Smoke v. Hooper

JUDY SMOKE, as sole heir at law of Danny Green, deceased PLAINTIFF v. ROGER HOOPER, individually and in his official capacityas County Judge of Van Buren County, Arkansas,and VAN BUREN COUNTY, ARKANSAS DEFENDANTS

Case No. 4:16-cv-00766 KGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

September 19, 2018

OPINION AND ORDER

Before the Court is a motion for summary judgment filed by defendants County Judge Roger Hooper and Van Buren County, Arkansas (Dkt. No. 7). Plaintiff Judy Smoke has responded (Dkt. No. 13). Defendants filed a reply (Dkt. No. 16). Ms. Smoke originally brought this case in Van Buren County, Arkansas, Circuit Court, and defendants removed the case to this Court (Dkt. No. 1).

Judge Hooper and the County move for summary judgment on Ms. Smoke's claim; she alleges an unlawful taking pursuant to an unconstitutional, unwritten county policy that purportedly deprived her of the right to due process under the Constitution of the United States. Ms. Smoke also asserts in her complaint several state law claims including intentional trespass and an alleged violation of her civil rights under the Arkansas Constitution. As an initial matter, Judge Hooper and the County challenge Ms. Smoke's standing to bring this claim. Even if Ms. Smoke has standing, Judge Hooper and the County argue that Ms. Smoke's federal claims should be dismissed for a lack of subject matter jurisdiction. They contend that the county government has eminent domain powers and that Ms. Smoke must seek just compensation in the appropriate court first for the actions about which she complains. In addition, Judge Hooper and the County contend that Judge Hooper in his individual capacity is entitled to qualified immunity and that Judge Hooper in his individual and official capacities, as well as the county government, are entitled to tort immunity. Judge Hooper and the County also argue that, because subject matter jurisdiction is lacking over Ms. Smoke's federal claim, this Court should decline to exercise jurisdiction over her state law claims.

Ms. Smoke makes several arguments in response to Judge Hooper and the County's motion for summary judgment. First, Ms. Smoke contends that Judge Hooper implemented an official policy or custom that was the moving force for the unconstitutional taking of her property. Ms. Smoke maintains that the policy of expanding "existing roadways by cutting trees, vegetation, and fencing for a width of up to 60 feet, even though the County has never taken the 60-foot roadway in by ordinance, eminent domain, deed conveyance, or otherwise" created the constitutional violation and satisfies the requirement for subject matter jurisdiction (Dkt. No. 13, at 1, ¶ 2). Ms. Smoke also argues that the trespass by county maintenance employees, at the direction of Judge Hooper, was intentional, thereby precluding Judge Hooper and the County from relying on any claim of immunity.

For the following reasons, the Court determines it lacks subject matter jurisdiction over Ms. Smoke's federal claims and declines to exercise jurisdiction over her state law claims. The Court immediately remands this matter to the Circuit Court of Van Buren County, Arkansas.

I. Factual Background

Unless otherwise noted by citation, the following facts are taken from Judge Hooper and the County's statement of indisputable material facts (Dkt. No. 9) and Ms. Smoke's response to defendants' statement of indisputable material facts (Dkt. No. 14).

A. Ownership Of Property

Ms. Smoke's parents lived on certain property in northern Van Buren County, Arkansas, but her parents passed away on March 16, 2015, and November 6, 2015. North Forty Road runs through the property owned by Ms. Smoke's parents.

B. Status Of The Road

The parties dispute the status of North Forty Road. Judge Hooper and the County characterize the road as a "public road." (Dkt. No. 9, at 1, ¶ 2). Ms. Smoke denies that North Forty Road is a "public road," instead claiming that the road has never been dedicated by the County, has never been the subject of a condemnation proceeding, has never been declared by any judicial proceeding nor even taken into the county road system by ordinance (Dkt. No. 14, at 1-2, ¶ 2). In his deposition, Judge Hooper admitted that the County had no intention to widen North Forty Road (Dkt. No. 9-6, Hooper Dep., at 17, 21).¹ The County intended, absent this lawsuit, to continue to maintain North Forty Road (Id., at 21). Judge Hooper explained that the County "generally tr[ies] to cut the brush, not widening the road, cut the brush to keep vehicles from getting their [exteriors] scratched and so forth as part of [the County's] routine maintenance. Just like grading, it's part of [the County's] routine maintenance." (Id., at 24). At the time of his deposition, Judge Hooper testified that the County was continuing to maintain North Forty Road (Id., at 45).

Judge Hooper testified that the County's position is that North Forty Road is a "public road" and that the County "got it on some warranty deeds and so forth as an easement," including the 1981 deed from Ms. Smoke's parents (Id., at 17-18). Based on the record before the Court,the deeds referred to by Judge Hooper appear to be from private grantors to private parties and reference the existing road as a public road and utility easement (Id., at 20; Dkt. No. 9-6, Ex. 2, at 65-66 (describing road as "easement road" and "public road and utility easement," respectively)). Record evidence is that the County has always maintained the road (Id., at 21). Judge Hooper admitted during his deposition that he was not aware of the legal description of the road but that it was furnished by the county surveyor (Id., at 21). He testified that there are culverts on other parts of North Forty Road but not at the property at issue because it is relatively flat (Id., at 28).

Judge Hooper admitted that he is not aware of a county ordinance that took North Forty Road into the county road system (Id., at 18). There is some record evidence that a sign stated "North Forty Drive Public Road" and one that said "private property," but the record is unclear as to how long those signs were up in the area (Id., at 29-32).

C. Work Performed Along The Road

In early 2016, County workers performed various maintenance related tasks along North Forty Road including mowing grass, cutting trees, and chipping brush (Dkt. No. 9-5, Miles Dep., at 7). Ms. Smoke contends that the County has a general, unwritten policy of maintaining "existing roadways by cutting trees, vegetation, and fencing for a width of up to 60 feet, even though the County has never taken the 60 foot roadway in by ordinance, eminent domain, deed conveyance, or otherwise." (Dkt. No. 13, at 1, ¶ 2; see Dkt. No. 9-6, Hooper Dep., at 26-27 (testifying that normally the county tries "to stay within 30 foot from the center" on county roads when cutting trees or removing brush)). Judge Hooper does not concede this was a policy nor does he concede that this is what Ms. Smoke contends the policy was for purposes of her lawsuit (Dkt. No. 16, at 2 n.1). Judge Hooper was not present on the date that County employees worked on North Forty Road in early 2016.

Ms. Smoke never filed a claim in County Court in Van Buren County, Arkansas, related to the allegations in this lawsuit.

II. Legal Standard

Summary judgment is proper if the evidence, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact in dispute and that the defendant is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A factual dispute is genuine if the evidence could cause a reasonable jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008). "The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under prevailing law." Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989). However, parties opposing a summary judgment motion may not rest merely upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party to establish that there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 2008). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

III. Federal Claim

Ms. Smoke's federal claim is based on Judge Hooper and the County's allegedly unlawful taking that purportedly deprived Ms. Smoke of the right to due process under the Constitution of the United States.

The Court construes Ms. Smoke's federal claim as arising under 42 U.S.C. § 1983. "The plain language of 42 U.S.C. § 1983 establishes that a plaintiff must satisfy two jurisdictional requisites to state an actionable claim. First, [s]he must allege the violation of a right secured by the Constitution and laws of the United States. Because most rights secured by the Constitution are protected only against infringement by governments, this requirement compels an inquiry into the presence of state action. Second, a § 1983 plaintiff must show that the alleged deprivation was caused by a person acting under color of law." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 946 (1982) (internal citation and quotations omitted). Here, Ms. Smoke alleges that Judge Hooper and the County, through its unwritten policies and the acts of its employees, damaged, destroyed, or took certain tress and fencing from property she claims to have owned while routine maintenance was performed on an adjacent road. She maintains this conduct by Judge...