodney Barber warned her that “the madder she
made him the greater his bill for the demolition would be.” Precisely what was lost or
recovered is not clear from the complaint. The plaintiffs allege that the defendants
impounded four motor vehicles, for which Waldon paid $430 to retrieve, and damaged
others. They further allege that the demolition team packed furniture and other personal
property into a trailer, which they refused to return.
After the denial of post-judgment motions they had filed to set aside the demolition
order, plaintiffs appealed the order to the state appellate court. The Indiana Court of
Appeals affirmed, concluding that the plaintiffs’ due process rights in the proceedings had
not been violated and that any misconduct on the county’s part had no bearing on the
validity of the demolition order. However, with regard to the manner in which the order
was executed (and their personal property handled), the court determined that any such
claims needed to be brought in a separate lawsuit against the individuals and entities
involved in executing the order. Waldon v. Wilkins, 859 N.E.2d 395, 2006 WL 3833526 (Ind.
Ct. App. 2006). The Indiana Supreme Court and the United States Supreme Court declined
review. Waldon v. Wilkins, 869 N.E.2d 462 (Ind. June 21, 2007); Waldon v. Wilkins, 522 U.S.
1046 (2007).
In this suit under 42 U.S.C. § 1983, Waldon and Small alleged that the defendants
violated the Due Process Clause of the Fifth Amendment (as applied to the states through
the Fourteenth Amendment) when they mailed notice of the demolition order to the Gaston
property knowing it was vacant. They also claim that the subsequent removal of their
personal property violated the Takings Clause of the Fifth Amendment and the Fourth
Amendment’s protection against an unreasonable seizure. They named as defendants
Delaware County Health Officer Donna Wilkins, Joshua Williams, Donald Dunnuck, and
Carl and Rodney Barber.
The Delaware County defendants (Wilkins, Williams, and Dunnuck) responded by
moving to dismiss the complaint, arguing that the district court lacked subject matter
jurisdiction. Invoking the Rooker-Feldman doctrine, see Dist. of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust, Co., 263 U.S. 413, 415-16 (1923),
they argued the complaint was a thinly-veiled attempt to collect damages for injuries
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caused by a state-court judgment. Alternatively they argued that the complaint failed as a
matter of law under the doctrines of res judicata and quasi-judicial immunity. When the
plaintiffs did not respond to the motion, the district court dismissed these defendants under
Rooker-Feldman, explaining that it would be impossible to grant plaintiffs’ requested relief
without disturbing the judgments of the Indiana state courts.
Plaintiffs sought relief from the judgment on the basis that their failure to respond
was due to the excusable neglect of their attorney. See FED. R. CIV. P. 60(b). The district
court agreed that the failure to respond was excusable but denied the motion anyway, still
convinced the federal claims were not sufficiently independent of the state-court judgment
to avoid application of Rooker-Feldman. The Barber brothers proceeded to file a motion to
dismiss that mirrored the motion filed by the Delaware County defendants, and the court
granted that motion, also on Rooker-Feldman grounds.
Plaintiffs’ primary argument on appeal is that the district court erred in applying the
Rooker-Feldman doctrine. We agree. Rooker-Feldman precludes lower federal courts from
reviewing claims that seek to challenge state-court judgments. See Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); Kelley v. Med-1 Solutions, 548 F.3d 600, 603
(7th Cir. 2008); Beth-El All Nations Church v. City of Chicago, 486 F.3d 286, 292 (7th Cir. 2007).
The injuries alleged here arose not from the trial court order authorizing the demolition but
from the willful conduct of the officials charged with carrying it out. Therefore, the state-
court judgment would neither be invalidated nor disturbed if the federal claims proved
successful.
Even though we conclude the district court had jurisdiction to hear the case, we
nonetheless affirm the district court’s dismissal because the complaint fails to state a claim
under Fed. R. Civ. P. 12(b)(6). See Brosted v. Unum Life Ins. Co. of America, 421 F.3d 459, 467
(7th Cir. 2005) (appellate court may affirm on any basis supported in the record). The
complaint alleged violations under the Takings Clause, the Due Process Clause, and the
Fourth Amendment, but none of these allegations states a claim. For instance, plaintiffs
alleged that the defendants violated the Takings Clause when they failed to provide fair
compensation for personal property lost or damaged during the demolition. The
demolition, however, was not an exercise of the county’s takings power but rather its police
power, which is broader than the takings power and generally will not require
compensation for affected property owners. See Keystone Bituminous Coal Ass’n v.
DeBenedictis, 480 U.S. 470, 481-84 (1987); Casitas Mun. Water Dist. V. United States, 556 F.3d
1329, 1332 n.2 (Fed. Cir. 2009).
In any event, a takings claim is unripe because the plaintiffs have not alleged that
they have sought and been denied compensation at the state level. Williamson County Reg’l
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Planning Comm’n v. Hamilton Bank of Johnson County, 473 U.S. 172, 195 (1985); Muscarello v.
Ogle County Bd. Of Comm’rs, 2010 WL 2541067, at 5 (7th Cir. June 24, 2010); Peters v. Vill. of
Clifton, 498 F.3d 727, 732 (7th Cir. 2007).
The procedural due process claim is similarly meritless. Plaintiffs alleged that they
never had an opportunity to retrieve their belongings from the Galston property because
Williams and Dunnuck failed to take reasonable measures to apprise them of the
demolition. The plaintiffs’ allegations make clear that their claim is based on “random and
unauthorized” conduct of state actors—Williams and Dunnuck—as opposed to a
deprivation based on established state procedure. For a party alleging such a procedural
due process claim based on “random and unauthorized” conduct, the plaintiff must “either
avail himself of state post-deprivation remedies ‘or demonstrate that the available remedies
are inadequate.’” Leavell v. Illinois Dep’t of Natural Res., 600 F.3d 798, 805 (7th Cir. 2010)
(internal quotation omitted); Doherty v. City of Chicago, 75 F.3d 318, 323 (7th Cir. 1996). But
the plaintiffs have alleged neither that they sought relief nor that the relief available at the
state level was inadequate. Indiana law provides adequate remedies for property
deprivations caused by state officials. See IND. CODE § 34-27-3-1 (state-provided mandamus
action); see also New Burnham Prairie Homes v. Burnham, 910 F.2d 1474, 1480 (7th Cir. 1990)
(holding that mandamus action was an adequate state-law remedy for violations of due
process); Belcher v. Norton, 497 F.3d 742, 751 (7th Cir. 2007). Because plaintiffs have not
alleged that the state’s post-deprivation remedies failed to satisfy due process, they have not
stated a due process violation.
Perhaps the most difficult allegations to assess are those involving the Fourth
Amendment. These allegations are poorly pleaded, but plaintiffs appear to allege that
Williams and the Barber brothers violated the Fourth Amendment when they seized their
personal property and refused to return it and then threatened to arrest Waldon, or even
raise the costs of removal, should she persist in demanding the return of her belongings.
Conceivably the complaint could be read to allege a less plausible theory: that the seizure
was unreasonable because the defendants carried it out despite knowing that Small and
Waldon were unlikely to have received notice of the demolition order.
In determining whether a complaint states a claim under the Fourth Amendment,
this court examines whether the defendants’ alleged conduct constituted an unreasonable
seizure. Brokaw v. Mercer County, 235 F.3d 1000, 1010 (7th Cir. 2000). It cannot be disputed
that the physical removal of plaintiffs’ belongings from the demolition site constituted a
“seizure” under the Fourth Amendment. See Soldal v. Cook County, Ill., 506 U.S. 56, 62-63
(1992); Lee v. City of Chicago, 330 F.3d 456, 460 (7th Cir. 2003); Perry v. Sheahan, 222 F.3d 309,
316 (7th Cir. 2000).
No. 09-3238 Page 6
But have plaintiffs alleged that the seizure was unreasonable? That the defendants
acted pursuant to a court order suggests it was reasonable, see Soldal, 506 U.S. at 549; Perry,
222 F.3d at 316, but an authorized seizure is not reasonable if carried out in an unreasonable
manner. See Brokaw, 235 F.3d at 1011. The plaintiffs, however, have not alleged anything
unreasonable about the seizure itself. If Williams and the Barbers showed poor judgment
by threatening to either arrest Waldon or hike up demolition fees, nothing they did or said
took on constitutional proportions. Moreover, we have rejected the notion that an
unreasonable seizure can be continuous, so any Fourth Amendment theory predicated on
the defendants continued possession of the personal property is without merit. See Lee v.
City of Chicago, 330 F.3d 456, 466 (7th Cir. 2003).
Finally, the defendants’ failure by itself to properly notify the defendants would not
expose them to liability under the Fourth Amendment. For an officer to face liability for
executing a preauthorized seizure, he must have executed it with knowledge that the
authorization was defective. See Dunn v. City of Elgin, 347 F.3d 641, 648-49 (7th Cir. 2003);
Siebert v. Severino, 256 F.3d 648, 656-57 (7th Cir. 2001); Perry, 222 F.3d at 315. But here the
plaintiffs did not allege that the authorization was defective, or that Indiana law would
nullify a demolition order because of improper service of notice. Because they have not
alleged that the defendants ever had reason to doubt their authority to execute the court’s
order, they have not stated a claim under the Fourth Amendment.
AFFIRMED.