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Wednesday, December 10, 2008

Ind. Decisions - Nonprecedential Disposition from the 7th Circuit

In this federal nonprecedential disposition, ("To be cited only in accordance with Fed. R. App. P. 32.1"), Deborah Walton v. City of Carmel (SD Ind., Judge Young), a 2-page order, the Court rules:

When Deborah Walton purchased her home in Carmel, Indiana, in 2000, she agreed to a host of covenants and restrictions—chief among them an easement permitting the Claybridge Homeowners Association (CHA) to maintain an entry wall and sign on a corner of her property. That wall runs to the edge of an adjacent road, and by doing so it interferes with the City of Carmel’s right‐of‐way (i.e. the road shoulder). After Walton notified the city of the problem (and requested that the city remove the entire wall), the city contacted the CHA. The CHA proposed a substitute solution—that the city consent to the encroachment on to its right‐of‐way. To that end the CHA filed a formal request, which the Carmel Board of Public Works and Safety approved following a public hearing.

Walton responded by suing the City of Carmel, its mayor, the city attorney, the CHA, and various other individuals under 42 U.S.C. § 1983, claiming that the city’s consentto‐ encroachment deprived her of property without due process of law. * * *

We agree with the district court’s reasoning and the magistrate judge’s report, which aptly summarizes Walton’s theory and its failing:

Plaintiff seems to be arguing that Carmel is required to protect whatever interest she has in the [land on which the right‐of‐way sits] by not giving up its rights without her consent, and if Carmel fails to do so, then she is deprived of due process under the Fifth and Fourteenth Amendments. Because the Constitution does not impose this requirement on Carmel, Plaintiff’s due process claim fails.
Walton has no right under the Constitution to the affirmative assistance of the government in protecting her property. See DeShaney v. Winnebago County Depʹt of Soc. Servs., 489 U.S. 189, 195‐96 (1989). Accordingly, the judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on December 10, 2008 05:47 PM
Posted to Ind. (7th Cir.) Decisions