United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2069

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J. Michael Cormack, *

*

Plaintiff - Appellant, *

*

v. * 

*

Candice Settle-Beshears, individually *

and in her official capacity as City * Appeal from the United States

Attorney; City of Van Buren, Arkansas, * District Court for the Western

a municipality and political subdivision; * District of Arkansas.

Wesley Sandlin, VBPD Officer, Badge *

#480, in his official and individual *

capacity; Chris Hoffsomer, VBPD *

Officer, Badge #429, in his official *

and individual capacity, *

* 

Defendants - Appellees. *

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Submitted: December 13, 2006

 Filed: January 23, 2007

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Before LOKEN, Chief Judge, JOHN R. GIBSON and MURPHY, Circuit Judges.

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MURPHY, Circuit Judge.

J. Michael Cormack commenced this § 1983 action against the City of Van

Buren, Arkansas and several of its employees, alleging that his constitutional rights

were violated when Van Buren annexed his land and applied a city ordinance to
1

The Honorable Robert T. Dawson, United States District Judge for the Western

District of Arkansas.

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prohibit fireworks from being sold on it. The district court1

 granted the defendants'

motion to dismiss all claims, and Cormack appeals. We affirm.

Cormack owns property on which he has been operating a golf driving range.

In 1999 he entered into a written lease agreement allowing part of his property to be

used for the sale of fireworks to the general public between June 20 and July 5 of

every year. The lease was to run for ten years, after which it could be extended for

another twenty. The lessee paid Cormack a flat fee as well as a percentage of the

firework sales. Cormack's property was outside the Van Buren city limits until

September 2004, when the city council of Van Buren enacted an ordinance annexing

various parcels of unincorporated property within the city boundaries. Cormack

alleged in his complaint that he received no notice from the city that it was

considering annexation and that he only became aware of the possible annexation

when a local television reporter told him about it. Despite Cormack's opposition, the

city annexed his property.

In June 2005 the tent from which the fireworks were to be sold was again

erected on Cormack's land. The city ordinance prohibiting the sale of fireworks

provided that a violation of the ordinance was a misdemeanor punishable by a fine.

On June 13 appellee Wesley Sandlin, Van Buren's code enforcement officer, went to

Cormack's property and told him to take the tent down. Cormack asked why and

Sandlin replied, "Only the mayor of Van Buren can approve this." When the mayor

was contacted, he referred all inquiries to the city attorney, appellee Candice SettleBeshears. She told Cormack's lawyer that the "building code" prohibited the sale of

fireworks. The next day the lawyer faxed a letter to Settle-Beshears and the mayor of

Van Buren maintaining that under the takings clause of the Constitution Van Buren

could not restrict Cormack's sale of fireworks and stating that Cormack would begin

selling fireworks on June 20.
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On June 17 Settle-Beshears informed Cormack's counsel that she would direct

code enforcement to "shut the business down" if he went ahead with his plans. Police

officers Sandlin and Chris Hoffsomer went to Cormack's property on June 20 and

cited him for violating the city ordinance. Cormack's complaint alleges that the

officers shut down his business "upon threat of arrest and deprivation of civil liberty."

At oral argument counsel stated that the officers wrapped police tape around the

fireworks tent and told Cormack they would arrest him if he removed the tape.

Cormack contested his citation in state court and was found guilty in a criminal

proceeding in municipal court. He appealed, and the case is still pending before an

Arkansas district court.

On the same day that Cormack was cited for violating the city ordinance, he

filed a complaint in federal district court under 42 U.S.C. § 1983, alleging violations

of his rights under the First, Fourth, Fifth, and Fourteenth Amendments to the

Constitution. The district court dismissed all of plaintiff's claims against the city. It

ruled that it could not consider Cormack's claims under the Fifth and Fourteenth

Amendments because Cormack had not exhausted his remedies under state law. It

dismissed his Fourth Amendment claim without prejudice under Younger v. Harris,

401 U.S. 37 (1971), and his First Amendment claim for failure to state a valid claim.

Holding that the individual defendants were entitled to qualified immunity, the court

also dismissed plaintiff's claims against them. Cormack appeals. We review the grant

of a motion to dismiss de novo, taking all well pleaded factual allegations in the

complaint as true and making all reasonable inferences in favor of the plaintiff.

Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).

Cormack has not raised any First Amendment argument on appeal so it is

waived, see Hacker v. Barnhart, 459 F.3d 934, 937 n.2 (8th Cir. 2006), and we turn

to his claim under the Fifth Amendment. He argues that Van Buren's annexation of

his property and enforcement of its ordinance prohibiting the sale of fireworks

amounted to a regulatory taking. Although under Williamson County Regional

Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985),
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federal courts are barred from considering the merits of a takings claim until a private

litigant exhausts state remedies, Cormack believes that an exception applies to this

case. If a state's remedies are inadequate or unavailable, exhaustion is not required,

see id. at 196-97, and Cormack claims that Arkansas has no remedy which would

adequately compensate him for the taking.

This exception to Williamson County is narrow, and the claimant bears the

"heavy burden" of showing that the state remedy is inadequate. Deniz v. Municipality

of Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002). We have been unable to find a case

in which this court has declared a state's inverse condemnation procedures to be

inadequate, and in Collier v. City of Springdale, 733 F.2d 1311 (8th Cir. 1984), we

held that Arkansas provides adequate mechanisms for its citizens to be justly

compensated for takings. See id. at 1316-17. 

At oral argument counsel for Cormack contended that case law since

Collier demonstrates that Arkansas state remedies are inadequate, but he did not say

how the regulatory takings jurisprudence of Arkansas is inconsistent with the Supreme

Court's leading decisions, let alone demonstrates that Arkansas courts provide less

constitutional protection than the federal courts. While the Arkansas Supreme Court

phrases its evaluation of takings claims differently from the United States Supreme

Court, there is simply no indication that Arkansas gives landowners less protection

than "the federal baseline." Kelo v. City of New London, 125 S. Ct. 2655, 2668

(2005).

Cormack next argues that the way in which the city annexed his land violated

the Fourteenth Amendment by failing to provide him with due process before the

annexation. He claims that he was not given notice of the contemplated annexation

fifteen days before the Van Buren city council's hearing on the annexation ordinance

as required by Arkansas law. See Ark. Code Ann. 14-40-502(b). He also claims that

when he attended the hearing he was never told that the sale of fireworks would be

prohibited if his property were annexed.
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We assume as we must, see Westcott, 901 F.2d at 1488, that the city council

failed to provide Cormack the notice which is required by Arkansas law. This

violation of Arkansas law does not offend the federal Constitution, however, because

"a sovereign vested with the power of eminent domain may exercise that power

consistent with the constitution without providing prior notice, hearing or

compensation so long as there exists an adequate [postdeprivation] mechanism for

obtaining compensation." Collier, 733 F.2d at 1314. Because Cormack has not

shown that Arkansas lacks an adequate postdeprivation mechanism to provide him

with just compensation for the alleged taking, his due process claim must fail.

Cormack contends that the city violated his Fourth Amendment rights when its

agents issued him a citation for selling fireworks on his property and put up police

tape on the fireworks tent and threatened him with arrest if he removed the tape. The

district court abstained under Younger v. Harris from exercising jurisdiction over this

claim. Younger abstention is appropriate when (1) the federal action would disrupt

an ongoing state judicial proceeding (2) which implicates important state interests and

(3) which provides an adequate opportunity to raise constitutional challenges.

Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432

(1982). Here, the state criminal proceedings against Cormack are still pending before

an Arkansas district court in which he can presumably raise the Fourth Amendment

in defense. In these circumstances abstention is appropriate. Moreover, state interests

in land use regulation may also be implicated in that case. See Night Clubs, Inc. v.

City of Fort Smith, 163 F.3d 475, 480 (8th Cir. 1998).

Lastly, Cormack argues that the district court erred when it found that appellees

Settle-Beshears, Sandlin, and Hoffsomer were entitled to qualified immunity. We

need not reach this point since Cormack's takings claim against all the appellees is not

yet ripe. His due process claims against the individual appellees should be dismissed

because Cormack's complaint fails to allege that they participated in the acts which he

alleges were unconstitutional. With respect to the Fourth Amendment claims against

these appellees, there is no need to reach the qualified immunity issue because we
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have concluded that Younger abstention was proper. See Warmus v. Melahn, 62 F.3d

252, 257 (8th Cir. 1995), vacated on other grounds, 517 U.S. 1241 (1996). 

We conclude that the district court properly dismissed Cormack's complaint and

accordingly affirm its judgment.

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