Mary et al v. Brister et al

Filing 123

ORDER AND REASONS - IT IS ORDERED that Defendants' Motion for Summary Judgment on Qualified Immunity (Rec. Doc. 78 ) is GRANTED, as set forth in document. Plaintiffs' claims for equal protection and retaliation against Defendants in their individual capacities are DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo on 3/25/2019. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARJORIE MARY ET AL.

CIVIL ACTION

VERSUS

NO: 17-4977

PATRICIA BRISTER ET AL.

SECTION: “H”(1)

ORDER AND REASONS
Before the Court is Defendants’ Motion for Summary Judgment on
Qualified Immunity (Doc. 78). For the following reasons, the Motion is
GRANTED.
BACKGROUND
This litigation arises out of a dispute between neighbors rivaled only by
that of the Hatfields and the McCoys. The neighbors, Allison and Scott Sortor
and Plaintiffs Marjorie and Cameron Mary, own adjacent parcels of land in the
upscale neighborhood of Beau Chene in Mandeville, Louisiana. When the
Marys purchased their home, it was bordered only by a vacant lot onto which
their property and surrounding properties drained. In September 2011, the
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Sortors purchased the vacant lot, and Stephen Ploue Construction Co. (“Ploue”)
began construction of the Sortor’s home. Before beginning construction, the lot
had to be graded and filled. Ploue worked with the St. Tammany Parish
Government to obtain the necessary approval for a fill plan. Plaintiffs allege
that in approving the Sortor’s fill plan, government officials failed to enforce
St. Tammany Code of Ordinances Chapter 7 Article I Section 7-002.00 (the
“Net Fill Ordinance”).

Plaintiffs allege that the fill added to the Sortors'

property in violation of the Net Fill Ordinance changed the natural drainage
of their property and caused it damage. On March 15, 2013, the Marys brought
suit against the Sortors and Ploue in state court. That suit remains ongoing.
Thereafter, on May 16, 2017, Plaintiffs brought a § 1983 suit in this
Court against various St. Tammany Parish government officials, both in their
official and individual capacities: Patricia Brister, Parish President; Gina
Campo, Director of Departments and Second Deputy Chief Administrative
Officer; Kelly Rabalais, Executive Counsel; Charles Williams, Director of
Engineering; and Paul Carroll, drainage engineer. Plaintiffs allege that
Defendants violated their rights to equal protection by treating them
differently than similarly situated persons in their enforcement of the Net Fill
Ordinance. On July 30, 2018, Defendants moved for a finding of qualified
immunity on Plaintiffs’ equal protection claims against Defendants in their
individual capacities.
Thereafter, Plaintiffs filed a First Amended Complaint adding claims
against Defendants under § 1983 for violations of their substantive due process
rights and First Amendment retaliation. They allege that Defendants
retaliated against them for exercising their constitutional right to bring the
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state court lawsuit by blocking consideration of a Code Enforcement complaint
that they filed with the Parish in September 2017. In response to these
amendments, Defendants supplemented their Motion for Summary Judgment
seeking a finding of qualified immunity on Plaintiffs’ First Amendment
retaliation claims. Defendants have not moved for qualified immunity on
Plaintiffs’ substantive due process claims. Plaintiffs oppose.
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” 1 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 2
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 3 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 4 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish

Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
3 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
4 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
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the existence of an element essential to that party’s case.” 5 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.” 6 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 7 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 8

LAW AND ANALYSIS
Defendants move for summary judgment, arguing that they are entitled
to qualified immunity on Plaintiffs’ § 1983 claims against them in their
individual capacities. Qualified immunity serves to “shield[] government
officials from civil damages liability unless the official violated a statutory or
constitutional right that was clearly established at the time of the challenged
conduct.” 9 “Once a defendant raises the defense of qualified immunity, ‘the

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
7 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
8 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
9 Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012).
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burden shifts to the plaintiff to rebut this defense by establishing that the
official’s allegedly wrongful conduct violated clearly established law.’” 10
In Saucier v. Katz, the Supreme Court promulgated a two-step analysis
to determine if an official has stepped outside the bounds of qualified
immunity. 11 Under that test, the initial inquiry is whether the Plaintiff has
alleged a constitutional violation. 12 If established, the next inquiry is whether
the defendant’s conduct was objectively reasonable in light of clearly
established law at the time the conduct occurred. 13 This Court will consider
this inquiry in light of both Plaintiffs’ equal protection and First Amendment
retaliation claims.
A. Equal Protection Claim
Defendants argue that Plaintiffs cannot satisfy the first step of the
qualified immunity analysis, that is, they cannot prove a constitutional
violation in support of their equal protection claim. “[T]he equal protection
rights of an individual, independent of membership in a suspect class, can be
violated by unequal treatment by the government.” 14 “It is well established
that [a] violation of equal protection occurs only when the government treats
someone differently than others similarly situated.” 15 Plaintiffs bring a “class
of one” equal protection claim. The Fifth Circuit recognizes three different
types

of

“class

of

one”

claims:

“selective

enforcement;”

“personal

Harris v. Serpas, 745 f.3d 767 (5th Cir. 2014) (quoting Brumfield v. Hollins, 551
F.3d 322, 326 (5th Cir. 2008)).
11 533 U.S. 194, 201 (2001).
12 Id.
13 Id.
14 Shipp v. McMahon, 54 F. App’x 413 (5th Cir. 2002).
15 Bush v. City of Gulfport, Miss., 454 F. App’x 270, 280 (5th Cir. 2011).
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vindictiveness;” and adverse zoning permit decisions, and each has different
requirements of proof. 16 The threshold question then is which type of equal
protection claim Plaintiffs bring. Defendants argue Plaintiffs’ claim is a
selective enforcement “class of one” claim, while Plaintiffs argue that they
bring a land use and permitting claim.
Plaintiffs rely on Mikeska v. City of Galveston to argue that because their
claim involves a zoning and permitting decision, it is more akin to a land use
and permitting claim than a selective enforcement claim. In Mikeska, the Fifth
Circuit held that the plaintiffs had stated a land use and permitting “class of
one” equal protection claim where they complained that the defendant had
denied them permits and cut off the utilities to their home when it had not
taken these actions against similarly situated homes. 17 Likewise, the Fifth
Circuit in Lindquist v. City of Pasadena, Tex held that the plaintiffs had stated
a land use and permitting claim when they alleged that “the city council
refused to grant them a used car dealer license while granting licenses to
others similarly situated.” 18
The Court finds Plaintiffs’ reliance on this case law troubling because,
unlike in Mikeska and Lindquist, Plaintiffs are not seeking a zoning permit or
license. Rather, they are the neighbors of the party that sought the permit at
issue. Further, there is no allegation that any permit was denied. Rather,
Plaintiffs complain that Defendants failed to properly enforce the Parish’s
ordinances in approving a fill plan. Stated differently, Plaintiffs’ claim is that
See Evergreen Flying Servs., Inc. v. Town of Rayville, No. CV 15-2574, 2016 WL
2940085, at *6 (W.D. La. Feb. 16, 2016).
17 Mikeska v. City of Galveston, 451 F.3d 376, 381 (5th Cir. 2006)
18 Lindquist v. City of Pasadena, Tex., 525 F.3d 383, 386 (5th Cir. 2008)
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Defendants chose to selectively enforce the Net Fill Ordinance by allowing the
Sorters to add fill in violation of the ordinance (and where the ordinance was
enforced in other similar situations). 19 The facts here are therefore more akin
to those in Horton v. City of Smithville. 20 In Horton, the plaintiffs brought an
equal protection claim against the City after their neighbors, with the
participation and encouragement of the City, hosted a live music event in
violation of zoning ordinances. In the per curiam opinion, the Fifth Circuit held
that the plaintiff’s equal protection claim sounded in selective enforcement. 21
This Court holds then that Plaintiffs’ equal protection claim likewise
sounds in selective enforcement. To succeed on a “class of one” selective
enforcement equal protection claim, Plaintiffs must show (1) that they were
intentionally treated differently from others similarly situated, (2) that there
is no rational basis for the difference in treatment, 22 and (3) that the
“government official’s acts were motivated by improper considerations, such as
race, religion, or the desire to prevent the exercise of a constitutional right.” 23
Defendants allege that Plaintiffs cannot succeed on any of these prongs.
Because this Court finds that Plaintiffs cannot succeed on the third prong, it
need not address the others.

See Bryan v. City of Madison, Miss., 213 F.3d 267, 277 (5th Cir. 2000) (holding that
claim sounded in selective enforcement when argument was that they mayor was “selectively
using her powers against a single party”).
20 Horton v. City of Smithville, 117 F. App’x 345, 348 (5th Cir. 2004).
21 Id.; see also Smith v. City of Picayune, 795 F.2d 482, 487 (5th Cir. 1986) (holding
that where plaintiff complained that the zoning of his neighbor’s property violated zoning
laws, “a violation of state law by a state agency or actor does not constitute a denial of equal
protection unless the state acts with some kind of prohibited class-based animus.”).
22 Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
23 Bryan., 213 F.3d at 277.
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19

To prove the third prong of improper animus, “it must be shown that the
selective enforcement was deliberately based upon an unjustifiable standard
such as race, religion, or other arbitrary classification.” 24 Plaintiffs have not
shown this. Plaintiffs assert that Defendant Paul Carroll lied and misled
Plaintiffs regarding the fill on their neighbors’ property to cover up his own
mistake in erroneously approving the fill plan and save himself professional
embarrassment or negative employment consequences. They allege that such
an improper motive is sufficient to satisfy this prong. Even assuming these
facts are true, however, they do not show that Defendants treated Plaintiffs
differently because of their race, religion, or other arbitrary classification.
Accordingly, Plaintiffs have not created a material issue of fact as to this prong
and cannot establish a constitutional violation. Because Plaintiffs have failed
to establish an equal protection claim, “we need not address the second prong
(defendants’ objective reasonableness) for qualified-immunity analysis.” 25
Defendants are entitled to qualified immunity on Plaintiffs’ equal protection
claims against them in their individual capacities.
B. First Amendment Retaliation
In their First Amended Complaint, Plaintiffs added a claim for First
Amendment Retaliation. Plaintiffs’ allege that Defendants Brister, Campo,
and Rabalias retaliated against them for exercising their constitutional right
to bring the state court lawsuit against the Parish by blocking consideration of
the Code Enforcement complaint that they filed with the Parish in September
2017. It is undisputed that a prior code complaint, filed anonymously in 2013,
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25

Beeler v. Rounsavall, 328 F.3d 813, 817 (5th Cir. 2003).
Porter v. Valdez, 424 F. App’x 382, 388 (5th Cir. 2011).
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regarding the Sortors’ property had previously been addressed and closed by
the Parish. While Defendants believe the prior complaint was filed by the
Marys, the Marys dispute this. When the Marys filed their 2017 code
complaint, the Parish’s response indicated that it had previously investigated
the complaint and found there was no violation of Parish ordinances. Plaintiffs
complain that the “investigation” of the 2013 complaint amounted to an email
to Paul Carroll to which he inaccurately responded that no code violation
existed on the Sortors’ property. They further complain that Defendants refuse
to give their 2017 complaint a case number or make an official decision that
could be appealed.
Defendants move for summary judgment on this claim, arguing that they
are entitled to qualified immunity. 26 Even assuming, without deciding, that
Plaintiffs have established a violation of a clearly established constitutional
right, this Court cannot say that Defendants acted unreasonably under the
circumstances. “‘Under the qualified immunity standard, government officials
are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” 27 “[G]overnment officials performing
discretionary functions, generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or

Plaintiffs argue that such a motion is premature and that they should be afforded a
fair opportunity for discovery. However, Plaintiffs have not identified any particular
discovery that they need to respond. Further, even taking the facts in a light most favorable
to Plaintiffs, summary judgment granting qualified immunity is appropriate.
27 Thompson v. City of Starkville, Miss., 901 F.2d 456, 468–69 (5th Cir. 1990) (quoting
Elliott v. Perez, 751 F.2d 1472, 1477 n.13 (5th Cir.1985)).
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constitutional rights of which a reasonable person would have known.” 28 This
Court cannot say that Defendants’ actions, in refusing to consider a duplicative
code enforcement complaint, are unreasonable or that they should have known
that such an action would violate clearly established rights. Defendants acted
within their discretion in refusing to consider the duplicative complaint.
Accordingly, Defendants are entitled to qualified immunity on Plaintiffs’ First
Amendment retaliation claims against them in their individual capacity.
CONCLUSION
For the foregoing reasons, the Motion is GRANTED, and Plaintiffs’
claims for equal protection and retaliation against Defendants in their
individual capacities are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 25th day of March, 2019.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

28

Id.

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