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Souter v. Warren County

United States District Court, Western District of Virginia, Harrisonburg Division

February 18, 2014

JULIA E. SOUTER, Plaintiff,
v.
WARREN COUNTY, VA., et. al., Defendants

REPORT AND RECOMENDATION

JAMES G. WELSH U.S. MAGISTRATE JUDGE

Julia Souder, appearing pro se. instituted this cause of action against Warren County, its Board of Supervisors, its county attorney (Blaire Mitchell), its assistant county attorney (Dan Whitten), its zoning administrator (Eric Moore), and its county executive (Douglas Stanley). In her "[Amended] Complaint/Motion for Judgment," Ms. Souter challenges the constitutionality of provisions in the Warren County ("County") zoning ordinance, which relate to the "Accumulation of Refuse" and to "Enforcement. In addition, she alleges that as enforced she was denied due process (docket #4, pp 1-3, and #7, p 1). In response the defendants have moved to dismiss pursuant to Rule 12(b)(6) and filed a supporting memorandum of points and authorities along with numerous attachments outlining the plaintiffs longstanding property-related disputes with the County.(Docket # 9 and 10)

A Roseboro Notice, with a deadline set for August 23, 2013, was sent to the plaintiff I (docket #14), and this matter was then referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) for proposed findings of fact and recommended disposition (docket # 15).

The plaintiff subsequently filed "Objections" to the defendants' motion (docket #29). In this somewhat rambling response, Ms. Souter argues that dismissal of her complaint is inappropriate for three reasons: because the state court had jailed her "with the acquiescence of the Defense;" because the state court had imposed an appeal bond requirement that effectively "precluded" her ability to seek any direct appellate review; and because the defendants had failed to "supervise the behavior and actions" of their subordinates.

In reply the defendants point-out that the plaintiffs imprisonment is a function of her own decision-making, not that of any defendant; similarly, they point-out that it is the plaintiffs own inaction, not any action by a defendant that is keeping her imprisoned. (Docket #30; #30-1, p. l)They note that the state court's August 2013 order holding Ms. Souter in civil contempt and imposing a six-month jail sentence (docket #30-2), contains inter alia an express finding that Ms. Souter has persistently continued to violate its earlier November 2010 injunction (docket #10-6, pp 1-5), which ordered her to maintain her property in compliance with the County's zoning code. As additional support for their motion, the defendants point to the state court's detailed outline of the nature and extent of Ms. Souter's violations, the clean-up that would be required as a condition precedent to her early release, and the state court's authorization for a County cleanup of the property at the plaintiffs sole expense in the event on her inaction.

I. Summary and Recommended Disposition

After a careful and mature consideration of the entire record and after having heard the views of the parties, including specifically the fact Ms. Souter's pleadings do not support a plausible inference of any right to relief as to any of the defendants, and for the reasons that follow, it is RECOMMENDED that summary judgment be GRANTED in favor of all defendants, and that this case be DISMISSED WITH PREJUDICE WITHOUT LEAVE FURTHER TO AMEND and that it be STRICKEN from the court's active docket.

II. Standard of Review

A. Rule 12(b)(6)

To survive a Federal Rule of Civil Procedure 12(b)(6) motion, a complaint must allege facts that, when accepted as true, "state a claim to relief that is plausible on its face."Ashcroft v. Iqbal, 556 U.S. 662, 678(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks omitted). Further defined, a claim is plausible on its face when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.".W.(citing Twombly, 550 U.S. at 556). Legal conclusions or conclusory statements do not suffice and are not entitled to the assumption of truth. Id. (citing Twombly, 550 U.S. at 555). Thus, it is the court's obligation to "determine whether it is plausible that the factual allegations in the complaint are enough to raise a right to relief above the speculative level."Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009) (quoting Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009)) (internal quotation marks omitted).

Therefore, in making its determination whether to dismiss, the court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268(1994); Lambeth v. Bd. Of Comm'rs of Davidson Cnty., 407 F.3d268 (4th Cir. 2005).

In resolving a Rule 12(b)(6) motion, the court "is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss," Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450 (4th Cir. 2007); however, the court may consider documents integral to the complaint or specifically referenced by it without converting the Rule 12(b)(6) motion in to one for summary judgment. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322(2007).

In addition, pursuant to Rule 12(d),the court has "complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it." 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004, 2011 Supp.); see Kensington Vol. Fire Dep't, Inc. v. Montgomery Cnty., 788 F.Supp. 2d 431, 436-37 (DMd. 2011), affd, 684 F.3d 462 (4th Cir. 2012). And if the court considers such material, "the motion must be treated as one for summary judgment under Rule 56;" in which case "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Rule 12(d).

B. Special Consideration for Pro Se Litigants

Pro se pleadings are liberally construed and held to a less stringent standard than pleadings drafted by lawyers, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106(1976)); accord Brown v. N.C. Dep't of Corr., 612 F.3d 720, 724 (4th Cir. 2010). Pro se complaints are entitled to special care to determine whether any possible set of facts would entitle the plaintiff to relief. Hughes v. Rowe, 449 U.S. 5, 9-10(1980). Nevertheless, pro se complaints must be dismissed, if they do not allege "a plausible claim for relief." Forquer v. Schlee, 2012 U.S. Dist. LEXIS 172330, *7 (DMd. Dec. 4, 2012) (citations and internal quotation marks omitted). Thus, "[w]hile pro se complaints may represent the work of an untutored hand requiring special judicial solicitude, a district court is not required to recognize obscure or extravagant claims defying the most concerted efforts to unravel them." Weller v. Dep't of Soc. Servs .for the City of Baltimore, 901 F.2d387, 391 (4th Cir. 1990) (citation omitted)

III. Plaintiffs Claim

In her amended complaint (docket #4), Ms. Souter seeks a declaratory judgment that section 180-19 of the Warren County (Virginia) zoning ordinance dealing with the "[accumulation of refuse" and section 180-60 of the same ordinance dealing with "[enforcement" are unconstitutional. To support this contention, she sets forth both provisions verbatim and points to what she contends are the absence of necessary "definitions defined in the [ordinance]," the absence of "any minimums for enforcement," the absence of any defined cleanup "procedures" and the absence of any "rules governing" cleanup documentation. (Docket #4, pp 2-3) The plaintiff also claims that the phrase "which might endanger the Public Safety" in the ordinance's enforcement section is unconstitutionally vague and fails to define what constitutes "reasonable" notice. (Id. at 3)

Attached to the plaintiffs original complaint, and incorporated by reference in her amended complaint is a glut of letters, notices, pleadings and assorted submissions documenting both Warren County's longstanding (at least since 2010) efforts to get the plaintiff to cleanup her property and her vociferous complaints of persistent violations of her privacy, trespass and other personal rights.

In the style of plaintiff s amended complaint, in addition to identifying Warren County and its "Board of Supervisors" as defendants, she also names five county officials as defendants. However, no cognizable wrongdoing is asserted against any one or more of these individuals; therefore, their designation as defendants is deemed to be in their respective official capacities.

Defendants' Exhibits[1]

As previously noted, underpinning the case now before the court is a five-year struggle by Warren County to effect a clean-up of the plaintiffs property. This effort is documented by the defendants in exquisite detail in the form attachments submitted in support of their motion to dismiss. Inter alia, these include the county attorney's affidavit (docket #30-1), a surfeit of state court records (docket #10-3, #10-6, #10-7, #10-8, #10-12 and #30-2), and numerous photographic exhibits (docket #10-4, #10-5, #10-9, #10-10 and 10-11) illustrating the condition of Ms. Souter's property at various times. Also submitted by the defendants in support of their motion are charts illustrating the County's multi-year, multi-venue litigation history with Ms. Souter (docket # 10-1, #10-2 and #10-3 p 1), a history which includes two previous unsuccessful efforts on the plaintiffs part to seek relief through the federal court {Souter v. County of Warren 5:10cv00122-SGW, [2] and Souter v, Comm. of Virginia, 5:12cv00121-MFU).[3]

Totaling more than 250 pages, these exhibits show in detail that in early 2008 Warren County obtained an injunction, later affirmed by the Virginia Court of Appeals, (docket #10-1 p. 4) directing Ms. Souter to clear her property located at 471 Apple Jack Circle, Linden, Virginia ("the property"), and imposing a suspended six month jail sentence (Id. at p 3) By November of the same year, the property was again junked; the suspended sentence was revoked, and she was jailed (Id. at p 4). This incarceration precipitated her first unsuccessful effort to invoke the federal court's jurisdiction. See Souter v. Cnty. of Warren, 5:10cv00122-SGW, 2010 U.S. Dist. LEXIS 125893 (WDVa. Nov. 30, 2010).

In 2010, the saga of Ms. Souder's trashy property was renewed. In May and July, Ms. Souter received Notice of Violation letters informing her that she was not in compliance with the zoning laws (docket #10-4, pp. 6-10), and a couple of months later her adherence to waste management regulations was also questioned (docket # 10-4, pp. 6-8). In July the county took the zoning law non-compliance issue to court, requesting injunctive relief on the basis of Ms. Souder's continuing recalcitrance (docket # 3, pp. 1-5); however, by seeking multiple continuances and filing a plethora of motions (docket # 10-6, pp. 25-27, 27-28, 30, 32-38, 39-40, 41-42) this issue was not decided until entry of an Order of Injunction in November 2010 (docket # 10-6, pp. 6-10). Despite her multiple efforts to raise questions about validity of the injunction order, it has remained in full force and effect (docket #10-6, pp 6-7, 8-13, 23).

Consequently, in February 2011 when a clean-up of the property had not progressed, the state court authorized the County to clean it (docket #10-6, pp. 24-25). Once again Ms. Souder unsuccessfully objected (Id., pp. 31-34 (part two), 35-36); the property was cleared; the debris was sold at public auction in June 2011 (Id. p 37), ...


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