Ferruccio v. Davis

1

DEBORAH FERRUCCIO, Plaintiff, v. TARE DAVIS, in his official capacity as Chairperson, Warren County Board of Commissioners, and WARREN COUNTY. NC, Defendants.

No. 5:19-CV-346-BO

United States District Court, E.D. North Carolina, Western Division

June 9, 2023

ORDER

TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE

This cause comes before the Court on defendants' renewed motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has responded defendants have replied, and plaintiff has filed a sur-reply which defendants have moved to strike and plaintiff has sought leave to file. A hearing on the motions was held before the undersigned on June 2, 2023, at Raleigh, North Carolina. In this posture, the motions are ripe for ruling. For the reasons that follow, plaintiffs sur-reply is stricken and defendants' motion for summary judgment is granted.

BACKGROUND

Plaintiff proceeding in this action pro se, challenges Warren County's January 3, 2011, passage of an ordinance that regulates noise within the county. The noise ordinance at issue, Warren County, North Carolina, Municipal Code §§ 91.01-91.13 (herein after Noise Ordinance) contains restrictions on levels of sound which emanate from properties within Warren County's jurisdiction. The Noise Ordinance contains limited exceptions for High Impact Land Use (H1LU) properties, which include swine farms, waste processing facilities, and, at issue here, drag-strips or racetracks. The Noise Ordinance HILU exceptions allow these types of properties to exceed the comprehensive noise level restrictions during certain daytime hours.^[1] Noise Ordinance § 91.07(e).

Plaintiff owns property in Warren County located at 297 Davis Hymn Road in Norlina. Her home is located in the woods approximately a mile off of the paved road. Her nearest neighbor is more than a half-mile away. Plaintiff purchased her home on Davis Hymn Road in 1977 and has enjoyed its tranquil setting. Plaintiff was entertaining family members at her home on Sunday, November 3, 2017, when she heard loud, persistent noises from another property a few hundred feet from her property line. Plaintiff discovered that a neighboring tract of undeveloped property had been turned into Country Boys Racing and ATV and Recreation Park (Country Boys Racing). Plaintiff claims that her tranquil home became subjected to the whims of this business, which on any given day amassed as many as three hundred spectators to watch as many as fifty racing participants.

Plaintiff alleges that when Warren County approved its Noise Ordinance in 2011, it showed deliberate indifference to the safety and welfare of its citizens by classifying drag racing and racetrack operations as HILUs and exempting all HILUs from the noise regulations developed throughout the ordinance. Plaintiff alleges claims under 42 U.S.C. § 1983 and asks that the Court find Section 7: Nuisance & Noise Pollution - E Exemptions (18) of the Warren County Ordinance for the Regulation of Sound Crossing Real Property Boundaries Including High Impact Land Uses & Polluting Industries to be unconstitutional under the Due Process Clause of the United States Constitution and to award plaintiff reasonable attorney fees. Plaintiff alleges that she has suffered the following injuries: deprivation of the enjoyment and use of her property since the drag-racing operation began; loss of her feeling of safety on her property; loss of income from tutoring due to the noise from the drag-racing operation; a reduction in tax valuation of her property due to “obstruction of the road;" and alienation from her daughter and grandchildren, who were frightened and emotionally disturbed by the noises emanating from the drag-race operation.

This Court previously granted summary judgment to defendants, finding plaintiff s claims were time-barred. Plaintiff appealed, and the court of appeals vacated this Court's decision and remanded for further proceedings. The court of appeals held that plaintiff s claims were timely, but “express[ed] no opinion on the merits of Ferruccio's claims." [DE 52 p. 3]. Following remand, this Court permitted defendants an opportunity to renew any bases for summary judgment not previously addressed. Defendants have done so, and the motion is ripe for review.

DISCUSSION

1. Motion to strike and motion for leave to file.

Defendants have moved to strike plaintiff s sur-reply to its motion for summary judgment. Neither the Federal Rules nor this Court's Local Civil Rules provide for the filing of surreplies. “Generally, courts allow a party to file a surreply only when fairness dictates based on new arguments raised in the previous reply." DiPaulo v Potter, 733 F.Supp.2d 666, 670 (M.D. N.C. 2010).

Plaintiff has not responded to defendants' motion to strike but has filed a motion for leave to file a surreply. In her motion, plaintiff contends that her surreply addresses arguments made for the first time in defendants' reply brief, and she has attached as her proposed surreply the surreply she filed on February 13, 2023. In her motion, however, plaintiff does not identify any new argument raised by defendants in their reply. The Court's review of the filings confirms defendants' position that no new cases have been cited or arguments raised in their reply.

Accordingly, the Court denies plaintiff s motion for leave and grants defendants' motion to strike plaintiffs surreply.

II. Motion for summary judgment.

A motion for summary judgment may not be granted unless there are no genuine issues of material fact for trial and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). In determining whether a genuine issue of material fact exists for trial, a trial court views the evidence and the inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, “[t]he mere existence of a scintilla of evidence" in support of the nonmoving party's position is not sufficient to defeat a motion for summary judgment. Anderson v. Liberty' Lobby. Inc., 477 U.S. 242, 252 (1986). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. . . . and [a] fact is material if it might affect the outcome of the suit under the governing law." Libertarian Party' of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (internal quotations and citations omitted). Speculative or conclusory allegations will not suffice. Thompson v. Potomac Elec. Power Co.. 312 F.3d 645, 649 (4th Cir. 2002).

At the outset, the Court notes that plaintiff concedes that her claims against Mr. Davis in his official capacity are duplicative of her claims against Warren County. They are, therefore, appropriately dismissed.

42 U.S.C. § 1983 provides a cause of action for alleged constitutional violations. To establish a claim, plaintiff must prove that one of her rights, secured by the Constitution or laws of the United States, has been violated, and that the violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff alleges that the Noise Ordinance exemption which permitted Country Boys Racing to operate near her home denied plaintiff the due process rights of life, liberty, or property.^[2]

The substantive component of the Due Process Clause of the Fourteenth Amendment “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,' but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. . . . Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.

Deshaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 195 - 96 (1989). In light of the Supreme Court's holding in Deshaney, courts have held that “[a] § 1983 action is not a substitute forum for the . . . administration of [a] noise ordinance.” Citizen's Assoc, of Portland v. Int'l Raceways, Inc., 833 F.2d 760, 761 (9th Cir. 1987); see also Devaney v. Kilmartin, 88 F.Supp.3d 34, 57 (D.R.L 2014) (“it is well settled that a due process claim cannot be based simply on a town's refusal to enforce an ordinance.”). Because defendants have no constitutional obligation to enact a noise ordinance or enforce it in a particular way, plaintiff s due process claim fails.

In her opposition to defendants' motion, plaintiff argues that the state-created danger exception recognized implicitly in Deshaney applies to this case. However, in this circuit, the state-created danger exception has not since 1995 been recognized in a published opinion, and the...