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Daw v. Consolidated City of Indianapolis and Marion County

United States District Court, S.D. Indiana, Indianapolis Division

June 1, 2017

NANCY A. DAW, STEPHEN L. HOBACK, Plaintiffs,
v.
CONSOLIDATED CITY OF INDIANAPOLIS AND MARION COUNTY, Defendant.

          ORDER

          Hon. Jane Magnus-Stinson, Chief Judge.

         This case arises from a dispute between pro se Plaintiffs Nancy Daw and Stephen Hoback (collectively “Plaintiffs”) and Defendants Marion County and the City of Indianapolis (collectively “Defendants”) regarding a portion of Plaintiffs' property. Defendants acquired a portion of Plaintiffs' property via a condemnation action in Indiana state court. Plaintiffs allege that this acquisition occurred in violation of their rights under the Due Process and Equal Protection Clauses of the United States Constitution. They filed the instant suit, requesting compensatory and injunctive relief under 42 U.S.C. § 1983. Defendants have moved for judgment on the pleadings, which Plaintiffs oppose. For the reasons described below, the Court grants Defendants' Motion and dismisses Plaintiffs' Complaint without prejudice.

         I.

         Background

         Plaintiffs reside at 4110 Ritterskamp Court in Indianapolis, Indiana, and a portion of that property is the subject of the current dispute between Plaintiffs and Defendants.[1] [Filing No. 1.] The subject property is “Lot 7” in the 1958-platted Dean Meadows subdivision. [Filing No. 1 at 3.] Plaintiffs received a letter from the Indianapolis Department of Public Works (“DPW”) dated August 28, 2012, informing them that, concerning Ritterskamp Court, DPW determined that it was necessary to “widen the roadway, where appropriate, to accommodate solid waste trucks.” [Filing No. 1 at 11.] This project included the “appropriation of a part of Plaintiffs [sic] Lot No. 7, ” along with several other neighboring lots. [Filing No. 1 at 10.] On March 8, 2013, Plaintiffs sent an email requesting information regarding the project to the City Board of Public Works, including to DPW Director Lori B. Miser. [Filing No. 1 at 11.] Plaintiffs' City-County Councillor forwarded to Plaintiffs Ms. Miser's response, in which she stated, “Board of Public Works members and others, DPW will take care of this. This is an on-going issue that we have been working on for some time.” [Filing No. 1 at 11.]

         On May 29, 2013, the City of Indianapolis filed a Complaint for the Appropriation of Real Estate regarding the subject portion of Plaintiffs' Lot 7.[2] [Filing No. 17-1.] According to the written judgment, all Defendants “were properly served with summons and notice as required by statute.” [Filing No. 17-1 at 1.] The judgment states that on June 6, 2013, Ms. Daw and Mr. Hoback appeared as trustees of Blue Diamond Revocable Trust, another defendant in that action. [Filing No. 17-1 at 2.] The judgment also indicates that “[n]o Defendant filed timely objection to the appropriation of the real estate interest the Plaintiff seeks to acquire.” [Filing No. 17-1 at 2.] On May 2, 2014, court-appointed appraisers filed a report stating that Defendants had sustained total damages of $7, 500, and no party filed any exceptions to the appraisal. [Filing No. 17-1 at 2.] The court directed the City to deposit $7, 500 with the Clerk of the Court, which it did on July 1, 2014. [Filing No. 17-1 at 2.] The court then decreed that the City holds a fee simple interest in the subject portion of real estate, and ordered that the defendants should recover $7, 500 as total just compensation for the City's appropriation. [Filing No. 17-1 at 2-3.]

         Plaintiffs allege that the road widening and resurfacing work began on September 29, 2014. [Filing No. 1 at 4.] They contend that subcontractors of DPW:

…removed all valid and legally set Survey Markers from Lot #7, and removed and destroyed all valid Property Interests including keeping the front section of the parcel, Lot # 7, as a Private, landscaped front garden which included trees, shrubs, rocks, boulders, and flowers in specific placements and in high grade special composition soil. Said soil included WOOD CHIPS as a Storm Water Filtration System in a designated Environmentally Sensitive Area and a designated Flood Plain.

[Filing No. 1 at 4.]

         Plaintiffs contend that the Woodacre Section IV subdivision, also situated within Marion County, is comprised of 14 lots with an easement for a cul-de-sac street that was never constructed. [Filing No. 1 at 8.] Plaintiffs allege that a resurfacing project was completed in the Woodacre subdivision without requiring “any change in the layout of the private driveways or any change in the layout of the platted cul-de-sac easement.” [Filing No. 1 at 10.] Plaintiffs allege that they were treated differently than these similarly situated cul-de-sac residents. [Filing No. 1 at 10.]

         Plaintiffs also make the following factual allegations:

• The Marion County Assessor and DPW divided Lot 7 by deed. [Filing No. 1 at 3.]
• There was no Board of Public Works resolution regarding the reconstruction, resurfacing, widening, or rebuilding of Ritterskamp Court. [Filing No. 1 at 12.]
• Plaintiffs have been deprived of legal access to a public street and deprived of the use of a cul-de-sac street as a cul-de-sac street. [Filing No. 1 at 12.]
• “Underlying the City's decision to treat Plaintiffs differently from other subdivision lot owners was increasing animus towards Plaintiffs who previously believed that City officials must have documentation to support their assertion that the Dean Meadows private driveway was a legal public street, but came to realize, after years of fruitless searching, that no supporting documentation existed, and that they had been misled.” [Filing No. 1 at 13.]
• “The City's motivation to illegally resubdivide platted land and to insist that a narrow, loop-configured private driveway was a public cul-de-sac street was twofold: a desire to conceal the fact that no legal cul-de-sac street was constructed in accordance with the plat, which was a violation of subdivision control ordinances, and a desire to destroy and cause ruination to ...

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