     Case: 15-50038      Document: 00513258779         Page: 1    Date Filed: 11/04/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-50038                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
JOSEPH AMAYA,                                                            November 4, 2015
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellant,           Clerk
v.

CITY OF SAN ANTONIO,

                                                 Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:12-CV-574


Before DAVIS, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       The City of San Antonio demolished Joseph Amaya’s structure after it
deteriorated from fire damage. Amaya sued the city for an unconstitutional
taking based on both the state and federal constitutions and for violation of the
Fourth and Fourteenth Amendment.
       In dismissing Amaya’s suit, the district court opinion is well reasoned
and has ample support. First, under Texas law, the abatement of a public




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50038       Document: 00513258779          Page: 2     Date Filed: 11/04/2015



                                       No. 15-50038
nuisance is not a taking. 1 Public nuisance includes a building that is an
imminent danger to life or property. 2 Similarly, under federal law, destroying
property that threatens the public does not infringe the Fourth or Fourteenth
Amendment. 3 The evidence relied on to order demolition showed that Amaya’s
structure suffered significant fire damage and deteriorated after promised
repairs were not made. Moreover, Amaya produced no evidence to refute this
condition of the property. As such, because of the damage, deterioration, and
lack of repair, his structure posed a threat to the public and no taking or
constitutional violation occurred.
       Finally, for a Fifth Amendment claim to exist, a plaintiff must be denied
just compensation. 4 No denial of compensation occurs if a plaintiff fails to
exhaust state remedies. 5 In Texas, an inverse condemnation proceeding is
available for a plaintiff whose property is taken by the government. 6 Here
Amaya does not allege that he invoked the condemnation proceeding, and thus,
lacks a federal takings claim.
       For these reasons and those expressed in the careful opinion of the
district court, we AFFIRM.




       1  City of Dallas v. Stewart, 361 S.W.3d 562, 569 (Tex. 2012).
       2  San Antonio, Tex., Code § 6-175 (2015); Patel v. City of Everman, 179 S.W.3d 1, 11
(Tex. 2004).
        3 See RBIII, L.P. v. City of San Antonio, 713 F.3d 840, 844-47 (5th Cir. 2013) (“[T]he

City[’s]…decision to demolish the structure on an emergency basis was entitled to deference
and did not violate [plaintiff’s] right to procedural due process unless it was arbitrary or an
abuse of discretion.”); Kinnison v. City of San Antonio, 480 F. App’x 271, 277, 281 (5th Cir.
2012).
        4 Horton v. City of Smithville, 117 F. App’x 345, 347 (5th Cir. 2004) (per curiam).
        5 Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 195 (1985).
        6 VRC, L.L.C. v. City of Dallas, 391 F. Supp. 2d 437, 439 (N.D. Tex. 2005) (citing Tex.

Const. art. I § 17).
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