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Carlone v. City of Saint Paul

United States District Court, D. Minnesota

September 13, 2017

Patrick A. Carlone, Plaintiff,
v.
City of St. Paul, Defendant.

          Patrick A. Carlone, Pro Se, St. Paul, Minnesota.

          Cheri M. Sisk, Esq., City of St. Paul Attorney's Office, St. Paul, Minnesota.

          REPORT AND RECOMMENDATION

          STEVEN E. RAU, United States Magistrate Judge

         The above-captioned case comes before the undersigned on Defendant City of St. Paul's (the “City”) Motion to Dismiss [Doc. No. 10]. This matter was referred for the resolution of pretrial matters pursuant to 28 U.S.C. § 636(b)(1) and District of Minnesota Local Rule 72.1. (Order of Reference) [Doc. No. 16]. For the reasons stated below, the Court recommends the Motion to Dismiss be granted.

         I. BACKGROUND

         Plaintiff Patrick A. Carlone (“Plaintiff”) initiated this lawsuit on December 19, 2016, and filed his Amended Complaint three months later. (Compl.) [Doc. No. 1]; (Am. Compl.) [Doc. No. 4]. Plaintiff alleges he is the “beneficial owner” of a vacant property in St. Paul, Minnesota (the “Property”), which he “acquired . . . with the intention of constructing a new home thereon.” (Am. Compl. ¶¶ 4-5). On November 18, 2016, the City issued a Vehicle Abatement Order to John Carlone, the listed property owner.[1] (Vehicle Abatement Order, Ex. A, Attached to Aff. of Cheri M. Sisk, “Sisk Aff.”) [Doc. No. 13-1].[2] Plaintiff alleges that the City “threatened” to tow the three inoperable vehicles he had placed on the property for the planned construction.[3] (Am. Compl. ¶¶ 6, 8). John Carlone appealed the Vehicle Abatement Order, and the Legislative Hearing Officer recommended that the City Council deny the appeal and grant John Carlone an extension until December 14, 2016, to remove the vehicles. (Ex. B, Attached to Sisk Aff.). The City Council adopted the recommendation on December 7, 2016. (Id.). Plaintiff alleges that the City Council affirmed the City's decision, which made “the action a policy or custom” of the City. (Am. Compl. ¶ 9). Plaintiff alleges that, based on the City's actions, he “was forced to abandon his attempt to construct a new home on the premises.” (Id. ¶ 11). Plaintiff alleges that he was deprived of his property without due process of law, raising a claim under 42 U.S.C. § 1983, for violations of his constitutional rights under the Fifth and Fourteenth Amendments. (Id. ¶¶ 10, 12).

         On April 21, 2017, the City filed its Motion to Dismiss, arguing that the Court lacks subject matter jurisdiction. Specifically, the City argues that Plaintiff's claim challenges the City Council's quasi-judicial decision, for which the sole option for review is a writ of certiorari to the Minnesota Court of Appeals. (City's Mem. in Supp. of its Mot. to Dismiss, “Mem. in Supp.”) [Doc. No. 12 at 3-4] (citing Zweber v. Credit River Twp., 882 N.W.2d 605, 610 (Minn. 2016); County of Washington v. City of Oak Park Heights, 818 N.W.2d 533, 539 (Minn. 2012)). The City further alleges that the Amended Complaint does not specify why the City Council's actions were improper or what due process was lacking, and therefore, it fails to state a claim upon which relief may be granted. (Id. at 4).

         The Court heard oral argument on June 19, 2017, and the matter is now ripe for adjudication. (Minute Entry Dated June 19, 2017) [Doc. No. 26].

         II. DISCUSSION

         The Court discusses each of the City's arguments in turn.

         A. Subject Matter Jurisdiction

         1. Legal Standard

         “A motion to dismiss pursuant to Rule 12(b)(1) challenges the Court's subject matter jurisdiction and requires the Court to examine whether it has authority to decide the claims.” Damon v. Groteboer, 937 F.Supp.2d 1048, 1063 (D. Minn. 2013) (Tunheim, J.). “In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). “In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Id.

         2. ...


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