Abshire v. Parish of Iberia

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 95-30456 Summary Calendar ____________________

JOSEPH ABSHIRE,

Plaintiff-Appellee Cross-Appellant,

versus

PARISH OF IBERIA,

Defendant-Appellant Cross-Appellee,

and

PARISH OF IBERIA, ET AL.,

Defendants. _______________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (91-CV-1792) _______________________________________________________________

April 2, 1996 Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

This case is governed by Williamson County Regional Planning Comm'n

v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108 (1985), and

controlling precedent of this circuit. Accordingly, we vacate the

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. judgment of the district court and remand with instructions to

dismiss.

Joseph Abshire, the appellee/cross-appellant, filed this 42

U.S.C. § 1983 action in federal court against the Parish of Iberia

(the "Parish") and various individual defendants. All defendants

except the Parish have been dismissed from the suit. Abshire

contends that the Parish, acting under color of state law,

destroyed trees on his property without due process of law or just

compensation in violation of the Fifth and Fourteenth Amendments of

the United States Constitution. Although he never sought

compensation under available state judicial procedures, Abshire

claims in his federal suit that the Parish violated Louisiana

Revised Statute 3:4278.1(A) and that he was entitled to treble

damages under that statute. The magistrate judge entered judgment

in favor of Abshire in the amount of $44,752.

We hold that the district court lacked jurisdiction over

Abshire's constitutional claim under the Takings Clause of the

Fifth Amendment because the claim is not ripe. Williamson, 473

U.S. at 194-97; 105 S.Ct. at 3120-22; Liberty Mut. Ins. Co. v.

Louisiana Dep't of Ins., 62 F.3d 115, 117-18 (5th Cir. 1995);

Samaad v. City of Dallas, 940 F.2d 925, 933-35 (5th Cir. 1991). No

constitutional violation occurs until just compensation has been

denied. Id. Abshire never resorted to available state judicial

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claim as unripe. Id. In addition, we note that Abshire has never

contended that state remedies were inadequate or that resort to

them would have been futile. To the contrary, Abshire consistently

has relied upon the Louisiana statutory remedies in making his case

in federal court. Id.; see also La. Rev. Stat. Ann. 3:4278.1 (West

1995).

To the extent that Abshire is claiming a denial of procedural

due process under the Fourteenth Amendment, this claim too must

fail because Abshire has endorsed, not challenged, the state

deprivation remedy. Liberty Mut. Ins., 62 F.3d at 118.

There being no violation of a constitutional right cognizable

under 42 U.S.C. § 1983, we VACATE the district court's judgment and

REMAND with instructions to dismiss all federal claims. Any

supplemental state claims may be dismissed, in the district court's

discretion, pursuant to 28 U.S.C. § 1367(c)(3).

VACATED and REMANDED with instructions.

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