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Daw v. Consolidated City of Indianapolis and Marion County

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

October 11, 2017



          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. Plaintiffs allege that Defendants have violated their rights under the Due Process Clause of the United States Constitution. Following a dismissal of their original complaint, they filed an Amended Complaint in this Court, requesting compensatory and injunctive relief under 42 U.S.C. § 1983. Defendants have moved to dismiss the Amended Complaint, [Filing No. 35], which Plaintiffs oppose. For the reasons described below, the Court grants Defendants' Motion and dismisses Plaintiffs' Complaint without prejudice.


         Background [1]

         Plaintiffs reside at 4110 Ritterskamp Court in Indianapolis, Indiana, and that property is the subject of the current dispute between Plaintiffs and Defendants. [Filing No. 34 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… Land acquisition will be necessary to complete this project and establish permanent right of way.” [Filing No. 34 at 18.] The land acquisition included part of Lot #7, owned by Plaintiffs. [Filing No. 34 at 18.] In the spring of 2013, DPW purchased parts of platted lots in Dean Meadows subdivision by use of a subdivision-by-deed procedure. [Filing No. 34 at 20.] On April 20, 2013 and April 27, 2013, the following “offer to purchase” notice appeared in the Indianapolis Star:

NOTICE TO: Blue Diamond Revocable Trust, Co-Trustees Nancy A. Daw and Stephen L. Hoback. Nancy A. Daw, Life Estate Interest and Stephen L. Hoback, Life Estate Interest. The City of Indianapolis, through its Department of Public Works needs to acquire a right-of-way across property located at 4110 Ritterskamp Court, Indianapolis, Indiana 46250, for a public improvement project under Project Number ST-05-020. The real estate, in its entirety, is described as follows: Lot 7 in Dean Meadows, a subdivision in Washington Township, Marion County, Indiana, as per plat thereof recorded as Instrument Number 74-40935 in Plat Book 31, Page 57, in the Office of the Recorder of Marion County, Indiana. Commonly known as 4110 Ritterskamp Court, Indianapolis, Indiana 46250. Tax Parcel 49-02-29-123-011.000-800. We have made you a formal offer for a right of way that is now on file in the Marion County Clerk's Office, 200 East Washington Street, Indianapolis, Indiana 46204. Please pick-up the offer. If you do not respond to this Notice or accept the offer by May 28, 2013, we shall file a suit to condemn the property. CITY OF INDIANAPOLIS DEPARTMENT OF PUBLIC WORKS Alex Beatty Assistant Corporation Counsel (317) 327-4055 (S 42013, 42713 - 6058194)

[Filing No. 34 at 21.] Plaintiffs had no knowledge of this notice. [Filing No. 34 at 21.]

         On May 29, 2013, the City of Indianapolis filed a Complaint in Marion Superior Court for the Appropriation of Real Estate regarding the subject portion of Plaintiffs' Lot 7. [Filing No. 34 at 23.] That complaint stated that “Plaintiff has prepared and adopted plans for a public improvement project in order to resurface Ritterskamp Court, located in Indianapolis, Marion County, Indiana.” [Filing No. 34 at 34 (emphasis removed).] On June 6, 2013, Ms. Daw and Mr. Hoback appeared as trustees of Blue Diamond Revocable Trust in that action. [Filing No. 34 at 24.]

         According to the written judgment in that action, all Defendants “were properly served with summons and notice as required by statute.” [Filing No. 17-1 at 1.] 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.[2][Filing No. 17-1 at 2-3.]

         On September 23, 2014, DPW sent a letter to Plaintiffs stating that “[t]he property in front of your residence was acquired by eminent domain.” [Filing No. 34 at 37.] On September 29, 2014, “under the direction and control of Defendant and accompanied by City Police officers, Calumet City Contractors trespassed upon Lot #7 in Dean Meadows and proceeded to demolish, destroy, excavate and confiscate property, both real & personal, depriving Plaintiffs of their constitutionally protected right to exclude others, right against trespass, right of quiet enjoyment and legal right to access the platted Cul-de-sac street.” [Filing No. 34 at 39.]

         Plaintiffs filed their initial Complaint in this Court on September 26, 2016, alleging violations of the Due Process and Equal Protection Clauses of the United States Constitution and 42 U.S.C. § 1983. [Filing No. 1.] Defendants filed an Answer to the Complaint, [Filing No. 8], and then a Motion for Judgment on the Pleadings, [Filing No. 16]. The Court granted that Motion without prejudice, [Filing No. 30], allowing Plaintiffs to file an Amended Complaint if they wished to continue to pursue this action. Plaintiffs timely filed an Amended Complaint, [Filing No. 34], alleging only violations of their due process rights under the Fourteenth Amendment to the United States Constitution. Defendants have filed a Motion to Dismiss, [Filing No. 35], which is now fully briefed and ripe for the Court's review.



         Defendants make two arguments in support of their Motion to Dismiss. First, they argue that Plaintiffs' Amended Complaint is “largely incomprehensible, in violation of the general pleading requirements as well as the Court's previous order.” [Filing No. 37 at 1.] Second, they contend that this Court lacks subject matter jurisdiction over Plaintiffs' claims, ...

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