United States District Court, D. Minnesota
Patrick A. Carlone, Plaintiff,
City of St. Paul, Defendant.
Patrick A. Carlone, Pro Se, St. Paul, Minnesota.
M. Sisk, Esq., City of St. Paul Attorney's Office, St.
REPORT AND RECOMMENDATION
E. RAU, United States Magistrate Judge
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.
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. (Vehicle Abatement Order, Ex. A, Attached
to Aff. of Cheri M. Sisk, “Sisk Aff.”) [Doc. No.
13-1]. Plaintiff alleges that the City
“threatened” to tow the three inoperable vehicles
he had placed on the property for the planned
construction. (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).
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).
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].
Court discusses each of the City's arguments in turn.
Subject Matter Jurisdiction
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.”