United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge
the court is Defendants' Motion for Summary Judgment
(Doc. 17), filed March 20, 2017. After considering the
motion, briefs, Defendants' evidence, and applicable law,
the court grants Defendants' Motion for
Summary Judgment (Doc. 17) and dismisses with
prejudice this action against Defendants Glen D.
McGee, Robert De Los Santos, and Dallas County for alleged
violations of due process brought under 42 U.S.C. §
Factual and Procedural Background
December 14, 2015, Plaintiff Joel Potasznik
(“Plaintiff” or “Potasznik”) brought
this action against named Defendants Glen D. McGee
(“McGee”) and Robert De Los Santos (“De Los
Santos”) (collectively, “Defendants”) under
42 U.S.C. § 1983 for alleged constitutional due process
violations. De Los Santos was the Fire Marshal for Dallas
County, Texas, at all times material to this action. McGee
was employed in the Environmental Health Division of Dallas
County Health and Human Services in August and September 2015
at the time in question.
originally filed the action in state court, but the case was
removed by Defendants to federal court based on federal
question jurisdiction on January 19, 2016. Potasznik's
due process claims pertain to his contention that he was
denied access to his property without due process of law
under the Fourteenth Amendment to the United States
Constitution. The property at issue is located at 1700-1718
Dowdy Ferry Road, Hutchins, Dallas County, Texas. A portion
of the property is leased to allow dumping of “clean
fill” from construction sites. Pl.'s Compl. 2. In
his Original Petition (“Complaint”), Potasznik
asserts that he was first contacted on July 26, 2015, by
“Defendant Dallas County, acting through Officer Glen
D. McGee of the Environmental Crimes Division of [the County]
District Attorney's office.” Id.
Potasznik asserts that, on August 13, 2015, he subsequently
learned from one of his tenants that McGee had visited the
property with two fire marshals, who provided the tenant with
an inspection report, which notified that permits were needed
to continue filling and grading the site, and that the
property would be reinspected on August 23, 2015.
asserts that he submitted the appropriate application on
August 15, 2015, but before his application was processed,
“four Dallas County Constable vehicles, along with the
Environmental Crimes Division of [the County] District
Attorney's office, and the Fire Marshal, set up outside
the gate of the property” on August 19, 2015, and
allowed trucks driven by a tenant to enter the property but
ticketed the trucks for illegal dumping as they exited.
Potasznik asserts that, as a result, he lost the tenant who
was ticketed or fined and was forced to close his business
that same day. Potasznik asserts that, on September 4, 2015,
three other tenants were told by McGee that they had to
vacate the property that day for lack of a permit, and McGee
provided one of the tenants with a copy of a search warrant
that appears to pertain to a vacant portion of the property.
Potasznik asserts that the property was
“padlocked” on September 4, 2015, and he has not
been able to enter the property since that time. Id.
Potasznik contends that, on September 6, 2015, the County
Fire Marshall placed “no trespassing” signs on
the gates to the property that state the property is in the
custody of the County Fire Marshall and forbid any person
from entering the property.
maintains that he was deprived of his property rights without
due process of law as a result of the actions of Dallas
County that essentially shut down his business. Potasznik
contends that McGee and Santos “were acting under cover
of state authority when they seized [his] property without
charging [him] with a statutory violation or a crime, ”
and “[t]heir actions were in conformity with
well-established customs and usages that has the force of law
within the state.” Id. at 3. Potasznik further
asserts that the search warrant was not signed or notarized,
and it is unclear who authorized the warrant because the
magistrate judge's signature is illegible. In their
Answers to Plaintiff's Complaint, both Defendants assert
the defense of qualified immunity.
March 20, 2017, Defendants filed a joint Motion for Summary
Judgment, contending that they are entitled to judgment
because Plaintiff's claim for procedural due process
under the Fourteenth Amendment fails as a matter of law.
Defendants contend that, while Plaintiff may have a property
interest in the property, there is no right under state law
that entitles him to use property in an unincorporated area
for business without the requisite permits or without
complying with fire codes adopted by the governing body and
state laws that protect against environmental hazards.
Defendants assert that Plaintiff does not dispute that he
lacked the requisite permits or contend that the property
complied with applicable fire codes when it was padlocked.
Defendants contend there is no evidence to support the
conclusion that Defendants' conduct violated any property
interests Plaintiff has under state law or his right to due
[T]here are no allegations that the Defendants violated any
Due Process rights to Plaintiff by closing access to his
property. He was given notice by the inspection report
admittedly given to his property manager on August 14, 2015
and notice that there would a re-inspection to determine if
the hazards noted on the report had been corrected. There is
no factual allegation that Defendants failed to provide
Plaintiff any other consideration before re-visiting the
property and determining that the hazards noted on August 14,
2015 had not been fixed.
Defs.' Mot. 6 (Doc. 18). Defendants contend that they are
entitled to qualified immunity because Plaintiff's
pleadings are insufficient to establish that their conduct,
as alleged in the Complaint, was clearly contrary to
well-established law. Defendants assert that Plaintiff does not
allege that any conduct by McGee was directed toward him, and
he does not have standing to assert claims based on
complaints or interests of his tenants who were ticketed or
told to vacate the property. Defendants contend that the only
allegation by Plaintiff regarding the padlocking of the
property and notice of no entry is attributed to the Fire
Marshal, who is not a party to this lawsuit.
response to Defendants' summary judgment motion,
Potasznik clarifies that he is suing Defendants in their
official capacity, not their individual capacity, so
Defendants' contentions regarding a heightened pleading
standard and qualified immunity are inapplicable. Potasznik
asserts that, although the caption of his Complaint does not
include Dallas County as a defendant, and the Complaint does
not expressly state that Defendants are being sued in their
official capacities, instead of their individual capacities,
it is clear from the allegations in the body of his Complaint
and the “course of the proceedings” that
Defendants are being sued in their official capacities.
Pl.'s Resp. 3 (Doc. 24) (citing Colvin v.
McDougal, 62 F.3d 1316, 1318 (11th Cir. 1995)).
contends that Defendants acknowledge that he has a property
interest in the property and what they are actually arguing
is that he does not have the right to conduct business in
violation of environmental codes and without applicable
permits. Potasznik contends that due process “requires
a deprivation of life, liberty or property be proceeded by
notice and opportunity for a hearing appropriate to the
nature of the case, ” and the question in this case is
whether he had “the opportunity to remedy any alleged
violations before his property rights were deprived.”
Pl.'s Resp. 2 (citing Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532. 541 (1985)). Potasznik asserts
that, while Defendants contend that the property was closed
for environmental violations and lack of permits,
Defendants' evidence only establishes environmental
violations, not a lack of permits, and there is no evidence
Defendants were tasked with enforcing a permit requirement.
Potasznik contends that Defendants' arguments are,
therefore, circular, and his evidence demonstrates that he
attempted to remedy the alleged violations but was
“stonewalled by the County.” Id. at 2.
The remainder of Plaintiff's response focuses on and
reasserts the allegations in his Complaint, which the court
has summarized above.
their reply, Defendants contend that “the County is not
and never had been a named party; it has never been served
with process, let alone by personal service on the Dallas
County Judge, as required, ” and Plaintiff's
pleadings are insufficient to put them on notice that they
are being sued in their official, rather than individual,
capacities. Defs.' Reply 3. Defendants assert that, even
if they are being sued in their official capacities,
Plaintiff's due process claim still fails because
Plaintiff refers to evidence and an affidavit, but none was
submitted in support of his summary judgment response, and
there are no allegations or evidence to support a due process
claim based on municipal liability against Defendants in
their official capacity. Specifically, Defendants contend
that there are no allegations or evidence: (1) of who acted
as the Dallas County's “policymaker”with
regard to any alleged violation of due process; (2) of an
official policy or custom; (3) that the official policy or
custom caused the alleged due process violation; or (4) that
the official policy or custom was promulgated with deliberate
indifference to know or obvious consequences that
constitutional due process violations would result.
Defendants further assert that, in Spiller v. City of
Texas, City Police Department, 130 F.3d 162,
167 (5th Cir. 1997), the Fifth Circuit held that an
allegation that “[an officer] was acting in compliance
with the municipalities' custom, practice or
procedures” was conclusory and insufficient to plead
municipal liability. Defs.' Reply 4. Defendants contend
that, like the allegation in Spiller,
Plaintiff's conclusory allegation that McGee and Santos
“were acting under cover of state authority when they
seized [his] property without charging . . . a statutory
violations or a crime, ” and “[t]heir actions
were in conformity with well-established customs and usages
that have the force of law within the state” is
insufficient to establish a genuine dispute of material fact
as to Dallas County's liability and, instead shows that
any policy or custom was consistent with state law.
Id. at 3, 5.
continue to maintain that Potasznik has not established a
violation of due process and assert that they do not
understand why Potasznik believes that the search warrant ...