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Castello v. Head

United States District Court, E.D. Louisiana

January 21, 2015

FREDDIE O. CASTELLO, III,
v.
STACY HEAD, ET AL., Section

ORDER AND REASONS

JAY C. ZAINEY, District Judge.

Before the Court is a Motion to Dismiss (Rec. Doc. 8) filed by defendant Errol G. Williams ("Williams"). Plaintiff Freddie Castello opposes the motion (Rec. Doc. 10).[1] The motion is before the Court on the briefs without oral argument.

I. BACKGROUND

Plaintiff filed the Complaint in this matter on September 5, 2014, naming Stacy Head, Eva Sohl, Pura Bascos, and Erroll Williams as defendants. Plaintiff styles this action in his Complaint as one brought under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962, et seq. ("RICO"). Plaintiff also argues that property taxes on 2336 Robert St., New Orleans, LA, 70115, ("the Property") were unjustly raised in 2008.

Plaintiff claims that city councilwoman Stacy Head has bought ten properties over the past several years, including one property that she bought and resold which was recommended to be "demolished" by the Freret Neighborhood Center. Turning to the Property with which Plaintiff is concerned, he claims that in September Head stopped by 2336 Robert St. and informed him that the Property is on the "FEMA Demolition List." Plaintiff also claims that a supervisor of "Code Enforcement, " Pura Bascos, stated at one point that "the house would [b]e going up For Sale.'" (Rec. Doc. 1, at 9). Plaintiff alleges that two individuals from "Code Enforcement" stopped by the Property in August 2014. He further alleges that Eva Sohl, Director of the Freret Neighborhood Center, makes recommendations of which properties are blighted in spite of not having a background as a contractor or other related credentials. Plaintiff argues that "Stacy Head, [o]r Kathy Singleton ([h]er [m]other) is behind [t]he [m]otivation and [h]arassment" [of] "Code Enforcement." Id.

Plaintiff also contends that he sent letters to Williams, Assessor of Orleans Parish for the State of Louisiana, requesting a possible property tax extension and an explanation on why taxes on the Property went from "$963 [i]n 2007" to "$2800... [i]n 2008." (Rec. Doc. 1, at 5). He argues that "[t]hese [c]ity [e]mployees (Pura Bascos, Eva Sohl, Erroll Williams)[] [e]xercise a [g]reat [d]eal of [p]olitical [c]ontrol' over [c]ertain [p]ublic [s]ituations." Id. at 10. As alleged evidence of this, Plaintiff claims that Stacy Head used this political control "over the Assessor's Office" to raise the property taxes of a lawyer.[2] Id. at 2.

Plaintiff seeks an injunction to stop the sale and demolition of the Property, a "cease and desist order" to stop the Freret Neighborhood Center from making decisions as to which properties are blighted and/or should be demolished, and damages from Stacy Head, Pura Bascos, and Eva Sohl for mental anguish.

Defendant Williams seeks dismissal of all claims against him via F.R.C.P. 12(b)(1) or 12(b)(6), arguing that this Court lacks subject matter jurisdiction and that Plaintiff has failed to state a claim. This motion was noticed for submission on December 31, 2014. No trial date is set at this time.

II. DISCUSSION

Before the Court can entertain Williams' merits challenge under Rule 12(b)(6), the Court must determine whether it has subject matter jurisdiction over this action.[3] It is incumbent upon federal courts to dismiss an action whenever it appears that subject matter jurisdiction is lacking, and the Court must do so sua sponte if the parties have not brought the issue to the attention of the Court. Marshall v. Gibson's Prods., Inc., 584 F.2d 668, 671-72 (5th Cir. 1978) (citing Mansfield, Coldwater & Lake Mich. R.R. v. Swan, 111 U.S. 379 (1884)).

Here, Williams argues that Plaintiff cannot meet the antecedent "irreducible constitutional minimum of standing." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing, as required under Article III, Section 2, of the Constitution addresses who may bring the suit.15-101 Moore's Federal Practice - Civil § 101.20 ( See Presbytery of N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1469-1470 (3d Cir. 1994)). "The standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted." Id. ( See Allen v. Wright, 468 U.S. 737, 752 (1984)). Lastly, "[s]tanding must affirmatively appear in the record, and may not be inferred argumentatively from averments in pleadings." Id. ( See Footnote 39. 28 U.S.C. § 2201(a). See also Advisory Committee Note to 1937 Adoption to Fed.R.Civ.P. 57 (see § 57App.01[2])).

As held by the Fifth Circuit in In Re Mirant Corp., 675 F.3d 530 (5th Cir. 2012):

Constitutional standing requires three elements: First, the plaintiff must have suffered an "injury in fact" - an invasion of a legally protected interest which is (a) concrete and particularized; and (b) "actual or imminent, not conjectural' or hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be "fairly... trace[able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely, " as opposed to merely "speculative, " that the injury will be "redressed by a favorable decision."

In Re Mirant Corp., 675 F.3d 530, 33 (5th Cir. 2012) ( citing Lujan, 504 U.S. at 560-61 ...


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