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Anderson v. Smith

United States District Court, D. Minnesota

March 28, 2019

Leonard N. Anderson, Plaintiff,
Ed Smith, in his individual capacity and his official capacity for his conduct under color of law, in the course and scope of his employment, as a City of St. Paul, Department of Safety Inspections Employee, and City of St. Paul, a political subdivision of the state of Minnesota, Defendants.

          Peter J. Nickitas, Peter J. Nickitas Law Office, Minneapolis, MN, for plaintiff Leonard N. Anderson.

          Megan D. Hafner and Judith A. Hanson, Saint Paul City Attorney's Office, Saint Paul, MN, for defendants Ed Smith and City of Saint Paul.



         Plaintiff Leonard N. Anderson is a St. Paul resident whose home and yard (the “Property”), due to concerns about their condition, have been the subject of many enforcement activities by the defendant City of St. Paul. Though not directly relevant to this case, Anderson alleges, and public records confirm, that his relationship with the City has been quarrelsome for quite some time. See First Am. Compl. (“Am. Compl.”) ¶¶ 17, 28-29 [ECF No. 27]; see also Anderson v. City of St. Paul, No. 15-cv-1636 (PJS/HB), 2016 WL 614384, at *1 (D. Minn. Feb. 16, 2016) [hereinafter “Anderson I”] (summarizing Anderson's relationship with the City). In this case, Anderson alleges that a subset of enforcement actions undertaken by the City and co-defendant Ed Smith, a City employee in the Department of Safety and Inspections, violated several of Anderson's federal constitutional rights and certain state statutory and common-law rights. Defendants seek dismissal of Anderson's claims under Federal Rules of Civil Procedure (“Rules”) 12(b)(6) and 12(c). Anderson's federal constitutional claims will be dismissed because they are not plausibly pleaded. Anderson's state-law claims will be dismissed because those claims lack an independent basis for federal jurisdiction, and the better choice is not to exercise supplemental jurisdiction over those claims given dismissal of the federal claims at this early stage of the proceedings.

         I [1]


         On September 29, 2014, the City inspected Anderson's property, and on the same day, it issued a correction notice informing Anderson that the inspection had revealed thirty-three alleged “deficiencies” that “violat[e] . . . the Saint Paul Legislative Code.” Am. Compl., Ex. A (footnote omitted); see also Id. ¶ 30. The deficiencies identified in that correction notice included items such as replacing or repairing roofing in specific areas, repairing or weather-sealing siding and other areas of the exterior, submitting a design for re-grading in one area to address a drainage issue, and making various other repairs to, or replacements of, parts of the building, among other items. Id., Ex. A at 2. The notice further informed Anderson that he must “correct[ ]” each alleged deficiency before the City's re-inspection, which would occur on or after November 18, 2014, or else face potential criminal charges, a civil lawsuit, or abatement or assessment by the City. Id., Ex. A at 1.

         Anderson appealed the September 29, 2014 correction notice, and-according to Anderson-he and the City resolved the issues raised in the notice by “stay[ing] and suspend[ing] . . . on one condition, and no other-that Mr. Anderson list his [Property] for sale.” Id. ¶ 31; see Aff. of Megan D. Hafner (“Hafner Aff.”), Ex. 1 [ECF No. 38]. Anderson further alleges that Defendants “did not impose, either in written or oral communication, a condition that if he failed to sell [the Property], that [Defendants] would revive their correction proceedings against him.” Am. Compl. ¶ 34. In fact, the City resolution describing the terms under which the City agreed to address Anderson's appeal was approved by the Saint Paul City Council and signed by the mayor on November 5, 2014, and provides in part as follows:

         WHEREAS, the Legislative Hearing Officer recommends that the City Council grant [an extension of approximately one year] until November 1, 2015 for compliance with the correction order dated September 29, 2014, if the following conditions are met:

1) the property must be listed for sale by November 17, 2014;
2) there shall be quarterly reports to the Legislative Hearing Officer detailing the progress in the sale, including a list of showings and offers; and
3) all repairs undertaken shall be made under permit; Now, Therefore, Be It RESOLVED, that the Saint Paul City Council hereby accepts and adopts the Legislative Hearing Officer's recommendation in this matter.

Hafner Aff., Ex. 1.[2]

         Anderson alleges that he did list the Property for sale at some point in 2014, but that it did not sell, despite his diligent efforts. Am. Compl. ¶¶ 32-33. He also alleges that he “hired a contractor to make repairs to the roof of his dwelling, conformably to the 33 point discrepancy notice.” Id. ¶ 35.


         On July 10, 2015, Anderson received a “Summary Abatement Order” (dated July 7) ordering him to “cut and remove tall grass, weeds and rank plant growth throughout” the Property. Id. ¶ 62. Anderson's Property includes wetland areas, with cattails, tall water plants, and wild water grass, but he alleges that the abatement order otherwise “has no basis in the objective reality that natural persons of ordinary intelligence and command of their respective five senses perceive.” Id. ¶¶ 64, 66. According to Anderson, no one has ever complained that his Property constituted a public or private nuisance, and that moreover the City has never taken any action to cut or remove tall grasses, thistles, and weeds growing on other, public property on the East Side of Saint Paul. Id. ¶¶ 63, 65. Nevertheless, on July 14, 2015, Smith and numerous Saint Paul police officers arrived at Anderson's Property to destroy vegetation pursuant to the Summary Abatement Order. Id. ¶ 69. But a number of people intervened, and Smith and the officers left the Property without carrying out any abatement activities. Id. ¶ 70.


         At some point after the aborted abatement activities, Anderson learned of the existence of a City-run website that contained information about certain actions the City has undertaken with respect to the Property. Id. ¶ 71. Of primary relevance to this action is a statement on that website that the Property's “[i]nterior is unsafe/uninhabitable”-a statement Anderson maintains is false. Id. ¶¶ 74, 78. The website lists October 10, 2011 as the date of both the complaint and the initial inspection, with periodic updates from November 19, 2014 through July 21, 2015 briefly describing subsequent inspections or “[r]echeck[s].” Id. ¶¶ 74-75. At least one of those inspections was attributed to Inspector 325, meaning Smith. Id. ¶ 74. Anderson alleges generally that he has “exercis[ed] reasonable effort to persuade the Defendants to correct, eliminate, retract, and mitigate” the allegedly false statements on the website, but the City has not removed them. Id. ¶ 83. According to Anderson, the website's content regarding the Property was “a contributing factor” in preventing Anderson from selling the Property. Id. ¶ 128.


         On May 25, 2018, Smith sent Anderson a second correction notice that included all the same alleged deficiencies identified in the September 29, 2014 correction notice, plus a new, thirty-fourth item alleging that Anderson unlawfully built a berm on his own property using fifty cubic yards of dirt that eroded onto the property of his neighbor to the north. Id., Ex. B; see also Id. ¶¶ 37-39. Smith, Anderson claims, issued the notice “as the direct result of” a complaint received from Anderson's northerly neighbors. Id. ¶ 50. Apparently unbeknownst to Smith, Anderson had previously sued those neighbors over a dispute involving an unlicensed tree cutter the neighbors had hired whose work had allegedly damaged trees on Anderson's Property. Id. ¶¶ 52-53.

         It is not entirely clear from the First Amended Complaint whether Anderson disputes that any soil from his berm had eroded onto the neighboring property. See Id. ¶¶ 40-41 (alleging that coniferous trees he planted along the berm “anchor the berm soil”). But he does explicitly take issue with the berm-related deficiency in other respects. He alleges that Smith issued the 2018 correction notice without knowing the location of the relevant property line, the volume of the dirt forming the berm, or even “whether or not dirt actually eroded onto” the neighboring property. Id. ¶¶ 43-45. He alleges that Smith failed to undertake “even minimal investigation” of the Property and did not make “minimal contact with” Anderson or his counsel, id. ¶ 51, did not include any legal citation in the correction notice, id. ¶ 46, and issued the notice “without any imminent, pressing need” to do so, id. ¶ 49. Anderson alleges that Smith “willfully refused to make minimal investigation because of his pre-existing animus” against Anderson stemming from an instance in which Anderson sued Smith in 2015. Id. ΒΆ 54. Anderson further alleges that his ...

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