Summary of a Recent
Judicial Development in
Renewable Energy

42 U.S.C. § 1983 Claims Require Showing of a Custom
or Policy by Government Authorities

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Porter v. Gentry County Comm'n, No. 08-6029-CV-SJ-FJG, 2008 WL 3156969 (W.D. Mo. Aug. 4, 2008), the United States District Court for the Western District of Missouri, St. Joseph Division, held that a plaintiff's complaint concerning nuisance from wind turbines constructed near his home contained insufficient facts to support a claim under 42 U.S.C. § 1983, and therefore dismissed his case.

Background

The plaintiff sued the Gentry County Commission and the Associate County Commissioner for several events stemming from the county's allowance of a private company, Wind Capital, to build several wind turbines within a mile of his home. Id. at *1. He claimed that the county failed to give adequate public notice or hold adequate public meetings about the construction of the turbine towers, and that the turbines resulted in a loss of equity in his property and created nuisances such as loud disturbing noises and a powerful strobe light effect resulting in loss of sleep and loss of quiet enjoyment of his property. Id. The plaintiff said he filed several police reports about the turbines, but all were ignored because of the tax revenue generated by Wind Capital. Id. He also claimed that since filing the police reports, he had essentially been harassed by the police and the County Commission, and that after he threatened to talk to a reporter about the situation the Assistant Commissioner and another man assaulted him and then had him falsely arrested. Id.

Arguments

The defendants moved to dismiss the plaintiff's case for failure to state a claim under 42 U.S.C. § 1983. Id. at *3.

The plaintiff argued that he had stated a valid claim under 42 U.S.C. § 1983 because his amended complaint charged that the county either tacitly approved or was deliberately indifferent toward the custom of ignoring his complaints to the police and the Associate Commissioner, and furthermore that the county ignored or approved the harassment so as not to jeopardize the tax revenue generated by Wind Capital. Id.

Analysis and Holdings

In order for a plaintiff to establish liability under § 1983, he must prove that "official policy involves a deliberate choice to follow a course of action made from among various alternatives by an official who is determined by state law to have the final authority to establish governmental policy." Id. at *4. The court concluded that the plaintiff's complaint did not contain any facts to support an established custom or policy of unconstitutional misconduct by the county or its employees, adding that just calling it a "custom" in his pleadings did not make it so. Id. The court also found that the complaint contained insufficient facts to show that the county had notice of the prior misbehavior or actions of the Commissioner, and therefore granted the county's motion to dismiss. Id.

The case was decided on August 4, 2008.