Solum et al v. Board of County Commissioners for the County of Houston, The et al
Filing
82
ORDER denying as moot Third-party defendant's 29 Motion to Dismiss; granting 31 Motion for Summary Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 7/20/2012. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 11-2952(DSD/SER)
Matthew and Beth Solum and
Melvin Davy, Jr. and Jean Davy,
Plaintiffs,
ORDER
v.
The Board of County Commissioners
for the County of Houston, a
political subdivision within
the State of Minnesota in its
official capacity; Bob Scanlan,
Zoning Administrator, Houston
County, Minnesota, in both his
individual and official capacities;
Richard Frank, Director of the
Environmental Services Office,
Houston County, Minnesota, in
both his individual and
official capacities,
Defendants and ThirdParty Plaintiffs,
v.
Jared Solum,
Third-Party Defendant.
Karen Budd-Falen, Esq. and Budd-Falen Law Offices, P.O.
Box 346, Cheyenne, WY 82003 and Andrew D. Parker, Esq.
and Parker Rosen LLC, 300 First Avenue North, Suite 200,
Minneapolis, MN 55401, counsel for plaintiffs.
Jay T. Squires, Esq., Courtney R. Sebo, Esq. and Ratwik,
Roszak & Maloney, PA, 300 U.S. Trust Building, 730 Second
Avenue South, Minneapolis, MN 55402, counsel for
defendants.
This matter is before the court upon the motion to dismiss or,
in the alternative, the motion for summary judgment by defendants1
(collectively, Houston County), and the motion to dismiss the
third-party complaint by Jared Solum.
Based on a review of the
file, record and proceedings herein, and for the following reasons,
the court grants the motion for summary judgment.
BACKGROUND
This land-use dispute arises from defendants’ enforcement of
the Houston County zoning ordinance.
The court recites the facts
as they apply to each plaintiff.2
1
Defendants include the Board of County Commissioners for the
County of Houston; the Board of Adjustment for the County of
Houston, Minnesota; the Planning Commission for the County of
Houston,
Minnesota;
Bob
Scanlan,
Houston
County
Zoning
Administrator; and Richard Frank, Director of the Houston County
Environmental Services Office.
2
Multiple plaintiffs may join claims when they assert any
right to relief “arising out of the same transaction, occurrence,
or series of transactions or occurrences; and any question of law
or fact common to all plaintiffs will arise in the action.” Fed.
R. Civ. P. 20(a)(1). Rule 20 permits joinder of all reasonably
related claims and absolute identity of all events is unnecessary.
Mosely v. Gen. Motors Corp., 497 F.2d 1330, 1332 (8th Cir. 1974).
At oral argument, both parties agreed to the joinder of plaintiff
Solums’ and plaintiff Davys’ claims against Houston County. At
this early stage of the proceedings, the court agrees that joinder
will promote judicial efficiency. See Madison v. Hennepin Cnty.,
Civ. 02-4756, 2003 WL 21639176, at *1-2 (D. Minn. July 1, 2003).
2
Plaintiffs Matthew and Beth Solum
On November 3, 2005, Matthew and Beth Solum purchased a home
located on 8.36 acres of land from third-party defendant Jared
Solum.3
First Am. Compl. ¶ 25.
On December 5, 2005, Houston
County Zoning Administrator Bob Scanlan informed the Solums that
their
property
was
not
compliant
with
Houston
County
zoning
regulations. Id. ¶ 26. Specifically, the Solums were in violation
of Houston County ordinance § 0110.1303, subdivision 1(11), which
required a non-farm dwelling, located on Class III soils, to be
situated on at least forty contiguous acres of land.
Scanlan Aff.
¶¶ 10, 18.
The Solums applied for a conditional-use permit on June 28,
2007.
First Am. Compl. ¶ 27.
October 23, 2007.
Id.
Houston County denied the request on
On January 20, 2009, Houston County
informed the Solums that they had sixty days to comply with the
Houston County zoning ordinance (Compliance Notice).
3
Id. ¶ 29.
In November 2004, Jared Solum began construction of a nonfarm dwelling. Scanlan Aff. ¶ 13. Construction of the home was in
violation of Houston County ordinance § 0110.1303, subdivision
1(11), because the residence was not located on forty or more
continuous acres of land. After Houston County issued a stop-work
order, Jared Solum assembled forty continuous acres. Id. ¶ 16.
After finishing construction, Jared Solum sold approximately 8.36
acres of the assembled land, including the dwelling, to Matthew and
Beth Solum.
Id. ¶ 17.
As purchased, the property was not in
compliance with the Houston County zoning ordinance.
3
Options included razing the dwelling, relocating it roughly 50-100
feet to the next quarter-quarter section of land or assembling at
least forty contiguous acres of land.
Id.
The Solums applied for a use variance from the Houston County
Board of Adjustment on March 19, 2009, fifty-eight days after
receiving the Compliance Notice,.
Id. ¶ 33.
administratively denied on March 26, 2009.
The application was
Id. ¶ 34.
In response,
the Solums returned their deed to Jared Solum, the prior owner of
the property.
Id. ¶ 41.
Plaintiffs Melvin Davy Jr. and Jean Davy
In approximately 1984, the Davys constructed an outbuilding
apartment.4
Id. ¶ 52.
The mother of Melvin Davy Jr. lived in the
apartment until she moved to an assisted-living residence in Spring
2009.
Id.
¶
54.
Although
she
intended
to
return
to
the
outbuilding apartment, the Davys rented the apartment to a nonfamily member.
Id. ¶ 57.
On September 30, 2009, Houston County sent the Davys a ceaseand-desist letter demanding that they remove the renter and abstain
from using the apartment.
several supporters
Id. ¶ 58.
attended
meeting in September 2009.
the
In response, the Davys and
Houston
County
Commissioners’
Id. ¶ 59.
4
The Davys allege that Houston County has been aware of the
outbuilding since it was constructed in 1984. First Am. Compl.
¶ 52.
4
The Davys appealed the cease-and-desist decision on January
15, 2010.
Id. ¶ 61.5
the appeal.
The Houston County Planning Board rejected
Id. ¶ 64.
The Davys then appealed to the Houston
County Board of Appeals, and a public hearing was set for March 11,
2010.
Id. ¶¶ 65, 67.
Approximately fifty supporters attended the
meeting, many of whom, the Davys allege, were “belittled or cut
off” by the appeals board.
the appeal.
Id. ¶ 68.
The Board of Appeals denied
Id. ¶ 69.
On February 2, 2012, plaintiffs filed an amended complaint
alleging violations under 42 U.S.C. § 1983.
The Solums allege
violations of their procedural due process and equal protection
rights. The Davys allege violations of their free speech and equal
protection rights.
On February 2, 2012, Houston County filed a
third-party complaint against Jared Solum, seeking indemnity or
contribution
in
the
event
that
Matthew
and
Beth
successful in their claims against Houston County.
moves to dismiss the third-party complaint.
Solum
are
Jared Solum
Houston County moves
to dismiss plaintiffs’ claims or, in the alternative, for summary
judgment.
5
The first amended complaint does not contain a paragraph
sixty-one, but lists paragraph sixty-two twice.
The court
construes the first of these paragraphs to be paragraph sixty-one.
5
DISCUSSION
I.
Standard of Review
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ.
P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
See
id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
See id. at 255.
The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial.
Celotex, 477 U.S. at 324.
See
A party asserting that a genuine dispute
exists — or cannot exist — about a material fact must cite
“particular parts of materials in the record.”
56(c)(1)(A).
Fed. R. Civ. P.
If a plaintiff cannot support each essential element
of a claim, the court must grant summary judgment because a
complete
failure
of
proof
regarding
an
necessarily renders all other facts immaterial.
at 322-23.
6
essential
element
Celotex, 477 U.S.
II.
Procedural Due Process
No state shall “deprive any person of life, liberty, or
property, without due process of law.”
§ 1.
U.S. Const. amend. XIV,
“To prove a due process violation in a local land use
decision the plaintiff must identify a protected property interest
to which the Fourteenth Amendment’s due process protection applies,
and then demonstrate that the government action complained of is
truly irrational, that is something more than ... arbitrary,
capricious, or in violation of state law.”
Snaza v. City of St.
Paul, Minn., 548 F.3d 1178, 1182 (8th Cir. 2008) (citations and
internal quotation marks omitted).
is
a
matter
of
state
law
“A protected property interest
involving
a
legitimate
claim
entitlement as opposed to a mere subjective expectancy.”
to
Id. at
1182-83 (citation and internal quotation marks omitted).
The Solums argue a due process violation based on the refusal
of Houston County to forward the Solums’ use variance application
to the board of adjustment.
In support, they argue that the
Houston County decision was “‘so corrupted by the personal motives
of
local
government
implicated.’”
Pls.’
officials
Mem.
that
Opp’n
due
22-23
process
(quoting
rights
are
Bituminous
Materials, Inc. v. Rice Cnty., Minn., 126 F.3d 1068, 1071 (8th Cir.
1997)).
Plaintiffs’ reliance on Bituminous is misplaced.
First,
it was decided in the context of substantive, and not procedural,
due process.
Moreover, the Bituminous court explained that a
7
plaintiff cannot survive summary judgment by “alleging that a land
use
planning
decisionmaker
Bituminous, 126 F.3d at 1071.
does
not
like
the
plaintiff.”
Such an inquiry would “turn the
federal courts into zoning boards of appeal.”
Id.
Therefore, the
Solums have not established a protected property interest, and
summary judgement as to their procedural due process claim is
warranted.
Even assuming a protected property interest exists, summary
judgment is also warranted because the Solums failed to avail
themselves of the process afforded by Houston County.
“In the
zoning context ... procedural due process is afforded when the
landowner has notice of the proposed government action and an
opportunity to be heard.”
578 (8th Cir. 1993).
Anderson v. Douglas Cnty., 4 F.3d 574,
Here, however, the Solums did not appeal
Scanlan’s administrative decision denying their variance request.
And although the Houston County ordinance mandates referral of
administrative decisions to the board of adjustment, the Solums
also should have appealed the decision.
See Scanlan Aff. Ex. 1,
Section 0110.1104, subdiv. 2 (“Any aggrieved person ... objecting
to the ruling of any administrative official ... shall have the
right to appeal to the Board of Adjustment.
Such appeal may be
taken by any person aggrieved ....”); Minn. Stat. § 394.27, subdiv.
5 (“The board of adjustment shall have the authority to order the
issuance of variances, hear and decide appeals from and review any
8
order,
requirement,
administrative
decision,
ordinance ....”).
determination
charged
official
or
with
made
by
enforcing
any
any
The Solums “cannot complain of a violation of
procedural due process when [they have] not availed [themselves] of
existing procedures.”
Anderson, 4 F.3d at 578.
The Solums argue, however, that they were not required to
exhaust
administrative
remedies
prior
to
bringing
suit.
Specifically, the Solums explain that they were not required to
exhaust their available postdeprivation remedies, since they were
entitled to, but did not receive, predeprivation process.
Pls.’
Mem. Opp’n 24 (citing Keating v. Neb. Pub. Power Dist., 562 F.3d
923, 928 (8th Cir. 2009)).
The Solums argument is unpersuasive.
They were initially notified of their noncompliance on December 5,
2005.
More than three years later, on January 20, 2009, Houston
County provided the Solums an additional sixty days to comply with
the zoning ordinance.
In response, the Solums waited another
fifty-eight days to file a use variance application. Any delay was
self-inflicted,
and
the
Solums
are
not
requirement to exhaust administrate remedies.
excused
from
their
See Wax’n Works v.
City of St. Paul, 213 F.3d 1016, 1019 (8th Cir. 2000) (“Under
federal law, a litigant asserting a deprivation of procedural due
process must exhaust state remedies before such an allegation
9
states a claim ....”).
Therefore, for this additional reason,
summary judgment is warranted as to the Solums’ procedural due
process claim.
III.
Equal Protection
Plaintiffs next allege class-of-one equal protection claims.
In a class-of-one claim, the plaintiff seeks protection “against
intentional and arbitrary discrimination, whether occasioned by
express terms of a statute or by its improper execution through
duly constituted agents.”
884
(8th
Cir.
2005)
Barstad v. Murray Cnty., 420 F.3d 880,
(citation
and
internal
quotation
marks
omitted); see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000) (per curiam) (“A cause of action on behalf of a ‘class of
one’ [arises] where the plaintiff did not allege membership in a
class or a group.”).
To state a class-of-one claim, plaintiffs
must show that a defendant intentionally treated them differently
from others who are similarly situated and that no rational basis
existed for the dissimilar treatment.
See Mathers v. Wright, 636
F.3d 396, 399-400 (8th Cir. 2011) (citations omitted).
A.
Solums
The Solums allege an equal protection violation based on
Houston County’s refusal to forward their variance application to
the board of adjustment.6
First Am. Compl. ¶ 78.
6
To succeed in
The Solums allege that they were treated “differently than
other similarly situated individuals.” First Am. Compl. ¶ 78. The
(continued...)
10
their
claim,
the
Solums
must
show
that
they
were
“treated
differently than other persons who were in all relevant respects
similarly situated.”
Flowers v. City of Minneapolis, Minn., 558
F.3d 794, 798 (8th Cir. 2009) (citation omitted).
The Solums
identify twelve property owners they allege are similarly situated.
See Squires Aff. Exs. 9, 10.
In response, Houston County argues
that the property owners are not similarly situated. Specifically,
Houston
County
argues
that
none
of
these
submitted applications for use variances.
twelve
individuals
See Scanlan Aff. ¶¶ 25-
35 (noting that landowners requested area variance or conditional
use permit); id. ¶ 20 (explaining that application for use variance
has never previously been received).
Minnesota differentiates between conditional-use permits and
use
and
area
variances.
For
example,
“variances
are
distinguishable from special-or conditional-use permits, which
generally should be granted when an applicant meets the conditions
6
(...continued)
defendants argue that this “naked assertion[]” fails to state a
claim under Rule 12(b)(6).
Defs.’ Mem. Supp. 19.
The Solums
respond that “the lead case on this issue” allowed an equal
protection claim to proceed based on plaintiff’s allegation of
being treated differently that “other similarly situated property
owners.”
Vill. of Willowbrook, 528 U.S. at 565.
Reliance on
Village of Willowbrook, which was decided prior to Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 556 (2007), is misplaced.
See
Palmore v. City of Pac., No. 4:09CV1073SNLJ, 2010 WL 1221912, at *5
(E.D. Mo. Mar. 30, 2010) (dismissing equal protection claim where
plaintiff made “the broad, speculative assertion that ‘others’ were
treated more favorably”). Therefore, plaintiff fails to state a
claim, and dismissal is warranted.
11
specified in the ordinance.”
Benton,
617
omitted).
N.W.2d
85,
90
Kismet Investors, Inc. v. Cnty. of
(Minn.
Ct.
App.
2000)
(citations
Conversely, a local board of adjustment has broad
discretion to grant or deny a variance.
See Krummenacher v. City
of Minnetonka, 783 N.W.2d 721, 727 (Minn. 2010) (citation and
internal quotation marks omitted). Further, use and area variances
are distinguishable.
“A use variance permits a use or development
of land other than that prescribed by zoning regulations.”
Appeal of Kenney, 374 N.W.2d 271, 274 (Minn. 1985).
In re
An area
variance, on the other hand, controls “lot restrictions such as
area, height, setback, density, and parking requirements.” Id. In
other words, “unlike use variances, area variances do not change
the character of the zoned district.”
In re Stadsvold, 754 N.W.2d
323, 329 (Minn. 2008) (citation and internal quotation marks
omitted).
Given the dissimilar nature of conditional-use permits
and area and use variances, the Solums have not shown that they
were
treated
differently
than
similarly
situated
landowners.
Therefore, summary judgment is warranted as to the Solums’ equal
protection claim.
Even assuming that the twelve other landowners were similarly
situated, summary judgment is also warranted because Houston County
had a rational basis to treat area and use variances differently.
“In Minnesota, the authority of a county board of adjustment to
grant a use variance is limited by statute: ‘No variance may be
12
granted that would allow any use that is prohibited in the zoning
district in which the subject property is located.’” Id. (citation
omitted)
(quoting
Minn.
Stat.
§
394.24,
subdiv.
7).
This
distinction yields differing standards for area and use variance.
“[T]he
‘practical
difficulties’
standard
is
the
appropriate
standard to apply to area variances and the ‘particular hardship’
standard is the appropriate standard to apply to use variances.”
Id.
As such, Houston County had a rational basis for treating the
Solums’
use
variance
differently
from
prior
area
variances.
See Stiles v. Blunt, 912 F.2d 260, 267 (8th Cir. 1990) (explaining
that under rational relationship review, the court does not need to
determine “whether or not [the reasons articulated for dissimilar
treatment] were actually considered”); see also Bd. of Trs. v.
Garrett, 531 U.S. 356, 367 (2001) (“Governmental action only fails
rational basis scrutiny if no sound reason for the action can be
hypothesized.”).
Therefore, for this additional reason, summary
judgment as to the Solums’ equal protection claim is warranted.
B.
Davys
The Davys argue that Houston County selectively enforced the
Houston County zoning ordinance.
Specifically, the Davys argue
that they were singled out based on their exercise of free speech
in support of personal-property rights.7
7
Selective enforcement of
The Davys allege a First Amendment, freedom from retaliation
claim under the guise of equal protection. Although Houston County
(continued...)
13
the law is prohibited by the Equal Protection clause.
States v. Coney, 456 F.3d 850, 856 n.4 (8th Cir. 2006).
United
A class-
of-one selective enforcement claim requires plaintiffs to prove
that they were “intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference in treatment.”
Flowers, 558 F.3d at 799 (citation and
internal quotation marks omitted).
Houston County argues, however, that a class-of-one claim is
inappropriate
when,
as
here,
discretionary decisionmaking.
one
theory
[is]
a
‘poor
state
action
involves
The court agrees that a “class-of-
fit’
discretionary decisionmaking.”
the
in
Id.
a
context
that
involve[s]
For example, some forms of
state action “by their nature involve discretionary decisionmaking
based on a vast array of subjective, individualized assessments.
7
(...continued)
does not object, such a claim is improper. The Eighth Circuit has
yet to address the issue, but other courts explain that “claims
based on the allegation that [plaintiff] was treated differently in
retaliation for his speech are, at their core, free-speech
retaliation claims that do not implicate the Equal Protection
Clause.” Kirby v. City of Elizabeth City, N.C., 388 F.3d 440, 447
(4th Cir. 2004) (citation and internal quotation marks omitted);
see Boyd v. Ill. State Police, 384 F.3d 888, 898 (7th Cir. 2004)
(“[T]he right to be free from retaliation may be vindicated under
the First Amendment ..., but not the equal protection clause.”);
Watkins v. Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997) (same);
Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996) (same).
Houston County does argue, however, that the Davys’ allegation
that they were treated differently than “other” landowners is
insufficient to state a claim. First Am. Compl. ¶¶ 70, 84. The
court agrees that such a claim does not survive Twombly, but
addresses the Davys’ claim on the merits, nonetheless.
14
In such cases the rule that people should be ‘treated alike, under
like circumstances and conditions’ is not violated when one person
is treated differently from others ....”
Engquist v. Or. Dep’t of
Agric., 553 U.S. 591, 603 (2008); see Flowers, 558 F.3d at 800
(“[A] police officers investigative decisions ... may not be
attacked
in a class-of-one equal protection claim.”).
Minnesota
“[m]unicipalities have
broad
discretionary
considering whether to grant or deny a variance.”
In
power in
Krummenacher,
783 N.W.2d at 727 (Minn. 2010) (citation and internal quotation
marks omitted).
Therefore, a class-of-one claim is improper, and
summary judgment is warranted.
Even assuming that the Davys could assert a class-of-one equal
protection claim, summary judgment is also warranted because the
Davys fail to identify similarly situated individuals.
The Davys
live in a single-family farm dwelling on forty or more contiguous
acres.
Scanlan Aff. ¶ 53.
Also located on the same quarter-
quarter section is a manufactured home, considered a temporary farm
dwelling.
Id.
The Davy’s third dwelling, in the same quarter-
quarter section, is the outbuilding apartment.
Davys,
however,
have
identified
no
Id. ¶ 54.
properties
with
The
three
residential structure in the same quarter-quarter section of land.
See id. ¶¶ 55-61; Third Scanlan Aff. ¶¶ 4-6.
15
Therefore, the Davys
have
not
shown
dissimilar
treatment
of
similarly
situated
individuals, and, for this additional reason, summary judgment is
warranted.
IV.
First Amendment
The Davys next argue that Houston County selectively enforced
the Houston County ordinance in retaliation for their support of
personal-property
Amendment
individual
rights.
prohibits
to
“[A]s
government
retaliatory
a
general
officials
actions
constitutionally protected speech.”
...
on
matter
from
the
the
First
subjecting
basis
of
an
his
Osborne v. Grussing, 477 F.3d
1002, 1005 (8th Cir. 2007) (quoting Hartman v. Moore, 547 U.S. 250,
256 (2006)).
To state a claim, plaintiff must show that “he has
been singled out for prosecution while others similarly situated
have not been prosecuted for conduct similar to that for which he
was prosecuted [and] that the government’s discriminatory selection
of him for prosecution was based upon ... his exercise of his First
Amendment right to free speech.”
Id. at 1006 (alteration in
original) (citation omitted).
The Davys allege three instances of retaliation: (1) the
requirement to place a new mobile home in a location other then
where
they
planned,
(2)
failure
to
timely
complete
septic
inspections for the mobile home (3) and prohibiting rental of the
outbuilding apartment.
As to the former two instances, Houston
County argues that its action could not be retaliatory, because it
16
was unaware of the Davys’ alleged vocal support of property rights
in 2007 when they placed the mobile home on their property.
Scanlan Aff. ¶ 42.
The Davys explain, however, that they did not
place the mobile home on their property until 2009, well after the
county became aware of their support of personal-property rights.
Joint Davy Aff. ¶ 11.
A factual dispute remains regrading when the
mobile home was placed on the Davys’ property, but the court need
not answer this question.
The Davys’ responsive brief did not
address the mobile home and subsequent septic inspection, and these
arguments are waived. See Olson v. Int’l Bus. Machs., No. Civ. 05118, 2006 WL 503291, at *14 (D. Minn. 2006) (concluding that
plaintiff abandoned claim after not addressing it in responsive
brief).
As to the outbuilding apartment, there is no evidence that
Houston County selectively enforced the zoning ordinance.
already
discussed,
situated properties.
the
Davys
fail
to
identify
any
As
similarly
Moreover, Scanlan testified that he was
unaware of any alleged non-conforming use on the properties that
the Davys’ claim are similarly situated.
Scanlan Aff. ¶ 62. As in
Osborne, Houston County has a policy of investigating and enforcing
the zoning ordinance when it becomes aware of a violation.
Id.
¶
the
63;
Osborne,
477
F.3d
1006.
Here,
however,
even
if
properties were similarly situated, there is no evidence that
Houston County was aware of the properties and failed “to take
17
similar enforcement actions.”
Therefore,
the
Davys
cannot
See Osborne, 477 F.3d at 1008.
demonstrate
that
Houston
County
selectively enforced the zoning ordinance in retaliation for their
protected
speech,
and
summary
judgment
as
to
this
claim
is
warranted.8
V.
Section 1983
A § 1983 claim requires a “(1) violation of a constitutional
right, (2) committed by a state actor, (3) who acted with the
requisite culpability and causation to violate the constitutional
right.” Cox v. Sugg, 484 F.3d 1062, 1066 (8th Cir. 2007) (citation
omitted).
As already explained, plaintiffs have not demonstrated
a violation of a constitutional right.
Therefore, these claims
fail, and summary judgment is warranted.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.
Defendants’ motion for summary judgment [ECF No. 31] is
granted; and
8
The Davys do not argue in their opposition brief that their
free speech rights were chilled by Houston County officials. See
First Am. Compl. ¶¶ 59, 68, 85. Therefore, the court considers
these arguments waived. See Olson, 2006 WL 503291, at *14.
18
2.
Third-party defendant’s motion to dismiss [ECF No. 29] is
denied as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:
July 20, 2012
s/David S. Doty
David S. Doty, Judge
United States District Court
19
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