Hodge v. Gov't of the V.I.

1

LAWRENCE E. HODGE and MARIA T. HODGE, Plaintiffs, v. GOVERNMENT OF THE VIRGIN ISLANDS, DEPARTMENT OF PLANNING AND NATURAL RESOURCES, ANDREW SMITH, EXECUTIVE DIRECTOR, VIRGIN ISLANDS WATER AND POWER AUTHORITY, and ALVIN NEWTON, Defendants.

No. 3:22-cv-00072

United States District Court, D. Virgin Islands, St. Thomas and St. John Division

July 5, 2023

Appearances:

MARIA TANKENSON HODGE, ESQ. HODGE & HODGE ST. THOMAS, U.S VIRGIN ISLANDS FOR PLAINTIFFS LAWRENCE E. HODGE AND MARIA T HODGE

SHEENA CONWAY, ESQ. ASSISTANT ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL ST. THOMAS, U.S. VIRGIN ISLANDS FOR DEFENDANTS GOVERNMENT OF THE VIRGIN ISLANDS AND ALVIN NEWTON

PATRICIA QUINLAND, ESQ. ASSISTANT GENERAL COUNSEL VIRGIN ISLANDS WATER & POWER AUTHORITY ST. THOMAS, U.S. VIRGIN ISLANDS FOR DEFENDANT ANDREW SMITH

MEMORANDUM OPINION

ROBERT A. MOLLOY, Chief Judge

BEFORE THE COURT is Defendants Government of the Virgin Islands (GVI)^[1]and Alvin Newton's Motion to Dismiss for Failure to Exhaust Administrative Remedies (Mot.), filed on February 3, 2023. (ECF No. 17.) Plaintiffs filed an opposition to the motion on February 7, 2023. (ECF No. 18.). Defendants filed a reply thereto on February 23, 2023. (ECF No. 20). For the reasons stated below, the Court will deny the motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs allege that they own certain property in St. Thomas, U.S. Virgin Islands, that, at the time of purchase in 1981 to September 2017, was improved with a structure housing four separate apartment units. Complaint (Compl.) (ECF No. 1) at ¶¶ 8-9. The structure was greatly damaged by Hurricane Irma. Id. at ¶ 12. Plaintiffs reconstructed the building, restoring the four apartment units. Id. at ¶¶ 13, 16. Plaintiffs assert that they complied with all permitting requirements prior to the reconstruction. Id. at ¶¶ 14-15. According to Plaintiffs, prior to the hurricane, each apartment unit had its own dedicated electric meter, with a fifth electric meter that powered the common areas of the building (designated the “House” meter), and each tenant of the separate units were billed and paid for the electricity for that unit and Plaintiffs received the bill and paid the amounts generated by the fifth “House” meter. Id. at ¶¶ 9-11.

After the reconstruction was complete, in or about September 2022, Plaintiffs claim that for the first unit they rented, the tenant was allowed electric service for that unit. Id. at 16. Thereafter, for the second and third units they rented, Plaintiffs allege that they were instructed by Virgin Islands Water and Power Authority (“WAPA”) that the Virgin Islands Department of Planning and Natural Resources (“DPNR”) needed to approve those units for electric service before the electric meters could be energized for those units. Id. at ¶¶ 16-18. Plaintiffs allege that Defendant Alvin Newton (Newton), acting as a DPNR inspector, advised them that a “house” meter for common areas was not allowed, according to a WAPA “rule,” and, since they had four apartments and four meters (the designated “House” meter and meters for three of the four apartment units) already approved for service, he could not approve electric service for a fifth meter (for the fourth apartment). Id. at ¶¶ 18-19. Consequently, based upon this “rule,” Newton allegedly refused to supply Plaintiffs with a DPNR approval for electric service for all four apartment units, plus the ”House” meter. Id. at ¶ 19. Upon inquiry with WAPA, however, Plaintiffs were told that no such rule existed. Id. at ¶ 20.

Plaintiffs claim that they sought relief from Defendant Andrew Smith, Director of WAPA, to no avail. Id. at ¶ 25. They also allege that, when initially contacted by Plaintiff Lawrence Hodge, Newton's supervisor agreed to issue approval of the sought-after electric service, but, then, did not do so. Id. at ¶¶ 26-27. In addition, Plaintiffs allege that when Newton cited the WAPA “rule” preventing him from approving electric service for a fifth meter for their apartment building, he also related that he was angry with Plaintiff Lawrence Hodge for allegedly not returning a “pan” that Newton had brought to a party held at said Plaintiff's home. Id. at ¶ 23. Based upon this accusation, Plaintiffs believe that Newton made up the alleged WAPA “rule” upon which he relied and wrongfully exercised his authority as a DPNR inspector by refusing to approve the requested electric service to “punish” said Plaintiff. Id. at ¶ 24.

Plaintiffs charge Defendants with depriving Plaintiffs of their constitutional rights in violation of Section 1983 of Title 42 of the United States Code and tortiously interfering with their contracts. Id. at 8-10. They seek money damages and injunctive relief. Id. at 10. Defendants GVI and Newton move to dismiss for failing to state a claim upon which relief can be granted.^[2]

II. LEGAL STANDARD

Pursuant to Rule 12 of the Federal Rules of Civil Procedure, a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When deciding a Rule 12(b)(6) motion to dismiss, the Court must accept as true all the factual allegations contained in the complaint and draw all reasonable inferences in favor of the non-moving party. Alston v. Parker, 363 F.3d 229, 233 (3d Cir. 2004). See also Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (where the court reiterates the (12(b)(6) standard: "[W]e must ‘accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine, whether under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" (quoting Phillips v. Cnty of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). Further, “a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) cert. denied, 562 U.S. 1271 (2011).

The Supreme Court set forth the “plausibility” standard for overcoming a motion to dismiss in Bell Atlantic v. Twombly, 550 U.S. 544 (2007) and refined this approach in Ashcroft v. Iqbal, 556 U.S. 662 (2009). The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A complaint satisfies the plausibility standard when the factual pleadings “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “‘merely consistent with' a defendant's liability, . . . ‘stops short of the line between possibility and plausibility of “entitlement of relief.”"' Id. (citing Twombly, 550 U.S. at 557).

To determine the sufficiency of a complaint under the plausibility standard, the Court must take the following three steps:

First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 674, 679).

III. DISCUSSION

Plaintiffs allege a claim pursuant to Section 1983 of Title 42 of the United States Code in Count I of their Complaint. In Count II, they assert a claim for tortious interference with contract. Defendants GVI and Newton move to dismiss the complaint for failure to exhaust administrative remedies.^[3]

A. Failure to Exhaust Administrative Remedies

Courts have widely held that “[f]ailure to exhaust administrative remedies is an affirmative defense that defendants bear the burden to plead and prove.” Cerome v. Moshannon Valley Corr. Center, No. 09-2070, 2010 U.S. App. LEXIS 24938, at *6 (3d Cir. Dec. 7, 2010) (citing Jones v. Bock, 549 U.S. 199, 216 (2007); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003)). See also Nuttall v. Dallas Indep. Sch. Dist., Case No. 3:20-cv-3342-M-BK, 2021 U.S. Dist. LEXIS 192954, at *7 (N.D. Tex. Sept. 1, 2021) (“Failure to exhaust is an affirmative defense, and" [a] court should . . . dismiss a case only if an affirmative defense or other bar to relief appears on the face of the complaint.”) (citing Garrett v. Commonwealth Mortg. Corp. of Am., 938 F.2d 591, 594 (5th Cir. 1991) (citing Landry v. Air Line Pilots Ass'n Int'l AFL-CIO, 901 F.2d 404, 435 (5th Cir. 1990))).

Here, Plaintiffs specifically allege that they “have exhausted their administrative remedies . . ..” Compl. at ¶ 42. Failure to exhaust is not apparent from the face of the complaint. Moreover, said Defendants fail to persuade the Court that Plaintiffs have failed to exhaust their administrative remedies.

Said Defendants maintain that 29 V.I.C. § 295^[4]requires Plaintiffs to appeal Newton's refusal to approve electric service to their fourth apartment unit/fifth electric meter to the Board of Land Use Appeals. See generally Mot. (ECF No. 17). However, the plain language of the statute specifies that only an “order, rule, or regulation” of the “Commissioner” of DPNR is appealable under Section 295(a). Here, Plaintiffs allege acts of Defendant Newton, an employee of DPNR, not the Commissioner, involving the fabrication of a purported “rule” of WAPA, not DPNR. No allegation or evidence of an “order,...