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Pannell v. The City of Columbus

United States District Court, N.D. Mississippi, Aberdeen Division

September 29, 2014



NEAL B. BIGGERS, District Judge.

Presently before the court is Defendant's motion to dismiss [9]. Upon due consideration of the motion, response, and supporting and opposing authority, the court is ready to rule.

Factual and Procedural Background

Larry Pannell owned the property located at 708 5th Street South in the Columbus, Mississippi city limits in 2012.[1] On October 16, 2012, a summons and notice of hearing was issued regarding an alleged City of Columbus ordinance violation on that property. The violation was initially set for hearing at the November 6, 2012 City Council meeting, but was continued for two weeks. The violation was again brought up before the City Council on November 20, 2012. At that hearing, Larry Pannell indicated he would clean up the property. Plaintiffs contend he "made it clear he was trying to salvage unique and antique items from the structures on the Property." The City Council thereafter entered an order giving Pannell fortyfive days to clean up the property, after which the City "may remove the dilapidated buildings." At the February 2013 City Council meeting, the Mayor signed an order to demolish the structures on the property. Plaintiffs contend that no evidence was presented at the meeting, no hearing officer was appointed, and no notice was given to the Plaintiffs for that attempted hearing.

The City of Columbus later removed all the antique building items from the property. Plaintiffs contend that the City did not follow their own ordinance procedures, including holding an improper hearing with no appointing hearing officer, and a lack of presentation of evidence. Further, Plaintiffs assert that the City of Columbus "acted arbitrarily... in a manner that is not legal, denie[d] due process to the rightfully owned property of the Plaintiffs, deprive[d] the Plaintiffs of their right in that property, denie[d] equal protection under the law to the Plaintiffs, and the Plaintiffs have suffered damages as a result of this denial of due process."

The City of Columbus filed this Motion to Dismiss arguing that because Plaintiffs did not avail themselves of the appropriate state court procedure prior to filing the instant federal court action, this claim is not ripe for adjudication and must be dismissed.

Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of the complaint and raises an issue of law. When reviewing a motion to dismiss, the court "accepts all well pleaded facts as true, viewing them in the light most favorable to the plaintiff." Guidry v. American Pub. Life Ins. Co., 512 F.3d 117, 180 (5th Cir. 2007). "Factual allegations must be enough to raise a right to relief above the speculative level, on assumption that all allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007).

In ruling on a Rule 12(b)(6) motion to dismiss, the court generally may not look beyond the pleadings; however, matters of public record are exceptions. Cinel v. Connick, 15 F.3d 1338, 1341, 1343 n.6 (5th Cir. 1994).


Defendant moves to dismiss Plaintiffs' "takings" claims on the grounds that they are not ripe for the Court's consideration. Defendant argues that Plaintiffs have not pursued compensation for the alleged takings through state procedures, as they are required to do under applicable Fifth Circuit law. See Waltman v. Payne, 535 F.3d 342, 348-49 (5th Cir. 2008).

The Takings Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, directs that "private property" shall not "be taken for public use, without just compensation." Urban Developers LLC v. City of Jackson, Miss., 468 F.3d 281, 292 (5th Cir. 2006) (internal citation omitted). "In determining whether government action affecting property is an unconstitutional deprivation of ownership rights under the Just Compensation clause, a court must interpret the word taken.' When the government condemns or physically appropriates the property, the fact of a taking is typically obvious and undisputed." Tahoe-Sierra Pres. Council, Inc., et al. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 322 (2002)

Before addressing the merits of the claim, however, the court must be convinced that the claim in question is ripe. See Samaad v. City of Dallas, 940 F.2d 925, 933 (5th Cir. 1991). Ripeness is a question of law that implicates this Court's subject matter jurisdiction. Sandy Creek Investors, Ltd. v. City of Jonestown, Tex., 325 F.3d 623, 626 (5th Cir. 2003). The Supreme Court has adopted a two-prong test for ripeness under the Fifth Amendment's Takings Clause, explaining that such claims are not ripe until (1) the relevant governmental unit has reached a final decision as to how the regulation will be applied to the landowner; and (2) the plaintiff has sought compensation for the alleged taking through whatever adequate procedures the state provides and has been denied just compensation. See Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186-96 (1985). The property owner bears the burden of proving that state law proceedings are unavailable or inadequate. Id. at 196-97.

The "adequate procedures" the Defendant cites are the Mississippi Code Section cited above providing for an appeal of a municipal board's decision and Mississippi's inverse condemnation law. Mississippi law provides for inverse-condemnation actions, see e.g., City of Gulfport v. Anderson , 554 So.2d 873, 874 (Miss. 1989), yet Plaintiffs have not sought compensation through Mississippi law for the alleged taking. See Bryan v. City of Madison, Mississippi , 213 F.3d 267, 276 (5th Cir. 2000) (rejecting a takings claim as unripe because the property owner had not first resorted to Mississippi's court of eminent domain). Further, the statute under which Pannell's property was condemned is cited as Mississippi Code Section 21-19-11. That ...

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