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Potasznik v. McGee

United States District Court, N.D. Texas, Dallas Division

March 27, 2018

JOEL POTASZNIK, Plaintiff,
v.
GLEN D. MCGEE; ROBERT DE LOS SANTOS; and DALLAS COUNTY, [1] Defendants.

          MEMORANDUM OPINION AND ORDER

          Sam A. Lindsay United States District Judge

         Before 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. § 1983.

         I. Factual and Procedural Background

         On 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.

         Potasznik 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.”[2] 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.

         Potasznik 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.

         Potasznik 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.

         On 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 process:

[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.[3] 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.

         In 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)).

         Potasznik 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.

         In 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.

         Defendants 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 ...


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