Valdivia v. City of Villisca, Civil No. 1:99-CV-30053.

Page 978

460 F.Supp.2d 978

Miguel Romero VALDIVIA and Alleyne Maxine Valdivia, Plaintiffs, v. CITY OF VILLISCA, a municipal corporation, Warren Chapman, individually and in his official capacity as Mayor, Tom McAlpin, Helen Lowe, Janice Phillis, Andy Crussel, individually and in their official capacity as members of the Villisca City Council, Josiah C. Wearin, individually and in his official capacity as attorney for the City of Villisca, Defendants.

Civil No. 1:99-CV-30053.

United States District Court, S.D. Iowa, Western Division.

August 1, 2001.

Eric Kenyatta Parrish, Parrish Kruidenier Moss Dunn Boles Gribble & Cook LLP, Des Moines, IA, for Plaintiffs.

Donna Renae Miller, Grefe & Sidney, Des Moines, IA, John Werner, Werner Law Office PLC, Toledo, IA, for Defendants.

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

WALTERS, United States Chief Magistrate Judge.

This matter is before the Court on defendants' motion for summary judgment, filed May 15, 2001. Plaintiffs Miguel¹ and Alleyne Valdivia filed their complaint on November 1, 1999, bringing ten claims in four counts. Count I included three claims pursuant to 42 U.S.C. § 1983, alleging an unconstitutional taking of real property in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, as well as three claims alleging the same violations with respect to parallel clauses of the Iowa Constitution. Counts II, III and IV alleged state common law claims of abuse of process, intentional infliction of emotional distress and tortious interference with existing or prospective contractual relations. Defendants originally moved to dismiss the complaint, which motion was ruled on by Chief Judge Ronald E. Longstaff. Judge Longstaff granted the motion with respect the federal and state constitutional claims of unconstitutional taking and violation of due process, but denied the motion with respect to the claimed violation of plaintiffs' federal and state constitutional equal protection rights and the state common-law claims. The remaining claims are founded on allegations that defendants discriminatorily enforced a "Dangerous Buildings Ordinance" against plaintiffs because plaintiffs are Hispanic. A building owned by plaintiffs was condemned and demolished as a nuisance.

Federal question jurisdiction is asserted. 28 U.S.C. §§ 1331 and 1343(a)(3). The Court has supplemental jurisdiction of the state law claims. 28 U.S.C. § 1367. The parties consented to proceed before a United States Magistrate Judge and the case was referred to the undersigned for all further proceedings on April 7, 2000. See 28 U.S.C. § 636(c).

I.

Defendants' motion for summary judgment is subject to the following well-established standards. A party is entitled to summary judgment only when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Helm Financial Corp. v. MNVA Railroad, Inc., 212 F.3d 1076, 1080 (8th Cir.2000)(citing Fed. R.Civ.P. 56(c)); accord Bailey v. USPS, 208 F.3d 652, 654 (8th Cir.2000). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A genuine issue of fact is material if it "might affect the outcome of the suit under governing law." Hartnagel, 953 F.2d at 395 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see Rouse v. Benson, 193 F.3d 936, 939 (8th Cir.1999).

In assessing a motion for summary judgment a court must determine whether a fair-minded trier of fact could reasonably find for the nonmoving party based on the evidence presented. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Herring v. Canada Life Assurance Co., 207 F.3d 1026, 1030 (8th Cir.2000). The court must view the facts in the light most favorable to the nonmoving party, and give that party the benefit of all reasonable inferences which can be drawn from them. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348; accord Lambert v. City of Dumas, 187 F.3d 931, 934 (8th Cir.1999); Kopp v. Samaritan Health System, Inc., 13 F.3d 264, 269 (8th Cir. 1993).

II.

The underlying facts in this case are not disputed. Plaintiffs have not filed a response to the Statement of Undisputed Facts filed by defendants in support of the motion and therefore by local rule the undisputed facts put forward by defendants are deemed admitted. LR 56.1(b). Plaintiffs do contend the facts are sufficient to support a finding of different treatment and inference of discriminatory motive in the enforcement of the city ordinance in question.

Plaintiffs Miguel ("Mike") Valdivia and Alleyne ("Maxine") Valdivia are Hispanic Americans residing in Nodaway, Iowa. (Complaint ¶ 6). In August 1993 they entered into a contract to purchase a two-story brick building located on the public square in Villisca, Iowa, a community about eight miles west of Nodaway. (Id. ¶ 17). At the time they purchased the building, they were aware that a crack existed in the mortar of the northwest corner and that they would have to perform repair work in the building. (App. 3, Ex. A, A. Valdivia Depo. at 6-8).

On December 9, 1993 the then Villisca Chief of Police, Allen Smith, spoke with Mike Valdivia about the corner. (App. 7, Ex. B). In 1993 or 1994 plaintiffs constructed temporary bracing of the northwest corner of the building. (App. 26, Ex. C, Trial Tr. at 54). Warren Chapman, then a member of the Villisca City Council, and later mayor, referred plaintiffs to Steve Adams of the Montgomery County Development Corporation. (App.34a, Ex. D(1), Chapman Depo. at 74). Adams assisted plaintiffs in researching possible grants to assist them in refurbishing their building. (App. 50, Ex. G, M. Valdivia Depo. at 25).

On April 10, 1995 Chief of Police Joe Bergen presented to the City Council proposed revised nuisance ordinances that he had requested City Attorney Joe Wearin prepare. The ordinances were "to enable the City to rid the town of abandoned mobile homes and provide stricter regulations regarding unsafe structures." The ordinances included the definition of a "driveway," replacement of the then-existing junk and junk vehicle ordinances, an ordinance creating a civil procedure to enforce the new ordinances with stiffer penalties, and an ordinance to repeal and amend the then-existing nuisance ordinance. The council took no action on the ordinances. (App. 60, Ex. H, 4/10/95 Council Minutes). On May 8, 1995, the council again considered the ordinances, and discussed several buildings that were considered dangerous and possible nuisances. The council came to the consensus that the existing ordinances were sufficient at that time, and new ordinances were not needed. (App. 65-66, Ex. I, 5/8/95 Council Minutes).

On July 10, 1995, a new dangerous buildings ordinance was considered by the City Council, presumably one of those proposed by Chief Bergen previously. Several buildings were discussed, but it was the consensus of the council that the then-existing ordinance was sufficient. (App. 82, Ex. J, 7/10/95 Council Minutes). City Council minutes reflect that at the August 14, 1995 council meeting "[m]uch discussion was held regarding properties in downtown Villisca that the City has received complaints about due to motor vehicles and conditions." Mayor Fred Burgess reported that letters would be sent to the property owners providing them time to correct the conditions and further action would be taken if the conditions were not remedied. (App. 86, K, 8/14/95 Council Minutes).

During this same approximate time period plaintiffs contacted Nancy Stillians for help in obtaining funding to restore their building. Stllians had an interest in preserving local historical buildings. (App.42-43, Ex. E). Stillians arranged for a structural engineer to inspect plaintiffs' building and to determine what measures needed to be taken to repair the northwest corner of the building. (App. 42-43, Ex. E, and App. 46-47, Ex. F).

The engineer, James Ebmeier, P.E., issued a report on September 22, 1995 explaining that "the reason for the review [of the building] was to determine the extent and potential solutions to the settlement of the northwest corner of the structure." Mr. Ebmeier concluded that "the north-west corner of the structure is experiencing distortion settlement." While Mr. Ebmeier noted that temporary shoring was in place to support the corner, he observed "that it appears that there is some movement still being experienced." It was his opinion "that steps be taken in the near future to structurally stabilize the corner of the building." (App.46-47, Ex. F). Ebmeier further reported:

In order to repair the structure it is felt the following steps be taken:

1. Remove brick approximately 7 feet to the south and 19'9" to the east.

2. Reshore the corner utilizing columns farther away from the corner to allow excavation for new column footing.

3. Excavate near the corner to open an area to pour a new column footing approximately at the basement floor level.

4. Pour in new basement walls to slightly above the level of the sidewalk.

5. Raise the upper floor to correct elevation and install a new steel column.

6. Replace brick and building's facial on first floor.

These construction efforts and the extent are due to several reasons:

1. The column footing needs to be placed at the basement floor due to the window in the basement wall, uncertainty of capability of the basement wall, and type of fill used when the stairs to the basement were filled in.

2. Removal of the brick is due to...