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Dewitt v. City of Greendale Unsafe Building Department

United States District Court, S.D. Indiana, New Albany Division

September 30, 2014



RICHARD L. YOUNG, Chief District Judge.

Plaintiff, Leonard A. Dewitt, brings this civil rights action pro se pursuant to 42 U.S.C. § 1983 against the defendants, the City of Greendale Unsafe Building Department, Mayor Doug Hedrick, Chief Administrative Officer Steve Lampert, Code Compliance Officer Al Putnam, and seven members of the City Council, in their individual and official capacities. Specifically, Plaintiff claims the Defendants' actions in removing his mobile home pursuant to an Unsafe Building Act and subsequently levying execution against the real estate to pay the judgment for the costs of the removal of the mobile home violated his rights to procedural due process, his right to equal protection, and constituted a taking of his property in violation of the Fifth Amendment. Plaintiff moves for summary judgment on the merits of his claims. Defendants move to strike Plaintiff's designation of the evidence in support of his motion for summary judgment. Defendants also move for summary judgment on a multitude of grounds, including res judicata and the statute of limitations. For the reasons set forth below, the court GRANTS the Defendants' motion, DENIES the Plaintiff's motion, and DENIES AS MOOT Defendants' motion to strike.

I. Background

Plaintiff is the former owner of a mobile home and real estate in Greendale, Indiana, who was incarcerated in 2004. (Filing No. 44 at 5, ¶¶ 15, 17). On August 24, 2005, the Administrative Officer of the City's Unsafe Building Department, Mr. Lampert, issued an order that declared the home unsafe and a threat to public health, ordered Plaintiff to remove the home from the real estate within 90 days, and notified Plaintiff of a hearing scheduled for September 14, 2005, before the Hearing Authority of the Unsafe Building Department. (Filing No. 29-3 at ¶ 3; Filing No. 44 at 17, ¶ 7). The order was mailed to Plaintiff in prison. (Filing No. 44 at 17, ¶¶ 11, 14). A representative of Plaintiff appeared and participated in the hearing. (Filing No. 44 at 18, ¶¶ 19-23). At the conclusion of the hearing, the Hearing Authority unanimously affirmed the order. (Filing No. 44 at 19, ¶ 24).

Plaintiff did not timely appeal the decision of the Hearing Authority pursuant to Ind. Code § 36-7-9-8. (Filing No. 44 at 19, ¶ 34). Therefore, on May 3, 2006, the Unsafe Building Authority demolished the house and removed it from Plaintiff's real estate. (Filing No. 29-3, ¶ 8; Filing No. 44 at 19, ¶ 38). The City later obtained a judgment against Dewitt and sold his real estate at a Sheriff's sale to satisfy the demolition costs. (Filing No. 44 at 20, ¶ 45).

On August 6, 2007, Plaintiff brought a § 1983 lawsuit (the "First Lawsuit") in this court against the Unsafe Building Department, the City's Code Compliance Officer, the City's Chief Administrative Officer, and the individual members of Greendale's City Council, alleging, inter alia, that defendants committed an unconstitutional taking and violated his right to due process when they issued an order to demolish his home, without providing him time to bring his home into compliance with the City's building code. (Cause No. 2:07-cv-204-RLY-WGH, Filing No. 1). The court entered summary judgment for the defendants on September 15, 2009, under the "special ripeness doctrine" articulated in Williamson Cnty. Reg'l Planning Comm'n, 473 U.S. 172 (1985). (Cause No. 2:07-cv-204-RLY-WGH, Filing No. 63). That doctrine requires a plaintiff to exhaust his administrative remedies by filing a claim for inverse condemnation in state court for the alleged taking of his property before filing a claim in federal court. ( See id. at pp. 2-3). Plaintiff did not do so.

On March 18, 2010, Plaintiff filed a lawsuit for essentially the same civil rights violations against the same parties, as well as a claim for inverse condemnation, in Dearborn Circuit Court. (Filing No. 44 at 21). On November 22, 2010, the court dismissed that action without prejudice for lack of subject matter jurisdiction, insufficiency of process, insufficient service of process, and res judicata. ( Id. ).

On January 10, 2011, Plaintiff then filed another action for inverse condemnation (the "Third Lawsuit") in the Dearborn Circuit Court, alleging the same civil rights violations (due process/takings) against the same parties. (Filing No. 44 at 21, 30-49). On October 4, 2011, the court dismissed the Third Lawsuit, and found the decision in the First Lawsuit res judicata with respect to Plaintiff's Complaint. The court further found that it had no jurisdiction to hear Plaintiff's Complaint because Dewitt did not appeal the Unsafe Building Department's Order within ten days as required by Indiana law. ( Id. at p. 21). On appeal, the Indiana Court of Appeals affirmed the judgment of the court. See Dewitt v. Unsafe Bldg. Dep't, No. 15A04-1110-MI-567, 970 N.E.2d 271 (Ind.Ct.App. 2012) (unpublished disposition).

On March 5, 2013, Dewitt filed the present action (the Fourth Lawsuit). (Filing No. 1).

II. Summary Judgment Standard

The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is appropriate if the record "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

III. Discussion

The parties' motions for summary judgment address different issues. Because the court agrees with the Defendants that Plaintiff's case is barred by the doctrine of res judicata and the statute of limitations, the court need not address the balance of the ...

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