United States District Court, E.D. North Carolina, Eastern Division
DR. JOSEPH ASKEW, et al., Plaintiffs,
CITY OF KINSTON, et al., Defendants.
C. DEVER III United States District Judge.
January 22, 2019, Dr. Joseph Askew ("Askew"),
Nathaniel Baker ("N. Baker"), Gordon Wade
("Wade"), Curtis Washington
("Washington"), and Askew's Day Care, Inc.
("Askew's Day Care"; collectively
"plaintiffs"), proceeding pro se, filed a complaint
against the City of Kinston ("Kinston"), Greg
Dempsey ("Dempsey"), Jason Baker ("J.
Baker"), Jackie Rogers ("Rogers"), and Adam
Short ("Short"; collectively
"defendants") [D.E. 1]. Plaintiffs allege
"violations of their [Fourteenth] amendment, substantial
due process, equal protection rights, discrimination,
disparity and condemnation of a historical home."
Id.¶ 20. On January 31, 2019, plaintiffs moved
for a temporary restraining order ("TRO") and a
preliminary injunction [D.E. 11]. On February 6, 2019,
plaintiffs moved for a jury trial [D.E. 13].
February 21, 2019, defendants moved to dismiss
plaintiffs' complaint under Rules 12(b)(1), (2), (4), and
(5) of the Federal Rules of Civil Procedure [D.E. 23], filed
supplemental exhibits [D.E. 24-32], filed a memorandum in
support [D.E. 33], and responded in opposition to
plaintiffs' motions for a TRO and preliminary injunction
[D.E. 34]. OnFebruary 22, 2019, the court notified plaintiffs
about the motion, the consequences of failing to respond, and
the response deadline [D.E. 35]. See Roseboro v.
Garrison, 528 F.2d 309, 310 (4lh Cir. 1975) (per
curiam). On April 1, 2019, plaintiffs responded in opposition
to defendants' motion to dismiss and dismissed Dempsey,
J. Baker, Rogers, and Short as defendants [D.E. 38]. On April
15, 2019, defendants replied [D.E. 40]. As explained below,
the court grants defendants' motion to dismiss, dismisses
plaintiffs' complaint, and denies plaintiffs' motions
for a TRO and preliminary injunction and for a jury trial.
complaint concerns the condemnation or possible condemnation
of six properties in Kinston, North Carolina: 510 East Gordon
Street, 603 East Gordon Street, 607 East Gordon Street, 110
Trianon Street, 412 Norm Mitchell Street, and 610 Norm
Independent Street See Compl. [D.E. 1] 4, 9.
Plaintiffs are "individual citizens who have personal
and private cause concerning the demolitions, eminent domain,
[and] takings of property in Black neighborhoods."
Id. ¶ 5. Askew, at one time, was one of the
largest property owners in the Trianon Historical District in
Kinston, North Carolina. See Id. at 5.
Baker resides at 607 East Gordon Street and "is the
manager of the subject property... and is in charge of its
upkeep." Id. at 9. Washington owns 610 North
Independence Street See Id. Wade is
repairing 412 Mitchell Street. See id.
January 14, 2013, Kinston released a list of 30 houses
"slated for demolition." Id. at 4. Among
the houses to be demolished were 510 East Gordon Street, 603
East Gordon Street, 607 East Gordon Street, and 110 Trianon
Street. See Id. At the time, members of the
Askew family owned these four properties. See
Id. On May 12, 2017, Joseph Askew Jr. ("Askew
Jr.") received a letter of condemnation from Kinston
concerning 603 East Gordon Street See Id.
¶ 11. Plaintiffs allege that 603 East Gordon Street, 607
East Gordon Street, and 110 Trianon Street are part of the
Trianon Historical District. See Id. at 5.
met with J. Baker, a city employee in "code
enforcement," to discuss the condemned properties.
See Id. at 4. Plaintiffs allege that J.
Baker told Askew that "they could demolish 510 East
Gordon Street with community grant funds." Id.;
see Id. ¶ 13. Plaintiffs allege that
the community grant funds are available "to help Blacks
and low income individuals that could not afford to have
their historic homes rehabilitated or demolished."
Id. at 5. Instead of demolishing 501 East Gordon
Street, Askew decided to repair it, and he asked J. Baker if
the community grant funds could be used to demolish 603 East
Gordon Street. See Id. at 4; ¶ 13. J.
Baker replied that he could not use community grant funds to
demolish 603 East Gordon Street because "it was a
historic property." Id. at 4. Plaintiffs allege
that this representation was not true and that J. Baker
misled Askew because he is racist. See id.
Askew could not use community grant funds to demolish 603
East Gordon Street, Askew asked for time to rehabilitate 603
East Gordon Street. See Id. ¶ 14.
Askew planned to save valuable historical materials from the
property, obtain grants from Housing and Urban Development
("HUD") and the Department of Veterans Affairs
("VA"), and convert the properties (including 110
North Trianon Street and 607 East Gordon Street) into a
building to house approximately 30 homeless veterans.
See Id. Although Askew asked for 180 days
to complete bis project, Rogers told Askew that he could have
75 days to rehabilitate the property. See
Id. Askew appealed to the Kinston City Council.
See Id. ¶ 16. Askew alleges that the
Kinston City Council only permitted him to present bis plans
for three minutes. See Id. ¶¶
17-18. The Kinston City Council denied Askew's appeal.
See Id. ¶ 18.
allege that Short, the director of city planning for Kinston,
told Askew that, because Askew only repaired 510 East Gordon
Street and never rented it, Kinston intended to demolish 603
East Gordon Street and "place a lien against it and then
take the property by foreclosure." Id. at 4.
Plaintiffs allege that Kinston's plan was part of "a
retaliatory tact surrounded by racial bias" because
Askew did not convert 510 East Gordon Street into rental
property. Id. Askew alleges that white property
owners were not required to convert their properties into
rental properties. See Id. at 5.
April 9, 2018, Kinston held a hearing concerning 607 East
Gordon Street and 110 North Trianon Street. See
Id. At the hearing, Askew read a statement accusing
Dempsey and other Kinston building inspectors of bias against
him due to a criminal incident. See id. at 5-6. At
the end of the hearing, Rogers gave Askew 60 days to complete
phase one of rehabilitation of 607 East Gordon Street, 120
days to complete phase two, and 120 days to complete phase
three. See Id. at 6. Rogers also gave Askew
120 days to repair 110 North Trianon Street. See
Id. Plaintiffs allege that Askew did not know that
the times to complete rehabilitation of 607 East Gordon
Street and 110 North Trianon Street would run concurrently.
120 days, Rogers inspected 110 North Trianon Street, noted
the minimal work that had been completed to repair the
property, and took pictures. See id, At 603 East
Gordon Street, Rogers allowed a demolition company to drive
across the property, damaging the hedges. See
Id. at 6-7. According to plaintiffs, "[n]o
small contractor in the area could have completed the work
needed for a historical property in the Trianon Historical
District in the time given by the building inspector."
Id. at 7. On January 7, 2019, Askew presented these
concerns to the Kinston City Council and requested
"three to five or ten years to do the repairs."
Id. at 7-8. At some point after that hearing, 603
East Gordon Street was demolished. See Id.
plaintiffs allege that Washington, who owns 610 North
Independence Street, had his auto mechanic building condemned
by Kinston. See Id. Plaintiffs also seek an
injunction concerning the property at 412 Mitchell Street
because Wade has started repairing the property. See