     Case: 16-31229      Document: 00514314548         Page: 1    Date Filed: 01/19/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                  FILED
                                                                              January 19, 2018
                                      No. 16-31229
                                                                               Lyle W. Cayce
                                                                                    Clerk
WAYNE WALKER, as Administrator of the Successions of Arnette Calhoun
Spells, Sr. and Arnette Calhoun Spells, Jr.,

               Plaintiff - Appellant

v.

NEW ORLEANS CITY,

               Defendant - Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:15-CV-3823


Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       This case involves a claim against the City of New Orleans for taking
property without due process of law in violation of the Fourteenth Amendment.
The district court dismissed the lawsuit for lack of standing and for failure to
state a claim. We vacate and remand for further proceedings.
       In 2014, the City commenced administrative proceedings alleging code
violations against the record owners of a blighted property. The record owners,


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-31229    Document: 00514314548     Page: 2   Date Filed: 01/19/2018



                                 No. 16-31229
Arnett Calhoun Spells and Arnett Spells, Jr., were deceased.           The City
attempted service on the Spells, sending notice by certified mail to the address
of the blighted property. The notice stated that if the Spells did not appear for
an administrative hearing, their absence would “be considered an admission of
liability.” The U.S. Postal Service returned the notice as “Not Deliverable” and
“Unable to Forward.” The City moved forward with an administrative hearing,
assessed significant fines for the code violations, and issued a demolition order
for the property. The City sent notice of the judgment again by certified mail
to the property’s address. The notice stated that the Spells had 30 days to
abate the code violations or the City would demolish the property. The Postal
Service again returned the notice as “Not Deliverable.”
      One year later and before the property was demolished, the Spells’ heirs
sued in federal court seeking a declaratory judgment that the administrative
hearing was void because the City gave inadequate notice. They also sought
damages. The heirs then opened the “succession” of the Spells’ estate, and one
heir, Wayne Walker (“Appellant”), was named succession administrator.
Appellant was substituted as the named plaintiff in the case.
      On the City’s motion, the district court dismissed the lawsuit under
Federal Rule of Civil Procedure 12(b)(1). The district court held that “because
the administrator could not rightfully bring a wrongful death action, the
administrator also does not have standing to bring a civil rights action under
42 U.S.C. § 1983.” Appellant contested this ruling in a motion for new trial.
The district court denied the motion, holding that, even if there were standing,
it would dismiss under Federal Rule 12(b)(6) because the complaint failed to
state a claim for deprivation of due process. Walker timely appealed.
      The district court erred in holding that a succession administrator lacks
standing to bring a § 1983 due process claim. The district court relied on
Pluet v. Frasier, in which this court stated that “a party must have standing
                                       2
    Case: 16-31229    Document: 00514314548     Page: 3   Date Filed: 01/19/2018



                                 No. 16-31229
under the state wrongful death or survival statutes to bring a claim under
[§ 1983].” 355 F.3d 381, 383 (5th Cir. 2004). A succession administrator has
no standing to bring a wrongful death claim under Louisiana law. See La. Civ.
Code Ann. art. 2315.2. Unlike Pluet, however, this case does not involve a
§ 1983 claim predicated on a wrongful death.        Appellant asserts a claim
relating to deprivation of property. Louisiana Code of Civil Procedure article
685 provides that “the succession representative . . . is the proper plaintiff to
sue to enforce a right of the deceased or of his succession.” Consequently,
Appellant has standing to the extent he seeks to enforce a right of the
succession.
      Moreover, Appellant may have stated a plausible claim for a due process
violation under Jones v. Flowers, 547 U.S. 220, 126 S. Ct. 1708 (2006). In
Flowers, the Court held that “when mailed notice of a tax sale is returned
unclaimed, the State must take additional reasonable steps to attempt to
provide notice to the property owner before selling his property, if it is
practicable to do so.” 547 U.S. at 225, 126 S. Ct. at 1713. The Court found that
the government violated due process by failing to take such reasonable steps
as sending notice by regular mail or posting notice on the property. Id. at 234-
35, id. at 1719. Here, as in Flowers, the City took no further steps after the
notices were returned unclaimed. Thus, Appellant may have stated a plausible
claim for a due process violation.
      In concluding, we note that this court was informed during oral
argument that the property at issue was sold by the heirs to pay the fines
imposed by the city. This seems to change the nature of the claimed due
process violation, and it is unclear whether the suit may proceed.
      Based on this set of unusual circumstances, we VACATE the district
court’s judgment and REMAND for further proceedings.


                                       3
