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Strozier v. The City of Lanett

United States District Court, M.D. Alabama, Eastern Division

March 14, 2019

THE CITY OF LANETT; KYLE MCCOY, individually and in his official capacity as Mayor of the City of Lanett; JASON ABERNATHY, individually and in his official capacity as Code Enforcement Officer of the City of Lanett, Defendants.



         Plaintiff alleges that Defendants - The City of Lanett; its mayor, Kyle McCoy; and its code enforcement officer, Jason Abernathy - demolished the structure on his property without providing him constitutionally adequate notice in violation of the Due Process Clause of the Fourteenth Amendment. Before the court are Defendants' motion for summary judgment (Doc. # 20), and Plaintiff's response in opposition (Doc. # 22). Based on the lack of factual development on the pivotal issue of constitutional notice, Defendants have not met their burden of demonstrating that there is no genuine dispute of material fact and that they are entitled to judgment as a matter of law. Accordingly, Defendants' motion for summary judgment is due to be denied.


         The court has subject-matter jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. § 1331. Personal jurisdiction and venue are uncontested.


         To succeed on summary judgment, the movant must demonstrate “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The court must view the evidence and the inferences from that evidence in the light most favorable to the nonmovant. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

         The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying the portions of the record illustrating the absence of a genuine dispute of material fact. Id. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).


         The sole issue is whether Defendants deprived Plaintiff of his procedural due process rights under the Fourteenth Amendment by denying him notice and the opportunity to be heard before demolishing a structure on property he owned in the City of Lanett, Alabama. The summary judgment facts on the issue of notice are sparse. As a result, the background that follows reads more like a recitation of what facts are not in the record, rather than what facts are in the record.

         Plaintiff has owned property located at 614 South Sixth Avenue, in Lanett, Alabama, since 2005. (Doc. # 22-1, at 2 (Pl.'s Aff.).) Until the City of Lanett demolished it in January 2017, a home was on the property. It does not appear that Plaintiff ever lived in the home, at least not permanently, because he identifies his legal residences during this time period as being in Georgia. There is no evidence - one way or the other - whether anyone else ever lived in the home.

         When Plaintiff purchased the property, the structure on the premises needed repairs. In 2006, Plaintiff obtained a building permit from the City of Lanett to make upgrades and took out a $40, 000 loan for this purpose.[1] (Doc. # 20-1, at 2; Doc. # 22-1, at 2; stipulation a.) The summary judgment record leaves a gap in time of nearly a decade and is silent as to the type or extent of repairs Plaintiff made or sought to make to the residence after taking out the loan.[2] Fast forward from 2006 to 2015, and even assuming that Plaintiff made repairs during that time period, they were not enough to sway the City of Lanett's determination that the structure on Plaintiff's property was unsafe and a public nuisance. The City thus commenced steps to provide notice to Plaintiff to either remedy the unsafe conditions or demolish the structure or risk that the City would demolish it. Section 11-40-31 of the Alabama Code sets out the notice procedures the City must follow. Although notice requirements in a state statute are not necessarily synonymous with those of due process, setting out § 11-40-31's requirements here provides context for the City's actions, as well as for some of the parties' arguments. That statute provides:

The term “appropriate municipal official” as used in this article shall mean any municipal building official or deputy and any other municipal official or municipal employee designated by the mayor or other chief executive officer of the municipality as the person to exercise the authority and perform the duties delegated by this article. Whenever the appropriate municipal official of the municipality finds that any building, structure, part of building or structure, party wall, or foundation situated in the municipality is unsafe to the extent that it is a public nuisance, the official shall give the person or persons, firm, association, or corporation last assessing the property for state taxes and all mortgagees of record, by certified or registered mail to the address on file in the tax collector's or revenue commissioner's office, notice to remedy the unsafe or dangerous condition of the building or structure, or to demolish the same, within a reasonable time set out in the notice, which time shall not be less than 30 days or suffer the building or structure to be demolished by the municipality and the cost thereof assessed against the property. The mailing of the certified or registered mail notice, properly addressed and postage prepaid, shall constitute notice as required herein. Notice of the order, or a copy thereof, shall, within three days of the date of mailing, also be posted at or within three feet of an entrance to the building or structure. If there is no entrance, the notice may be posted at any location on the building or structure.

Ala. Code § 11-40-31.

         In a letter dated October 14, 2015, Code Enforcement Officer Abernathy notified Plaintiff that the City of Lanett had found that the “dilapidated/burned structure” on his property was “unsafe and a public nuisance.” (Doc. # 20-2, at 2.) The letter warned that, within 45 days, Plaintiff had to repair or demolish the structure or, alternatively, within 30 days, Plaintiff had to submit a “work plan to accomplish” the repair or demolition.[3] (Doc. # 20-2, at 2.) The letter was sent by certified mail, addressed to Plaintiff at the Decatur, Georgia address on file in the revenue commissioner's office. Plaintiff attests, though, that, in 2014, he had moved from Decatur to Midland, Georgia, and that he “did not receive” the letter by certified mail “or any other means.”[4] (Doc. # 22-1, at 2-3.) Missing in the summary judgment record is a copy of the return-receipt card. However, the parties subsequently stipulated that the letter was returned to Defendants as “undeliverable.”[5] (Parties' Stipulation d.)

         Also, on October 14, 2015, Abernathy attests that a “Demolition Notice” was affixed to the structure on Plaintiff's property. (Doc. # 20-1, at 3.) But the summary judgment record does not reveal what the notice said. Defendants have submitted a blowup of only a small portion of the notice that shows a faded, handwritten notation of “10-14-15.” (Doc. # 20-4, at 2.) The blowup captures only a few lines of incomplete text with cut-off words. From the limited words that can be made out, the Demolition Notice does not appear to be a copy of the October 14, 2015 letter that was mailed to Plaintiff.[6] The record also does not contain other potentially salient facts on the issue of the posted notice. There is no evidence as to the length of time the notice remained posted on the property. There also is no evidence whether Plaintiff saw the Demolition Notice or whether anyone else saw the notice and conveyed its contents to Plaintiff. Plaintiff has not been deposed, and both Defendants' evidence and Plaintiff's affidavit are silent on these points. Although at the January 30, 2019 status conference, counsel for Plaintiff indicated that Plaintiff never saw the posted notice, there is no evidence to that effect.

         Two months after the posting of notice on Plaintiff's property, Defendant Abernathy signed a second letter, dated December 28, 2015, again addressed to Plaintiff at the Decatur, Georgia address. The letter informed Plaintiff that the City previously had “contacted” him concerning the dilapidated property, that “[t]he time allowed for [Plaintiff] to contact [Abernathy] about this matter or rehabilitate this property has expired, ” and this notice was Plaintiff's “final notice that the property is condemned and must be abated.” (Doc. # 20-5, at 2.) This letter also was returned as “undeliverable.” (Parties' Stipulation d.) The return-receipt card is not signed, and the certified mail envelope contains a forwarding address in Lithonia, Georgia, and a notation to “return to sender.” (Doc. # 22-1, at 6-8 (copy of the unsigned return-receipt card marked “return to sender”).) Additionally, Plaintiff attests that he did not receive notice of the December 2015 letter by “any other means.” (Doc. # 22-1, at 3, ¶ 5.) Hence, the few facts that are clear are that Plaintiff did not receive the certified-mail letters, dated October 14, 2015, and December 28, 2015, and, that, based on the return-receipt cards, Defendants were on notice of the failed delivery attempts.

         On January 4, 2016, at a regular meeting of the city council, a motion to adopt a resolution declaring Plaintiff's property a public nuisance was “unanimously carried.” (Doc. # 22-1, at 10 (Ex. F.).) The resolution declared that Plaintiff had not responded to the code enforcement officer's notice of the City's finding that his property was a public nuisance, and it authorized the City's code enforcement officer to “abate the nuisance by demolishing and removing the structure from the property and cleaning same.” (Doc. # 22-1, at 11 (Ex. F).) But there is only an unsigned copy of the resolution in the record, and the parties stipulate that Defendants demolished the structure on Plaintiff's property “prior to the city council approving the ...

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