United States District Court, W.D. Virginia, Lynchburg Division
K. MOON, UNITED STATES DISTRICT JUDGE
case is before the Court on Defendants' motion to dismiss
or, alternatively, for summary judgment. (Dkt. 37).
Plaintiff, an incarcerated individual proceeding pro
se, initiated this case seeking a temporary restraining
order (“TRO”) forbidding the consummation of the
alleged tax sale of his home. (Dkts. 1, 2). Construing the
Complaint liberally, the Court understood it to allege that
Defendants were selling Plaintiff's home and personal
effects without notice, in violation of the Due Process
Clause. Accordingly, on May 3, 2017, the Court granted an
ex parte TRO. (Dkt. 15). Defendants entered an
appearance the same day, and subsequently expressed a
“willing[ness] to agree not to close on the sale of the
subject real estate pending negotiations” with
Plaintiff. (Dkt. 18). The Court accordingly extended their
time to respond to the Complaint while also extending the TRO
until further ordered. (Dkt. 21).
negotiations apparently failed, giving rise to
Defendants' instant motion. The Court analyzes the motion
as one seeking summary judgment, as Defendants recognize they
present matters outside the pleadings. (Dkt. 38 at 1). The
motion is now ripe after the Court issued a Roseboro
notice to Plaintiff, who submitted a response. (Dkts. 39,
judgment is proper “if the movant shows 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). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the
evidence of a genuine issue of material fact “is merely
colorable or is not significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at 250. In
considering a motion for summary judgment, a court must view
the record as a whole and draw all reasonable inferences in
the light most favorable to the nonmoving party. See,
e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.
undisputed facts are established by the declaration of
Defendant James W. Elliot and the exhibits attached thereto.
(Dkt. 38-1). Elliot is an attorney who represents
Defendant City of Lynchburg (“City”) in
delinquent real estate tax matters and tax sale litigation.
After the City gave Elliot notice of delinquent taxes on the
property at issue (1221 Garfield Avenue, Lynchburg, Virginia
24501), Elliot mailed notices of delinquency to the owners,
Plaintiff and his wife, Nakia L. Littlejohn. (Dkt. 38-1 at
ECF 4). The Littlejohns' address, as reflected in the
City's records, was listed as the same as the street
address for the subject property, and Elliot relied on that
listing when sending the notices. (Id. at ECF 5).
The notices demanded payment of the outstanding taxes
“no later than June 30, 2016 in order to avoid legal
action.” (Id. at ECF 4).
then waited the statutorily prescribed period and, after
receiving no reply from the Littlejohns, filed a civil
complaint in the Lynchburg City Circuit Court on December 28,
2016 against the Littlejohns, seeking tax sale of the
property. (Dkt. 38-1 at ECF 6-16). The United States of
America appeared on January 31, 2017 to file a notice of
disclaimer of its interest in the property. (Id. at
17-18). That same day, the City's Department of Billing
and Collections informed Elliot that the outstanding taxes on
the property were $6, 395.21. (Id. at 19). The
Littlejohns were served by posting at the subject
property's address, but they did not respond to the
lawsuit. See Va. Code Ann. § 8.01-296(2)(b);
dkt. 38-1 at ECF 2 ¶¶ 6, 8.
on February 7, 2017, Elliot obtained a default judgment in
the City's favor from the Lynchburg City Circuit Court.
(Dkt. 38-1 at ECF 2, 20-21). In accordance with the judgment,
Elliot advertised the property for sale at a public auction,
which took place on March 20, 2017. (Id. at 2).
However, before obtaining approval of the sale from the
Lynchburg City Circuit Court and delivering the deed, Elliot
received notice of this lawsuit. (Id.) The sale was
therefore not finalized. Elliot maintains that, until he saw
Plaintiff's lawsuit, he did not know the Littlejohns did
not reside at the property. (Id.).
light of Plaintiff's representations in his Complaint
that the Litttlejohns did not receive actual notice of the
sale, Elliot sought and received for the City a nonsuit
dismissing the tax sale case from the Lynchburg City Circuit
Court. (Dkt. 38-1 at ECF 2-3, 22). He refunded the purchase
price to the highest bidder at the auction. (Id. at
ECF 3). Additionally, Elliot “never had a key to the
house located on the property, and never gave a key to the
higher bidder or anyone else, ” nor did he or the
City's representatives give permission for anyone to
enter the house or remove the personal property inside.
on these facts, Plaintiff's claims fail. His claim for
prospective relief (and the continuation of the TRO)
forbidding the sale of his house must be dismissed because
the tax sale case in state court has been nonsuited and the
sale has been cancelled. Additionally, Plaintiff cannot
establish a likelihood of success on his procedural due
process claim, which requires proof of (1) a protected
property interest (2) deprived by state action (3) without
constitutionally adequate procedures. Sansotta v. Town of
Nags Head, 724 F.3d 533, 540 (4th Cir. 2013). The last
two elements are absent, and thus neither injunctive relief
nor damages are proper.
Defendants have not deprived Plaintiff of his property, nor
is there currently any action pending seeking to do so.
Sansotta, 724 F.3d at 540 (finding plaintiffs due
process claim failed because municipality “never
deprived them” of their interests). Second, Elliot
followed constitutionally adequate procedures in abiding by
Virginia law on tax sales. Specifically, he sent a notice to
the Littlejohns' last known address (in good faith
reliance on the City's records, the accuracy of which he
had no reason to doubt) and waited the statutorily mandated
30-day period before instituting a tax sale case against
them. Va. Code § 58.1-3965; dkt. 38-1 at ECF 1, 4-5;
see Sansotta, 724 F.3d at 541 (finding
“legitimate government actions intended simply to
enforce” ordinances did not violate due process; noting
that municipal officials' actions are evaluated
“based on the circumstances at the time the government
acted” and are entitled to a presumption of good
faith). And he instituted a proper tax sale lawsuit in state
court, again effecting service at what he believed to be the
Littlejohns' last known address. “Due process does not
require that a property owner receive actual notice before
the government may take his property.” Jones v.
Flowers, 547 U.S. 220, 226 (2006).
damages claim pertaining to Plaintiff's house fails for
similar reasons. Because the house was not sold, there has
been no deprivation. And because Defendants made reasonable
attempts to provide notice and had no reason to doubt the
success of their efforts, there was not constitutionally
Plaintiff contends Defendants are responsible for depriving
him of his personal property, which he asserts was taken from
the home, placed on the street curb, and then stolen. (Dkt.
43 at ECF 1). Taking Plaintiff's statements as true, he
nonetheless has failed to demonstrate that the deprivation is
attributable to “state action, ” i.e.,
the Defendants. Elliot denies having any knowledge of
personal property being removed from the home, possessing a
key to the home, or granting anyone authority to enter the
home. (Dkt. 38-1 at ECF 3).
response, Plaintiff writes in his affidavit that “the
person who brought [sic] the house . . . states
James Elliot gave him permission to” enter it and place
the property curbside. (Dkt. 43 at ECF 1). Unfortunately for
Plaintiff, this statement by the unnamed would-be purchaser
is hearsay excluded from consideration on summary judgment,
and thus it cannot be used to create a genuine issue of
material fact. Fed.R.Civ.P. 56(c); Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir.
1996) (“[S]ummary judgment affidavits cannot be . . .
based upon hearsay”); Sakaria v. Trans World
Airlines, 8 F.3d 164, 171 (4th Cir. 1993); Md.
Highways Contractors Ass 'n, Inc. v. Maryland, 933
F.2d 1246, 1251 (4th Cir. 1991).
these reasons, Defendants' motion for summary judgment
will be granted, the TRO will be dissolved, and this case
will be dismissed ...