Boihem v. Drainage & Sewerage Department of Jefferson Parish
Boihem v. Drainage & Sewerage Department of Jefferson Parish
Opinion of the Court
This matter is before the Court on the motion of the defendants
Plaintiffs in this suit are “owners of property adjacent to and/or contiguous with an open drainage canal designated as the ‘Suburban Canal’ in the Parish of Jefferson (East Bank), State of Louisiana.”
Defendants do not dispute that there has been sloughing or erosion of the banks of Suburban Canal for many years and, at least, prior to October 4, 1978.
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Union Planters Nat. Leasing v. Woods, 687 F.2d 117, 119 (5th Cir. 1982). The party seeking summary disposition must demonstrate the absence of a genuine issue of material fact and the appropriateness of judgment as a matter of law. Id. Defendants have met this requirement.
The meeting took place in the fall of 1975 at Sabella’s home with Condon, Pilney, and four or five property owners in attendance. Condon, as Director of Drainage and Sewerage for Jefferson Parish, explained that
It is undisputed that there were no other incidents where the Parish had constructed bulkheads along the banks of any canal with property owners contributing toward payment of a portion of the cost thereof.
Defense of a proper summary judgment motion requires more than a mere denial. The party opposed to the motion “is required to bring forward ‘significant probative evidence’ demonstrating the existence of a triable issue of fact.” Union Planters Nat. Leasing v. Woods, supra at 119. The record herein reflects no such probative evidence to demonstrate that the Parish and/or its authorized representatives operated in a manner to deprive the plaintiffs of any constitutional property rights. Section 1983 plaintiffs must prove both (1) deprivation of a federal constitutional or legal right ... which (2) resulted from “the sort of abuse of government power that is necessary to raise an ordinary tort by a government agent to the stature of a violation of the Constitution.” York v. City of Cedartown, 648 F.2d 231, 232 (5th Cir. 1981), citing Williams v. Kelley, 624 F.2d 695, 697 (5th Cir. 1980). The undisputed facts in this case suggest no such abuse of governmental power. The record reflects that the Parish has been active in planning and constructing bulkheads along various drainage canals in Jefferson Parish, including Bonnabel Canal, which was federally funded; Keyhole Canal in Westwego, which was completed entirely with State funds; and Soniat Canal, a project again funded by the State. As a result of á 1980 bond issue, $80 million dollars was approved by the voters for expanding and renovating the thirteen pumping stations in Jefferson Parish. This project includes doubling the capacity of the Suburban Canal pumping station, which increases the velocity of water being pumped through the canal. To handle this increase, the Parish is proposing to pave the canal, although the money is not yet available to perform this project. However, there is presently before the State Legislature an act to create a statewide drainage district, and an act has been submitted to the state which specifies Suburban Canal as being of the highest priority for that district.
The record does reflect that the only people who were offered the opportunity to have bulkheads built were those property owners along Suburban Canal who had been in attendance at the meetings at Sa-bella’s, and that no notice was mailed to any of the other property owners along the canal. However, in view of the ongoing attempts by the Parish to solve the drainage problems, not only along other canals, but along Suburban Canal as well, the mere fact that some property owners were not given notice of the program offered to others, is not evidence of a Constitutional violation that would bring this suit within the purview of 42 U.S.C. 1983. While liability may be imposed on municipalities for deprivations of constitutional rights undertaken pursuant to municipal policy, whether officially promulgated or authorized by custom, the failure to give notice at best constitutes an isolated incident which does not indicate the kind of systematic abuse required for a 1983 cause of action. Berry v. McLemore, 670 F.2d 30 (5th Cir. 1982). Although the Parish may have been negligent, its conduct has not been shown to be one of deliberate indifference to constitutional violations. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
Accordingly, defendants’ motion for summary judgment is granted.
. Drainage & Sewerage Department of Jefferson Parish; Prat P. Reddy, as Director of Drainage Department of Jefferson Parish (East Bank); Herb Miller, as Director of Sewerage Department of Jefferson Parish (East Bank); Department of Safety, Division of Regulatory Inspection of Jefferson Parish; John W. Sanders, as Chief of Department of Safety, Division of Regulatory Inspection of Jefferson Parish; Jefferson Parish; and Joseph S. Yenni, as President of Jefferson Parish.
. Plaintiffs’ complaint, Par. 2.
. 42 U.S.C. § 1983, Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
42 U.S.C. § 1985, Conspiracy to interfere with civil rights
*1277 Depriving persons of rights or privileges (3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injury any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
. Defendants’ statement of material facts, Par. 1 and 2.
. Plaintiffs’ memorandum in opposition, p. 3.
. Plaintiffs’ response to defendants’ statement of material facts was merely a listing of legal conclusions. Material facts will be deemed admitted unless controverted. Local Rule 3.10.
. Pilney Deposition at 15-17, 19-21.
. Sabella Deposition at 8-10.
. Condon Deposition at 13-15, 20, 30-31.
. Id., at 20-22.
. Id., at 28; Sabella Deposition at 22.
. Pilney Deposition, Exhibit 2.
. Condon Deposition at 31.
. Id., at 39.
. Harris Deposition at 22-24, 46; Ison Deposition at 10-11, 23; Sabella Deposition at 21, 24-25.
. Defendants’ statement of material facts, Par. 11.
. Condon Deposition at 44-45.
. Affidavit of Lester Boihem.
. Condon Deposition at 64-65.
. Plaintiffs’ memorandum in opposition at 16.
. Russo Deposition at 26-32; Condon Deposition at 4-12, 22.
.As the Court finds no actionable conduct on the part of the Parish, it also finds no basis for a 1983 cause of action against the individual defendants named by plaintiffs in their respec
Reference
- Full Case Name
- Lester L. BOIHEM, Jr. v. DRAINAGE & SEWERAGE DEPARTMENT OF JEFFERSON PARISH
- Status
- Published