Chaney et al v. City of Ocean Springs, Mississippi et al

Filing 49

ORDER granting in part and denying in part Defendant City of Ocean Springs, Mississippi's 13 Motion to Dismiss All Claims Brought Under § 1983. Signed by District Judge Halil S. Ozerden on March 12, 2019. (ENW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
COREY J. CHANEY and
MIRANDA L. CHANEY
v.
CITY OF OCEAN SPRINGS,
MISSISSIPPI

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PLAINTIFFS
Civil Action No. 1:18cv30-HSO-JCG

DEFENDANT

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART DEFENDANT CITY
OF OCEAN SPRINGS, MISSISSIPPI’S [13] MOTION TO DISMISS
ALL CLAIMS BROUGHT UNDER § 1983
BEFORE THE COURT is the Motion [13] to Dismiss All Claims Brought
Under § 1983 filed by Defendant City of Ocean Springs, Mississippi. After due
consideration of the Motion, the related pleadings, the record, and relevant legal
authority, the Court finds that the City’s Motion [13] to Dismiss should be granted
in part and denied in part and that Plaintiffs’ equal protection claim should be
dismissed with prejudice.
I. BACKGROUND
A.

Factual background
This action arises out of Plaintiffs Corey J. Chaney and Miranda L. Chaney’s

(“Plaintiffs”) purchase and attempted development of certain real property located
within the city limits of Defendant City of Ocean Springs, Mississippi (the “City”).
See 1st Am. Compl. [8] at 2. On August 15, 2016, Plaintiffs purchased a single
parcel of property comprised of what had been known as Lot 16 and the south half

of Lot 171 in the City’s Cherokee Cove Subdivision. Id. at 2. Plaintiffs apparently
intended to renovate an existing structure on Lot 17, subdivide the parcel, and then
sell the two resulting parcels, Lot 16 and the south half of Lot 17, separately. Id. at
2-3. According to Plaintiffs, before their lender, First Federal, would give final
approval to the construction financing, it requested and received confirmation from
the City that the south half of Lot 17 qualified as a “legal lot.” Id. at 3. The City
allegedly confirmed that both reconfigured lots would be buildable lots that could be
sold and developed separately, as long as Lot 17 received an additional 7.3 feet from
Lot 16. Based on this confirmation, First Federal approved construction financing
for Plaintiffs’ project on Lot 17. Id.
The City issued a building permit on March 13, 2017, and construction to
renovate the existing structure on Lot 17 began on May 13, 2017. Id. at 5.
According to Plaintiff, beginning on June 1, 2017, neighboring landowners engaged
in a pattern of harassment directed at Plaintiffs, including vandalizing their
property. Id. On June 27, 2017, “unidentified neighbors,” whom Plaintiffs believe
“were motivated by racism and their desire to keep a mixed race couple from
moving into the neighborhood,” had an attorney draft a letter and send it to the

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Lot 17 was split in 1983. See 1st Am. Compl. [8] at 3. A City ordinance was
subsequently adopted in 1985 that apparently prevents adjoining, nonconforming lots from
being individually sold or used for a single family dwelling, unless the lots were owned
separately in 1985. See id. at 2, 8-9; July 27, 2017, Letter [8-7] at 1 (letter from City citing
its zoning ordinance Section 401.4.6(1)). Plaintiffs contend that their Lots 16 and 17 are
exempt from this 1985 ordinance. See 1st Am. Compl. [8] at 2. In a July 27, 2017, letter to
Mr. Chaney, the City opined that Lot 16 and the portion of Lot 17 acquired by Plaintiffs
could not be developed independently under Section 401.4.6 of the City’s zoning ordinances.
See July 27, 2017, Letter [8-7] at 1.

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City. Id. The letter referenced the City’s approval of what these residents referred
to as an “illegal lot split/reconfiguration” and an “illegal/void building permit
concerning the subject property.” Id. at 5-6. The residents asked the City to
“pull/revoke the illegal building permit, and overturn or withdraw the purported lot
split . . . .” Id.
Plaintiffs allege that the day the City received the letter, a building official
called Plaintiffs’ architect asking to speak with them. Id. at 6. That same day, the
City’s Planning and Grants Administrator, Carolyn Martin (“Martin”), left a
voicemail for Plaintiffs stating that “she had made an error in her interpretation of
the code” and that “she had failed to consider and/or was unaware of the statutes
which applied to [Plaintiffs’] property.” Id. Plaintiffs assert that, without providing
notice or an opportunity to be heard, the City then issued a Stop Work Order on
July 5, 2017, and delivered to the Jackson County, Mississppi, Chancery Clerk a
document entitled “Rescind: Parcel Boundary Reconfiguration.” Id. at 7. On July
11, 2017, this document was recorded in the office of the Chancery Clerk of Jackson
County, ostensibly restoring the parcels to their original configuration. Id. at 8.
When Plaintiffs contacted First Federal on July 7, 2017, to inform it of these
developments, First Federal had already learned of them and had frozen Plaintiffs’
account. Id. Plaintiffs infer that this indicates someone contacted their lender for
the purpose of intentionally interfering with their building project. Id.
On July 27, 2017, the City sent Plaintiffs a letter setting forth its position
that construction could continue on what had been known as Lot 17, but only

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subject to relevant codes and ordinances. Id. This included certain set-back
provisions, but the City recognized that the home being built might already be
violating this provision. Id. The City’s letter also stated that any plans to sell a
portion of the parcel that had previously been known as Lot 16 would violate the
relevant zoning ordinance, and that such a sale would not be possible. Id.
Plaintiffs claim that a City building official then contacted their architect and
informed him that the official would discuss the matter at a “board meeting” that
evening; however, Plaintiffs were never informed this communication occurred. Id.
at 9. Plaintiffs posit that the City and its Planning and Grants Administrator
Martin contacted the architect in an attempt to reconfigure the project, and
intentionally conducted meetings outside Plaintiffs’ presence in an effort to do so.
Id.
First Federal discontinued funding the Lot 17 renovation project, which
caused all construction to halt. Id. “As a result of the intentional actions of Ocean
Springs and its policy maker Martin and to the detriment of [Plaintiffs], the
collateral of Charter, Lot 16, was rendered worthless.” Id. Plaintiffs claim that
they have now been sued by their contractor for over $70,000.00. Id.
B.

Procedural history
Plaintiffs filed a Complaint [1] against the City in this Court on January 30,

2018, followed by a First Amended Complaint [8] on March 16, 2018. The First
Amended Complaint advances federal constitutional claims pursuant to 42 U.S.C. §
1983 for alleged violations of Plaintiffs’ equal protection, procedural due process,

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and substantive due process rights, and a claim for a wrongful taking of property
without just compensation. The First Amended Complaint also raises claims under
state law for tortious interference with contractual relations, negligent
misrepresentation, and negligence. 1st Am. Compl. [8] at 9-13. Plaintiffs seek an
award of compensatory damages, attorneys’ fees, expenses, and prejudgment
interest. Id. at 14.
The City has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to
dismiss all claims Plaintiffs are asserting against it under 42 U.S.C. § 1983. City’s
Mot. [13] at 1. The City posits that Plaintiffs’ § 1983 claims should be dismissed
because they “have made no allegations of a policy or custom of the City’s that was
a motivating factor behind any alleged constitutional violations,” and because their
“takings claim is not ripe, as Plaintiffs have failed to pursue the matter under
available state remedies.” City’s Mem. [14] at 1-2. The City argues that Plaintiffs’
procedural due process claim fails because they “made no effort to avail themselves
of local and state procedures readily available.” Id. For this reason, “the
substantive due process claims should be dismissed as premature in that the
procedural due process claim based on alleged deprivation of the same right is not
properly before the Court.” Id. Upon dismissal of the § 1983 claims, the City
maintains that this case should be dismissed in its entirety for lack of federal
subject-matter jurisdiction. Id. at 2.
Plaintiffs respond that they “have pled enough facts to state a claim that is
plausible on its face,” Pls.’ Resp. [17] at 1, including the existence of an official

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policy with a direct causal connection to a constitutional deprivation, id. at 3. “The
facts as pled by Plaintiffs, and which must be taken as true, establish that a
decision adverse to Plaintiffs’ constitutional rights was made and officially adopted
and promulgated by an official of Defendant (Carolyn Martin) to whom Defendant
delegated policy-making authority . . . .” Id. at 5. Plaintiffs, who are represented by
counsel, have not sought leave to amend their pleadings in the event the Court
finds that the First Amended Complaint fails to state a § 1983 claim.
II. DISCUSSION
A.

Rule 12(b)(6) standard
To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
A “plaintiff’s factual allegations must support a claim to relief that is
plausible on its face and rises above mere speculation.” United States ex rel. Steury
v. Cardinal Health, Inc., 625 F.3d 262, 266 (5th Cir. 2010). “[A] complaint may
proceed even if ‘recovery is very remote and unlikely,’ so long as the alleged facts
‘raise a right to relief above the speculative level.’” Littell v. Houston Indep. Sch.
Dist., 894 F.3d 616, 622 (5th Cir. 2018) (quoting Twombly, 550 U.S. at 555–56).

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In determining whether a complaint states a valid claim for relief, a court
must accept all well-pleaded facts as true and construe the complaint in the light
most favorable to the plaintiff. In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d
201, 210 (5th Cir. 2010). While a court must “take factual allegations as true at the
Federal Rule of Civil Procedure 12(b)(6) stage, ‘[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.’”
Rountree v. Dyson, 892 F.3d 681, 685 (5th Cir. 2018) (quoting Iqbal, 556 U.S. at
678).
B.

Municipal liability under § 1983
42 U.S.C. § 1983 requires a showing that a defendant deprived the plaintiff of

his or her constitutional rights and did so while acting under color of state law.
Moody v. Farrell, 868 F.3d 348, 351 (5th Cir. 2017). “[A] municipality cannot be
held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc.
Servs. of City of New York, 436 U.S. 658, 691 (1978). Plaintiffs seeking to impose
liability on local governments under § 1983 must show that “‘action pursuant to
official municipal policy’ caused their injury.” Connick v. Thompson, 563 U.S. 51,
60 (2011) (quoting Monell, 436 U.S. at 691). To state a claim for municipal liability
under § 1983, a plaintiff “must allege sufficient factual content to permit the
reasonable inference (1) that a constitutional violation occurred and (2) that an
‘official policy’ attributable to the [municipality’s] policymakers (3) ‘was the moving
force’ behind it.” Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d
849, 866 (5th Cir. 2012).

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“Official municipal policy includes the decisions of a government’s
lawmakers, the acts of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.” Connick, 563 U.S. at 61. “In
rare circumstances, a single unconstitutional action may be sufficient to impose
municipal liability if undertaken by the municipal official or entity possessing final
policymaking authority for the action in question.” Davidson v. City of Stafford,
Texas, 848 F.3d 384, 395 (5th Cir. 2017), as revised (Mar. 31, 2017) (quotation
omitted); see also Advanced Tech. Bldg. Sols., L.L.C. v. City of Jackson, Miss., 817
F.3d 163, 165 (5th Cir. 2016).
C.

The City’s arguments
1.

Absence of an official policy or custom

The City argues that it cannot be held liable under § 1983 because Plaintiffs
have not sufficiently pleaded the existence of an official policy or custom that was
the moving force behind any constitutional violation. See City’s Mem. [14] at 4;
City’s Reply [18] at 1-3. Plaintiffs insist that they have done so and rely upon the
actions of Carolyn Martin, whom they posit qualified as a policymaker for the City.
See Pls.’ Resp. [17] at 4-5. The First Amended Complaint specifically alleges that
Martin was a policymaker for the City and that her actions violated Plaintiffs’
constitutional rights. See, e.g., 1st Am. Compl. [8] at 7, 9. The City has not argued
that Martin was not a policymaker, and it did not specifically address this question
in its Reply [18].

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The City further argues that the Parratt/Hudson2 doctrine applies
and that “Plaintiffs have not alleged that the revocation of their building permit
was caused by anything other than the acts of individual employees.” City’s Mem.
[14] at 9. For this reason, it cannot be held accountable for an unauthorized,
intentional deprivation of property by an employee, particularly where a
meaningful post-deprivation remedy for the loss was available. Id. (citing Hudson v.
Palmer, 468 U.S. 517, 533 (1984)). “Under the Parratt/Hudson doctrine, ‘a
deprivation of a constitutionally protected property interest caused by a state
employee’s random, unauthorized conduct does not give rise to a § 1983 procedural
due process claim, unless the State fails to provide an adequate postdeprivation
remedy.’” Allen v. Thomas, 388 F.3d 147, 149 (5th Cir. 2004) (quoting Zinermon v.
Burch, 494 U.S. 113, 115 (1990)). However, the Fifth Circuit has held that conduct
is not “random and unauthorized” if a state has delegated to its employees or
officials the power and authority to effect the very deprivation complained of. Id.
(quoting Zinermon, 494 U.S. at 138).
The First Amended Complaint asserts that Martin qualified as a policymaker
for the City, and the City has not yet adequately rebutted this allegation. When an
ultimate policymaker in a specific area takes action in that area, her conduct may
generally be construed to constitute a custom or policy of the municipality. See
Woodward v. Andrus, 419 F.3d 348, 353 (5th Cir. 2005). The Parratt/Hudson

2

Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v. Taylor, 451 U.S. 527 (1981),
overruled in part by Daniels v. Williams, 474 U.S. 327, 330-31 (1986).

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doctrine does not apply in such situations. See id. Based upon the present record,
the City has not shown that dismissal on this basis is warranted.
3.

Failure to show the violation of a constitutional right

The City also seeks dismissal of the § 1983 claims on their merits, arguing
that Plaintiffs cannot show the violation of a constitutional right.
a.

Equal protection claim

The City takes the position that Plaintiffs have failed to state an equal
protection claim, because they have advanced only conclusory allegations or legal
conclusions to support it. See City’s Mem. [14] at 5-7. The First Amended
Complaint alleges that the City “attempted to enforce its zoning decision selectively
in violation of the Equal Protection Clause for improper reasons, including but not
limited to racially discriminatory reasons and the desire to prevent the Chaneys
from the exercise their constitutionally protected property rights.” 1st Am. Compl.
[8] at 10.
The Fourteenth Amendment to the United States Constitution provides in
relevant part that no State shall “deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV. This provision “prohibits
selective enforcement of the law based on considerations such as race.” Whren v.
United States, 517 U.S. 806, 813 (1996). To establish a violation of the Equal
Protection Clause, a plaintiff “must prove purposeful discrimination resulting in a
discriminatory effect among persons similarly situated.” Butts v. Martin, 877 F.3d
571, 590 (5th Cir. 2017) (quotation omitted). The Equal Protection Clause is

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violated only by intentional discrimination and occurs when “the decisionmaker
singled out a particular group for disparate treatment and selected his course of
action at least in part for the purpose of causing its adverse effect on an identifiable
group . . . .” Lavernia v. Lynaugh, 845 F.2d 493, 496 (5th Cir. 1988) (quotation
omitted) (emphasis in original). “The essence of an equal protection claim is that
other persons similarly situated as is the claimant unfairly enjoy benefits that he
does not or escape burdens to which he is subjected.” United States v. Cronn, 717
F.2d 164, 169 (5th Cir. 1983).
The First Amended Complaint alleges that Plaintiffs’ neighbors were
motivated by discriminatory animus to complain to the City about the issuance of
the building permit, but there is no explicit factual allegation that the City itself
was aware of the intent behind the neighbors’ complaints, or that these neighbors
actually communicated their discriminatory intent to anyone with the City when
they voiced their objections to the project. Plaintiffs have attached to the First
Amended Complaint [8] a letter [8-4] from an attorney written “on behalf of
property owners” in the subdivision in which Plaintiffs’ property is located. See
Letter [8-4] at 1-5. The letter references legal authority, argues that the approval of
the lot split or reconfiguration and the issuance of the building permit were illegal
or void, and asks the City to immediately suspend and ultimately revoke “the illegal
permit.” See id. A plain reading of this letter reveals no hint that any
discriminatory intent behind the property owners’ actions was communicated to the
City. See id.

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The First Amended Complaint contains insufficient factual detail from which
one could plausibly conclude that any decisionmaker for the City was motivated, at
least in part, by discriminatory animus for the purpose of causing an adverse effect
on an identifiable group. While the First Amended Complaint contains a conclusory
assertion that the City selectively enforced its zoning ordinances in a discriminatory
fashion, see 1st Am. Compl. [8] at 10, Plaintiffs have not alleged any specific facts
from which one could plausibly conclude that whatever discriminatory intent may
have motivated Plaintiffs’ neighbors was ever conveyed to the City. Nor does the
First Amended Complaint identify a comparator against whom the same or similar
zoning ordinance was not enforced. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, are insufficient to survive a
Rule 12(b)(6) motion. See Rountree, 892 F.3d at 685. The First Amended
Complaint fails to state a claim for a violation of the Equal Protection Clause, and
the City’s Motion to Dismiss will be granted as to this claim.
b.

Plaintiffs’ substantive due process claim

The First Amended Complaint alleges that Plaintiffs
had a property interest in the building permit issued to them by Ocean
Springs and after relying upon the permit and expending hundreds of
thousands of dollars it was wrongfully taken from them. The actions of
Ocean Springs were oppressive and amount to an abuse of power which
shocks the conscience.
1st Am. Compl. [8] at 11. The City takes the position that Plaintiffs’ substantive
due process claim should be dismissed because they have not shown a legitimate
entitlement to a protected property interest. City’s Mem. [14] at 12. The City

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further maintains that this claim is premature and should be dismissed. Id. at 13.
Plaintiffs respond that they “are asserting a property interest in the building
permit.” Pls.’ Mem. [17] at 10.
The substantive due process component of the Fourteenth Amendment
provides that no state shall “deprive any person of life, liberty, or property, without
due process of law.” U.S. Const. amend. XIV, § 1. “To prevail on a substantive due
process claim, [a plaintiff] must first establish that it held a constitutionally
protected property right to which the Fourteenth Amendment’s due process
protection applies.” Simi Inv. Co. v. Harris Cnty., 236 F.3d 240, 249-50 (5th Cir.
2000). The nature of a property interest is determined according to state law. Id.
at 250. If a court is persuaded that the government’s action implicates a
constitutionally protected property right, it must next determine the appropriate
standard of review. Reyes v. N. Texas Tollway Auth., 861 F.3d 558, 561 (5th Cir.
2017) (discussing rational basis review and “shocks the conscience” test).
(i)

The nature of Plaintiffs’ asserted property interest

“Property interests are not created by the Constitution; rather, they stem
from independent sources such as state statutes, local ordinances, existing rules,
contractual provisions, or mutually explicit understandings.” Blackburn v. City of
Marshall, 42 F.3d 925, 936-37 (5th Cir. 1995). In order to come within the purview
of the Fourteenth Amendment, a person must have “more than an abstract need or
desire for” the property interest and “more than a unilateral expectation of it.”
Id. at 936. Instead, a plaintiff must “have a legitimate claim of entitlement” to the

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property interest. Id. Protected property interests are those “that rise to the level
of a legitimate claim of entitlement” and not “mere expectations.” Walsh v. La.
High Sch. Athletic Ass’n, 616 F.2d 152, 159 (5th Cir. 1980) (quotation omitted).
Plaintiffs allege that they enjoyed a protected property interest in the
building permit that the City had issued to them, which allowed them to begin
construction, and that the City later revoked this permit. See 1st Am. Compl. [8] at
11. In support of its request for dismissal, the City cites only general legal
authority addressing protected property rights under the Fourteenth Amendment.
No reference is made to any Mississippi statutes, case authority, or local ordinances
pertaining to the specific question of whether the revocation of a previously-issued
building permit implicates a protected property interest under state law. See City’s
Mem. [14] at 12-13.3 The revocation of a building permit arguably presents a
different question than the initial denial of one, and the City has not addressed this
issue. Under the Rule 12(b)(6) standard applicable at this stage of the case, the
City has not shown that Plaintiffs have failed to sufficiently plead a substantive due
process claim with respect to the revocation of their building permit.
(ii)

Whether the substantive due process claim is premature

The City contends that Plaintiffs’ substantive due process claim is premature
because their procedural due process claim cannot be maintained. See City’s Mem.
3

See also Bush v. City of Gulfport, Miss., 454 F. App’x 270, 276 (5th Cir. 2011)
(assuming without deciding at summary judgment stage that applicant had property
interest in building permit); Vineyard Investments, L.L.C. v. The City of Madison, Miss., 440
F. App’x 310, 314 (5th Cir. 2011) (same).

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[14] at 13-14. Because the Court will deny the City’s Motion to Dismiss the
procedural due process claim, and because the City has advanced no other grounds
for dismissal of the substantive due process claim, its Motion to Dismiss will be
denied as to this claim.
c.

Takings and procedural due process claims

The essence of Plaintiffs’ takings claim is their allegation that their Fifth
Amendment rights “were violated when Ocean Springs revoked the previously
issued building permit and boundary reconfiguration and deprived them of the use
of their property without compensation.” 1st Am. Compl. [8] at 11. Plaintiffs claim
that the City violated their procedural due process rights by “intentionally revoking
the building permit from the Chaneys . . . without providing notice and an
opportunity to be heard,” and that there were “no pre or post deprivation remedies .
. . available to them.” Id. at 10.
The City argues that Plaintiffs’ takings claim is not ripe and should be
dismissed because Plaintiffs: (1) have failed to establish that the City had reached
its final decision on this matter; and (2) failed to obtain relief and compensation
under ordinances of the City or the laws of the State of Mississippi. See City’s
Mem. [14] at 7-8; City’s Reply [18] at 5-6. As to the procedural due process claim,
the City argues that adequate process was available to remedy any deprivation
under the laws of the City and the State, but that Plaintiffs failed to avail
themselves of those remedies. See City’s Mem. [14] at 8. According to the City,
“Plaintiffs have asserted no facts demonstrating the inadequacy of the City and/or

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State remedies available, but simply refused to utilize them.” Id. at 10. For this
reason, Plaintiffs’ procedural due process claim should be dismissed for failure to
exhaust available administrative remedies. The City further maintains that
“Plaintiffs’ procedural due process cause of action should also be dismissed because
it is ancillary to the wrongful taking claim, which should be dismissed . . . .” Id. at
11.
Plaintiffs counter that neither Mississippi’s inverse condemnation procedure
nor any local ordinances are capable of providing “just compensation” for this
alleged taking, leaving this lawsuit as their only available remedy. Pls.’ Resp. [17]
at 7. As for procedural due process, Plaintiffs maintain that they have adequately
pled such a claim and argue that their claim is not ancillary to their takings claim.
Id. at 8-10.
The Takings Clause of the Fifth Amendment provides that private property
shall not “be taken for public use, without just compensation,” U.S. Const. amend.
V, and is made applicable to the states through the Fourteenth Amendment, see
Urban Developers LLC v. City of Jackson, Miss., 468 F.3d 281, 292 (5th Cir. 2006).
To prevail on a takings claim, a plaintiff must demonstrate that he or she has a
protectable property right and that the right has actually been taken. United States
v. 0.073 Acres of Land, More or Less, Situated in Pars. of Orleans & Jefferson,
Louisiana, 705 F.3d 540, 545 (5th Cir. 2013); Dennis Melancon, Inc. v. City of New
Orleans, 703 F.3d 262, 269 (5th Cir. 2012).
The Due Process Clause of the Fourteenth Amendment encompasses a

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guarantee of fair procedure. Zinermon v. Burch, 494 U.S. 113, 125 (1990). The
deprivation by state action of a constitutionally protected interest is not itself a
violation of procedural due process. Id. Instead, it is the deprivation of such an
interest without due process of law that is unconstitutional. Id. With respect to the
procedural protections required by the Constitution, the United States Supreme
Court has held that it “requires some kind of a hearing before the State deprives a
person of liberty or property.” Id. at 127 (emphasis in original). “In some
circumstances, however, the Court has held that a statutory provision for a
postdeprivation hearing, or a common-law tort remedy for erroneous deprivation,
satisfies due process.” Id. at 128.
Procedural due process claims are subject to a two-step inquiry: The first
question asks whether there exists a liberty or property interest which
has been interfered with by the State; the second examines whether the
procedures attendant upon that deprivation were constitutionally
sufficient.
ODonnell v. Harris Cty., 892 F.3d 147, 157 (5th Cir. 2018) (quotation omitted).
(i)

Whether Plaintiffs’ procedural due process claim is ripe

The City argues that Plaintiffs’ procedural due process claim is not ripe
because it is ancillary to their takings claim. See City’s Mem. [14] at 11. The Fifth
Circuit has “distinguished procedural due process claims that involve allegations of
deprivations ‘ancillary’ to or ‘arising from’ a takings claim from those whose main
thrust is not a claim for a taking.” Bowlby v. City of Aberdeen, Miss., 681 F.3d 215,
223-24 (5th Cir. 2012) (quotation omitted). In the former case, ripeness depends
upon the ripeness of the takings claim; the ripeness of the latter is a separate

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question from the ripeness of any takings claim. Id. at 224. This is because where
a procedural due process claim is cognizable separate and apart from a takings
claim, a plaintiff’s potential damages for the due process violation and for the
takings claim are not coextensive. Id. at 225. “There are many intangible rights
that merit the protection of procedural due process although their infringement
falls short of an exercise of the power of eminent domain for which just
compensation is required under the Fifth and Fourteenth Amendments.” Id. at 226
(quotation omitted).
The Fifth Circuit has held that “where the injury that resulted from an
alleged procedural due process violation is merely a taking without just
compensation, [a court] cannot know whether the plaintiff suffered any injury until
the takings claim has been adjudicated.” Rosedale Missionary Baptist Church v.
New Orleans City, 641 F.3d 86, 91 (5th Cir. 2011) (citing John Corp. v. City of
Houston, 214 F.3d 573, 585-86 (5th Cir. 2000)). Thus, where a procedural due
process claim is coextensive with the takings claim, a court should permit state
takings procedures to “run their course” before adjudicating the procedural due
process claim. Id.
Conversely, where a plaintiff’s procedural due process claim asserts facts
which implicate injuries broader than those occasioned by a taking without just
compensation, such as “economic injuries” and “inadequate pre-deprivation due
process,” which is itself actionable, and where a state law proceeding would not
afford a remedy for these additional injuries, the procedural due process claim does

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not completely overlap with the takings claim. Archbold-Garrett v. New Orleans
City, 893 F.3d 318, 324 (5th Cir. 2018). Under these circumstances, the procedural
due process claim is ripe for adjudication regardless of the ripeness of the takings
claim. Id.
Here, the First Amended Complaint alleges that Plaintiffs were denied predeprivation due process because the City intentionally revoked their building
permit without providing Plaintiffs notice and an opportunity to be heard, and
without affording them any pre- or post-deprivation remedies. First Am. Compl. [8]
at 10. Plaintiffs assert that they “were damaged and make claim for all damages
allowable under federal law,” id. at 10, and seek compensatory damages for the
alleged injuries caused by this deprivation, id. at 14.
“[T]he injury that stems from a denial of due process is not the liberty or
property that was taken from [Plaintiffs], but the fact that it was taken without
sufficient process.” Bowlby, 681 F.3d at 222. Plaintiffs allege that they suffered
damages which appear to be beyond those available for a takings claim.
Specifically, in addition to damages caused by the taking itself, Plaintiffs assert
that they were damaged because they were deprived of an opportunity to appear at
the City’s hearing and argue in support of their building permit. Plaintiffs also
allege other damages which go beyond the diminution in value or loss of use of their
property. See First Am. Compl. [8] at 10. In short, Plaintiffs’ procedural due
process claim does not mirror their takings claim, compare id., with id. at 11, and
the City has not sufficiently shown that the available state law proceedings would

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afford a remedy for these additional injuries, see Archbold-Garrett, 893 F.3d at 324.
Thus, at least on the present record, the procedural due process claim appears to be
ripe for adjudication. The City’s Motion to Dismiss should be denied as to Plaintiffs’
procedural due process claim.
(ii)

Whether Plaintiffs’ takings claim is ripe

“[A] claim that the application of government regulations effects a taking of a
property interest is not ripe until the government entity charged with implementing
the regulations has reached a final decision regarding the application of the
regulations to the property at issue.” Williamson Cty. Reg’l Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). Thus,
[a] takings claim becomes ripe only when (1) the relevant governmental
unit has reached a final decision as to how the regulation will be applied
and (2) the plaintiff has sought compensation for the alleged taking
through whatever adequate procedures the state provides.
Gibson v. Texas Dep’t of Ins.--Div. of Workers’ Comp., 700 F.3d 227, 240 (5th Cir.
2012). The first prong of this analysis derives from courts’ reluctance to hear
premature takings claims. Urban Developers LLC, 468 F.3d at 293.
Where a procedural due process claim is ripe, a court must consider whether
fairness and judicial economy justify a federal court’s hearing a related, but unripe,
takings claim. See Archbold-Garrett, 893 F.3d at 324. The Fifth Circuit has
recently recognized that, under Williamson County, the ripeness inquiry for a
takings claim operates as a prudential doctrine, rather than as a strict
jurisdictional bar. Id. “Sending [plaintiffs’] takings claim back to state court while
their due process claim remains in federal court would needlessly generate
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additional legal expenses for the parties and would result in piecemeal litigation,
which does not serve judicial economy.” Id. at 325. According to the Fifth Circuit, a
district court errs by dismissing a plaintiff’s takings claim under such
circumstances. Id.
Because the Court will deny the City’s request to dismiss Plaintiffs’
procedural due process claim, Archbold-Garrett directs this Court to retain the
takings claim, at least until such time as the procedural due process claim is
resolved.
III. CONCLUSION
Defendant City of Ocean Springs, Mississippi’s, Motion [13] to Dismiss will
be granted in part and denied in part. Plaintiffs’ equal protection claim will be
dismissed with prejudice, and Plaintiffs’ remaining claims will proceed.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Motion [13]
to Dismiss All Claims Brought Under § 1983 filed by Defendant City of Ocean
Springs, Mississippi, is GRANTED IN PART, as to Plaintiffs’ equal protection
claim, and DENIED IN PART, in all other respects.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiffs’ equal
protection claim is DISMISSED WITH PREJUDICE. Plaintiffs’ remaining claims
will proceed.
SO ORDERED AND ADJUDGED, this the 12th day of March, 2019.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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