NANCE et al v. CITY OF ALBEMARLE, NORTH CAROLINA et al

Filing 22

MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 2/16/2021; that the Motion to Dismiss pursuant to Rule 12(b)(6) filed by Defendants City of Albemarle, Mayor Ronnie Michael, Chief Danny Bowen, and Kevin Robinson, (Doc. 10 ), is GRANTED IN PART. Claims One, Three, Four, Six, and Seven are DISMISSED pursuant to Fed. R. Civ. P. 12(b)(6). Claim Eleven is DISMISSED AS MOOT. Claims Two, Eight, Nine, Ten, and Twelve are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3). FURTHER that Defendant Shoaf's Motion to Dismiss, (Doc. 14 ), is GRANTED IN PART. Claims Five and Seven are dismissed pursuant to Fed. R. Civ. P. 12(b)(6). Claim Eleven is DISMISSED AS MOOT. Claims Eight, Nine, Ten, and Twelve are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3). A judgment reflecting this Memorandum Opinion and Order will be entered contemporaneously herewith. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CHUCKY L. NANCE and
JENNIFER R. NANCE,

)
)
)
Plaintiffs,
)
)
v.
)
)
CITY OF ALBEMARLE, NORTH
)
CAROLINA, MAYOR RONNIE
)
MICHAEL, individually and in
)
his official capacity, CHIEF
)
DANNY BOWEN, individually and
)
in his official capacity, SA
)
MEREDITH SHOAF, individually,
)
and KEVIN ROBINSON, DIRECTOR OF )
PLANNING AND DEVELOPMENT
)
SERVICES, individually and in
)
his official capacity,
)
)
Defendants.
)

1:19CV641

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Before this court is a Motion to Dismiss pursuant to Rule
12(b)(6) filed by Defendants City of Albemarle, Mayor Ronnie
Michael, Chief Danny Bowen, and Kevin Robinson. (Doc. 10.)
Defendant Meredith Shoaf filed a separate motion to dismiss.
(Doc. 14.) For the reasons stated herein, this court finds it
should grant both motions as to all federal claims. This court

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declines to exercise supplemental jurisdiction over the
remaining state claims.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint . . . .” Ray
v. Roane, 948 F.3d 222, 226 (4th Cir. 2020) (quoting King v.
Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016)). The court may
also consider documents “attached to the complaint as exhibits
. . . .” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166
(4th Cir. 2016); see also Fed. R. Civ. P. 10(c) (“A copy of a
written instrument that is an exhibit to a pleading is a part of
the pleading for all purposes.”). The following facts are taken
from the Complaint and its attachments as true.
A.

Factual Background

Plaintiffs are husband and wife. (Complaint (“Compl.”)
(Doc. 1) ¶ 14.) Plaintiffs own the property at the center of
this dispute, a property in the town of Albemarle, North
Carolina, known as the “Heart of Albemarle” (the “Property”).
(Id.) Defendant the City of Albemarle (“City”) is a municipality
in North Carolina. (Id. ¶ 8.) Defendant Ronnie Michael was the
mayor of Albemarle during all times relevant to this suit. (Id.
¶ 4.) Defendant Robert Daniel Bowen was the Albemarle City Chief
of Police during all relevant times. (Id. ¶ 5.) Defendant
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Meredith Shoaf was a Special Agent in the North Carolina State
Bureau of Investigation working in the Alcohol Law Enforcement
branch. (Id. ¶ 6.) Defendant Kevin Robinson was the Director of
Planning and Zoning for the City of Albemarle. (Id. ¶ 7.) This
court has jurisdiction pursuant to 28 U.S.C. § 1331.
After Plaintiffs bought the Property, they leased it to
Charlene Smith, who in turn leased it to individual tenants on
“an extended stay basis.” (Id. ¶ 15.) Plaintiffs were interested
in having the Property approved for use as “Section 8”1 housing,
and they asked Eric Allsbrook, a Section 8 Inspector with the
City of Albemarle to tour the Property and “see if after
renovations the property would meet minimum HUD requirements.”
(Id. ¶ 16.) The inspector said the Property would qualify after
renovations were made and provided a letter stating this. (Id.)
Around February 2017, Plaintiff Chucky L. Nance (“Mr. Nance”)
made all Defendants, except Defendant Shoaf, aware of his plans
for the Property. (Id. ¶ 18.) Plaintiffs allege that, at the
same time, the City was considering purchasing a building across
the street from the Property. (Id. ¶ 24.)

“Under the Section 8 program, the federal government
provides funds to local housing authorities, which then
subsidize rental payments for qualifying low-income tenants in
privately-owned buildings.” Mhany Mgmt., Inc. v. Cnty. of
Nassau, 819 F.3d 581, 588 (2d Cir. 2016) (citing 42 U.S.C.
§ 1437f(o)(1)(A)).
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In anticipation of conducting the renovations on the
Property, Mr. Nance began applying for the necessary permits on
March 3, 2017, (id. ¶ 20), and “Central Permitting of Stanly
County” subsequently issued those permits to Mr. Nance, who paid
for them, (id. ¶ 21). However, the City of Albemarle’s Planning
and Development Services Department requires individuals whose
building projects are located within the City of Albemarle to
submit a City Coordination Form, to review the project for
compliance with applicable City ordinances and Fire Code.
Permitting & Inspections. City of Albemarle Planning and
Development Services Department, Permitting & Inspections,
https://www.albemarlenc.gov/departments/planning-anddevelopment-services/building-inspections (last visited Feb. 3,
2021).
On or about March 24, 2017, Plaintiffs received a letter
from Defendant Bowen stating that the Property was being used in
an illegal manner under “Chapter 19, Article 1, of the North
Carolina General Statutes.” (Compl. (Doc. 1) ¶ 22.) The letter
stated that:
[d]uring the past several months, the Albemarle Police
Department has responded to numerous calls at this
Property. Reported unlawful activities on the property
include illegal possession and sale of controlled
substances and repeated acts which create and
constitute a breach of the peace, including fights and
assaults. Citizens in the community have repeatedly
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complained to law enforcement authorities about such
activities occurring upon your property.
(Compl. (Doc. 1), Ex. A, Chief Bowen Nuisance Letter (“Bowen
Letter”) (Doc. 1-1).) The letter also stated that Mr. Nance had
forty-five days to abate the nuisance. (Id.)
Mr. Nance responded with his own letter on March 31, 2017,
stating that he would “promptly evict all current residents
. . . and begin the renovations to the property that were
discussed at a previous council meeting . . . .” (Compl.
(Doc. 1) ¶ 25.) Mr. Nance also requested a “copy of the
investigation, all complaints, a copy of the documents your
attorney referenced in our meeting on March 30, 2017 so that I
may best alleviate any concerns.” (Id. ¶ 26.) Mr. Nance also
asked for confirmation within five days that Defendants “would
consider this matter settled upon the evictions and the
beginning of renovations and would cease any enforcement efforts
based on the circumstances alleged . . . .” (Compl. (Doc. 1),
Ex. B, Letter from Mr. Nance to Defendants (“Nance Letter”)
(Doc. 1-2) at 1.) Plaintiffs allege that Defendants “failed
and/or refused to respond to his request.” (Compl. (Doc. 1)
¶ 27.)
On April 5, 2017, Mr. Nance “attempted to apply for a
required City of Albemarle Coordination Form with the City of

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Albemarle for renovations to Building 3.”2 (Id. ¶ 30.) Defendant
Robinson, upon learning that Mr. Nance was applying for the
form, sent an email to the City’s attorney asking how to
proceed. (Id. ¶ 31.) The attorney responded,
[w]e’ve told [Mr. Nance] in writing that we want the
motel demolished. Our position is that if he evicts
all the criminal types that because of the reputation
of the building, the criminal type [sic] will come
back and we will have the nuisance problem over and
over and over again. We don’t think any useful purpose
would be served by encouraging him to make repairs.
(Id.)
On April 5, 2017, Defendant Robinson denied the
Coordination Form, citing “legal issues between you and the City
of Albemarle . . . .” (Id. ¶ 33.) After the City informed
Mr. Nance that the Coordination Form had been denied, Stanly
County’s Permitting Director informed Defendant Robinson that
Plaintiffs’ County permits had been canceled and would not be
regranted until the City approved the Coordination Form. (Id.
¶ 34.)

Both parties agree that the Coordination Form must be
approved before the permitting process can be completed.
(Defendant City, Michael, Bowen, and Robinson’s Brief in Support
of Motion to Dismiss (“Defs.’ Br.”) (Doc. 13) at 8; Plaintiffs’
Response to Defendant City, Michael, Bowen, and Robinson’s Brief
(“Pls.’ Resp.”) (Doc. 17) at 7.)
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Plaintiffs allege that both the denials by the City and
Stanly County were inconsistent with their normal procedures.
(Id. ¶ 35.) Plaintiffs do not allege, however, that the
Coordination Form was required to be issued, nor do Plaintiffs
allege, as a matter of historical practice, that the form was
always issued. This court therefore finds that the issuance of
the Coordination Form was a matter of the exercise of the City
of Albemarle’s discretion. Plaintiffs had no right, vested or
otherwise, to the Coordination Form.3
Mr. Nance evicted his last tenant on April 21, 2017, with
assistance from the City of Albemarle Policy Department. (Id.
¶ 36.) Shortly after the tenants were evicted, Plaintiffs allege
that Mr. Nance, “in an effort to satisfy the City, cleaned and
removed furniture, carpet, pictures, and even the wallpaper in
preparation for renovations to the property.” (Id. ¶ 38.)
Plaintiffs allege that “the property could not have been
reopened until renovations were made.” (Id.)

This court’s finding appears to be consistent with the
City of Albemarle’s administrative scheme. That scheme allows an
individual to appeal the decisions of administrative officials
charged with the enforcement of the zoning ordinances. City of
Albemarle, North Carolina Code of Ordinances § 21.010(D),
https://codelibrary.amlegal.com/codes/albemarle/latest/albemarle
_nc/0-0-0-22405#JD_21.010.
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Plaintiffs allege that “[p]rior to May 15, 2017, Chief
Danny Bowen, Special Agent Shoaf, and Paul Whitfield presented
Chucky Nance with two proposed consent judgments to resolve
potential litigation over the alleged nuisance.” (Id. ¶ 39.)
Plaintiffs allege that one consent judgment required Plaintiffs
to sell the Property to the City, while the other required
Plaintiffs to demolish the Property. (Id. ¶ 40.)
Plaintiffs allege Mr. Nance appeared at a City Council
meeting on May 15, 2017, where he informed the City Manager that
he had evicted the last tenant and had done “everything in his
March 31, 2017 letter . . . .” (Id. ¶ 41; Nance Letter (Doc.
1-2) at 1; Pls.’ Resp. Br. (Doc. 13) at 3.)
At that same City Council meeting, Plaintiffs allege that
Mr. Nance directly addressed Defendant Michael “out of
frustration” regarding the denial of his Coordination Form,
stating “Crap or get off the pot.” (Compl. (Doc. 1) ¶ 44.)
Plaintiffs allege that “the very next day,” Defendant Michael
“made the decision to file suit . . . . and directed Chief Bowen
to move ahead with the lawsuit.” (Id.) Plaintiffs allege that
Defendant Michael “exceeded his authority” and was “without
proper authorization from the City Council” when he “directed
Chief Danny Bowen to proceed with the suit against
Plaintiffs . . . .” (Id. ¶ 45.)
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Plaintiffs allege the nuisance complaint was ultimately
filed on August 4, 2017, “approximately 105 days after the
cessation of all business activity at the Heart of Albemarle
property and 121 days after denying Mr. Nance’s request for the
Coordination Form to begin improvements to the property.” (Id.
¶ 64.) Plaintiffs allege that the Property was “‘now and for
some considerable time prior to the filing of this [nuisance]
Complaint has been established, maintained, owned, leased and
used by Defendants Chucky L. Nance and Jennifer Nance as a place
for the purpose of’ various nuisance activities.” (Id. ¶ 47.)
Yet, Plaintiffs allege that “for months prior to August 4,
2017,” Defendants Bowen, Michael, and Shoaf “were all aware that
all business operations had ceased at the Heart of Albemarle.”4
(Id. ¶ 46.) Moreover, Plaintiffs allege that Defendant Shoaf,
“despite having been advised by her supervisor on or about
June 20, 2017, to at least mention in the complaint that the
property had been temporarily closed failed to include any
mention that the business had ceased operations on the property
in the complaint she drafted.” (Id. ¶ 48.) Plaintiffs allege
that Defendant Shoaf “sought to build community support for the

Because a nuisance action arises from criminal activity at
a particular property, see N.C. Gen. Stat. § 19-1, the fact that
business activities may have ceased does not mean the nuisance
had been abated.
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nuisance complaint rather than investigate whether there was a
nuisance,” (id. ¶ 58), including by contacting “a few good
business owners/preachers/community or political figures” who
knew Mr. Nance. (Id.) Plaintiffs also allege that Defendant
Shoaf gave Kirsten Foyles, the trustee of the bank which held
the Deed of Trust for the Heart of Albemarle property,
“information from Special Agent Shoaf’s investigation into the
Heart of Albemarle property,” in order to “put pressure on Mr.
Nance.” (Id. ¶¶ 61-62.)
The trial court dismissed the nuisance complaint for lack
of subject matter jurisdiction on May 11, 2018, (id. ¶ 65), a
decision upheld by the North Carolina Court of Appeals, State on
Relation of City of Albemarle v. Nance, 266 N.C. App. 353, 354,
831 S.E.2d 605, 606 (2019), review denied, 373 N.C. 585, 838
S.E.2d 182 (2020). As the North Carolina Court of Appeals noted,
[t]he Nances do not contest the statutes and the
City’s charter allow the City to file and maintain a
civil action for a public nuisance. They argue the
city council did not vote and resolve to exercise its
authority in this action. Without the city council’s
ordinance or resolution, the Nances argue the City has
produced no evidence to show that the formal process
to file suit was initiated, approved, or resolved by
the city council. We agree.
. . . .
The City failed to properly initiate a public
nuisance action against the Nances. The City failed to
follow the requirements of the statutes and ordinances
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in effect or to provide evidence of outside counsel’s
authority to file suit on its behalf. The trial court
properly concluded it lacked subject matter
jurisdiction to address the City’s claims against the
Nances.
Id. at 360-62, 832 S.E.2d at 610–11.
In June 2018, after the trial court dismissed the nuisance
complaint, Plaintiffs again applied for Coordination Form
approval. (Compl. (Doc. 1) ¶ 69.) Plaintiffs allege the form was
denied in August of 2018. (Id. ¶ 71.) Plaintiffs allege that
Defendant City “has cited no legal authority permitting them to
deny Plaintiffs the City of Albemarle Coordination Form but have
only cited past problems and the City’s belief that Plaintiffs’
new use would be no different from the past use . . . .” (Id.)
Plaintiffs’ Complaint does not allege that Plaintiffs appealed
the denial of the Coordination Form to the Planning and Zoning
Appeals Board or to Superior Court, as permitted under
Albemarle’s City Ordinances. See City of Albemarle, North
Carolina Code of Ordinances §§ 21.010, 21.012,
https://codelibrary.amlegal.com/codes/albemarle/latest/albemarle
_nc/0-0-0-22405#JD_21.010 [hereinafter “Albemarle Ordinances”].
Plaintiffs allege that “[s]ometime in February 2019, with
no explanation, the City of Albemarle, finally approved
Mr. Nance’s renewed request” for the Coordination Form. (Compl.
(Doc. 1) ¶ 73.)
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B.

Procedural History

Plaintiffs filed their Complaint with this court on
June 27, 2019. (Compl. (Doc. 1).) Plaintiffs bring several
claims.
Plaintiffs’ First Claim for Relief is against Defendant
City for “Deprivation of Substantive and Procedural Due Process,
Equal Protection, Taking Without Compensation, and Free Speech
Rights” pursuant to 42 U.S.C. § 1983. (Id. ¶¶ 74-79.)
Plaintiffs’ Second Claim for Relief is against Defendant City
for Inverse Condemnation under North Carolina law. (Id. ¶¶ 8083.) Plaintiffs’ Third Claim for Relief is against Defendant
Michael individually and in his official capacity for
“Deprivation of Substantive and Procedural Due Process, Equal
Protection, Taking Without Compensation, and Free Speech Rights”
pursuant to 42 U.S.C. § 1983. (Id. ¶¶ 84-89.) Plaintiffs’ Fourth
Claim for Relief is against Defendant Robinson in his individual
and official capacity for “Deprivation of Substantive and
Procedural Due Process, Equal Protection, Taking Without
Compensation, and Free Speech Rights” pursuant to 42 U.S.C.
§ 1983. (Id. ¶¶ 90-96.) Plaintiffs’ Fifth Claim for Relief is
against Defendant Shoaf in her individual capacity only for
“Deprivation of Substantive and Procedural Due Process, Equal
Protection, Taking Without Compensation, and Free Speech Rights”
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pursuant to 42 U.S.C. § 1983. (Id. ¶¶ 97-101.) Plaintiffs’ Sixth
Claim for Relief is against Defendant Bowen in his individual
and official capacity for “Deprivation of Substantive and
Procedural Due Process, Equal Protection, Taking Without
Compensation, and Free Speech Rights” pursuant to 42 U.S.C.
§ 1983. (Id. ¶¶ 102-04.) Plaintiffs’ Seventh Claim for Relief is
against all Defendants for “Civil Conspiracy to Deprive
Plaintiffs of Substantive and Procedural Due Process, Equal
Protection, Taking Without Compensation, and Free Speech Rights”
pursuant to 42 U.S.C. § 1983. (Id. ¶¶ 105-09.) Plaintiffs’
Eighth Claim for Relief is against Defendants Bowen and Shoaf in
their individual capacities for Fraud under North Carolina state
law. (Id. ¶¶ 110-13.) Plaintiffs’ Ninth Claim for Relief is
against Defendants Bowen, Shoaf, and Michael in their individual
capacities for violation of North Carolina’s Unfair and
Deceptive Trade Practices Act. (Id. ¶¶ 114-18.) Plaintiffs’
Tenth Claim for Relief is against Defendant Michael in his
individual and official capacity, Defendant Bowen in his
individual and official capacity, and Defendant Shoaf
individually for Malicious Prosecution under state law. (Id.

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¶¶ 119-22.)5 Plaintiffs’ Eleventh Claim for Relief is for
Punitive Damages against all Defendants. (Id. ¶¶ 123-27.)
Finally, Plaintiffs’ Twelfth Claim for Relief is against all
Defendants for Civil Conspiracy to Obstruct Justice under state
law. (Id. ¶¶ 128-31.)
Defendants City, Michael, Bowen, and Robinson filed a
Motion to Dismiss pursuant to Rule 12(b)(6), (Doc. 10), for
failure to state a claim, as well as a supporting brief. (Defs.’
Mem. of Law in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Br.”)
(Doc. 11).) Plaintiffs responded to Defendants City, Michael,
Bowen, and Robinson’s motion, (Pls.’ Mem. of Law in Opp’n to
Defs.’ Mot. to Dismiss (“Pls.’ First Resp.”) (Doc. 13)), and
Defendants City, Michael, Bowen, and Robinson replied, (Defs.’
Reply to Pls.’ Resp. to Defs.’ Mot. to Dismiss (“Defs.’ Reply”)
(Doc. 17)). This motion to dismiss is ready for a ruling.
Defendant Shoaf filed her own Motion to Dismiss, (Doc. 14),
for failure to state a claim, along with a supporting brief,
(Def. Shoaf’s Mem. of Law in Supp. of Mot. to Dismiss (“Def.
Shoaf’s Br.”) (Doc. 15)). Plaintiffs responded to Defendant
Shoaf’s motion, (Pls.’ Mem. of Law in Opp’n to Defs. Shoaf’s

Plaintiffs clarified in their briefing that their
malicious prosecution claim was brought under state law, not as
a § 1983 action. (Pls.’ Second Resp. (Doc. 16) at 14.)
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Mot. to Dismiss (“Pls.’ Second Resp.”) (Doc. 16)), but Defendant
Shoaf did not reply. The time to reply has lapsed. LR 7.3(h).
Defendant Shoaf’s motion is now ripe.
Upon request of this court, Plaintiffs filed a supplemental
brief regarding their Substantive Due Process claim, (Doc. 21).
On November 16, 2020, this court heard oral arguments from all
parties with respect to Defendants’ Motions to Dismiss and the
issues raised in Plaintiffs’ supplemental briefing. (Minute
Entry 11/16/2020.)
For the reasons stated herein, this court finds it should
grant both motions as to all federal claims. This court declines
to exercise supplemental jurisdiction over the remaining state
law claims and will dismiss those without prejudice.
II.

STANDARD OF REVIEW
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, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its
face if “the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable” and demonstrates “more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing
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Twombly, 550 U.S. at 556–57). When ruling on a motion to
dismiss, this court accepts the complaint’s factual allegations
as true. Iqbal, 556 U.S. at 678. Further, this court liberally
construes “the complaint, including all reasonable inferences
therefrom, . . . in plaintiff’s favor.” Estate of Williams-Moore
v. All. One Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646
(M.D.N.C. 2004) (citation omitted). This court does not,
however, accept legal conclusions as true, and “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
III. ANALYSIS
A.

Plaintiffs’ First Cause of Action: Constitutional
Claims against Defendant City

Plaintiffs’ First Claim for Relief is against Defendant
City for “Deprivation of Substantive and Procedural Due Process,
Equal Protection, Taking Without Compensation, and Free Speech
Rights” pursuant to 42 U.S.C. § 1983. (Compl. (Doc. 1)
¶¶ 74-79.)
Municipalities are liable as “persons” under 42 U.S.C.
§ 1983 for constitutional torts caused by the municipality. City
of Canton v. Harris, 489 U.S. 378, 385 (1989). A municipality
cannot be held responsible for the conduct of its officers on a
theory of respondeat superior, Monell v. Dep’t of Soc. Servs.,

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436 U.S. 658, 691-95 (1978), and “[i]t is only when the
execution of the government’s policy or custom inflicts the
injury that the municipality may be held liable under § 1983.”
City of Canton, 489 U.S. at 385 (internal modifications and
quotations omitted).
To prove municipal liability, Plaintiffs must plausibly
allege “(1) that the defendants acted under color of state law
and (2) that the plaintiff suffered a deprivation of a
constitutional right as a result of that action.” Davis v.
Durham Mental Health Developmental Disabilities Substance Abuse
Area Auth., 320 F. Supp. 2d 378, 403 (M.D.N.C. 2004) (citing
Gomez v. Toledo, 446 U.S. 635 (1980)). The “under color of state
law” element requires plaintiffs to plausibly allege that an
official policy or custom led to the alleged deprivation of a
constitutional right. Id.
A custom, policy, or practice can be shown in four ways:
(1) through an express policy, such as a written ordinance or
regulation; (2) through the decisions of a person with final
policymaking authority; (3) through an omission, such as a
failure to properly train officers, that manifests deliberate
indifference to the rights of citizens; or (4) through a
practice that is so persistent and widespread as to constitute
a custom or usage with the force of law.
Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (internal
quotations and modifications omitted).

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Plaintiffs allege that Defendant City, acting under color
of law, “unlawfully denied Plaintiffs’ requests for the City of
Albemarle Coordination Form,” and “interfered with the normal
approval or denial process for the City of Albemarle
Coordination Form.”6 (Compl. (Doc. 1) ¶ 75.)
Plaintiffs also allege that “the City of Albemarle was
motivated by racial animus in preventing the construction of
Section 8 housing in the highly visible Central Business
District directly across the street from the location where the
new police department will be constructed,” (id. ¶ 76), and that
“it is the custom or policy of the City of Albemarle, to
unlawfully limit low income housing as it sees low income
housing as an economic threat to the City,” (id. ¶ 77). Finally,
Plaintiffs allege that “Defendant used governmental action to
unreasonably deprive Plaintiffs of their legitimate property

Although not necessary for an analysis of municipal
liability, this conclusory allegation is not plausibly pled
under the standard established in Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.”). Plaintiffs never allege what the normal approval or
denial process is. As a result, this court cannot find the
normal process was not followed. Plaintiffs applied for a
Coordination Form. (Compl. (Doc. 1) ¶ 30.) Defendant Robinson
spoke with a City attorney, then denied the form for the reasons
discussed with the attorney. (Id. ¶¶ 31-33.) Plaintiffs allege
no facts to suggest that there was anything abnormal about this
process.
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interests in derogation of their rights of due process.” (Id.
¶ 78.)
Defendant City argues that Plaintiffs’ Complaint fails to
state a claim for municipal liability under 42 U.S.C § 1983.
(Defs.’ Br. (Doc. 11) at 7-11.) Defendant City argues that
Plaintiffs have not plausibly alleged that they suffered a
deprivation of a Constitutional or federal statutory right, (id.
at 8-9), or that Plaintiffs suffered the alleged deprivation due
to an action taken under color of state law, (id. at 8).
Because respondeat superior may not serve as a basis of
municipal liability under § 1983, Monell, 436 U.S. at 694-95,
this court examines whether Plaintiffs have plausibly
established that the “municipal action was taken with the
requisite degree of culpability,” Bd. of Cnty. Comm’rs of Bryan
Cnty. v. Brown, 520 U.S. 397, 404 (1997), using the four factors
indicated by the Fourth Circuit in Lytle.
1.

A Custom or an Express Policy

In support of their claims that Defendant City violated the
Equal Protection and Due Process Clauses of the Fourteenth
Amendment, (Compl. (Doc. 1) ¶¶ 77-79), Plaintiffs allege that
“it is the custom or policy of the City of Albemarle[] to
unlawfully limit low income housing,” (id. ¶ 77). This court
finds, however, that Plaintiffs’ allegations are unsupported by
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specific facts that indicate that there was an express written
regulation or ordinance that would limit low income housing or
that the City had denied permits for low income housing in other
instances. (See id. ¶¶ 13-73.)
Because “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice,” Iqbal, 556 U.S. at 678, Plaintiffs’ allegations do not
lead to a reasonable inference of municipal liability for
Plaintiffs’ claims under a theory of an express policy or a
widespread or persistent custom or usage. See Lytle, 326 F.3d at
471. Accordingly, Plaintiffs have not plausibly alleged
Defendant City should be held liable for the alleged Fourteenth
Amendment violations of its employees using these methods of
proving municipal liability.
2.

Decisions of a Person with Final Policymaking
Authority.

Under the second method for proving municipal liability, a
city will be held liable for the decisions of a person with
final policymaking authority. Lytle, 326 F.3d at 471. “A ‘final
policymaker’ for the purposes of municipal liability is someone
who has ‘the responsibility and authority to implement final
municipal policy with respect to a particular course of
action.’” Id. at 472 (quoting Riddick v. Sch. Bd. of City of

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Portsmouth, 238 F.3d 518, 523 (4th Cir. 2000)).
“[T]he identification of policymaking officials is a
question of state law.” City of St. Louis v. Praprotnik, 485
U.S. 112, 124 (1988). “If an official’s acts are subject to
review or supervision by a municipal policymaker, that official
does not have final policymaking authority.” Alexander v. City
of Greensboro, 762 F. Supp. 2d 764, 783 (M.D.N.C. 2011) (citing
Riddick, 238 F.3d at 523-24).
This court finds that Plaintiffs have not plausibly alleged
that the alleged constitutional violations resulted from the
decisions of a person with final policymaking authority.
With regard to Plaintiffs’ First Amendment retaliation
claims, Plaintiffs argue that Defendant City’s actions occurred
“in violation of plaintiffs’ constitutionally protected right to
free speech and were done by singling plaintiffs out for
illegitimate political or personal motives,” when Defendant
Michael directed Defendant Bowen to “move ahead” with the
nuisance suit following Mr. Nance’s statements at the City
Council meeting. (Pl.’s First Resp. (Doc. 13) at 10.) However,
according to Plaintiffs’ allegations, Defendant Michael did not
have “proper authorization” from the City Council to move ahead
with the suit, (id.), and in doing so, Defendant Michael
“exceeded his authority,” (Compl. (Doc. 1) ¶ 45). Because a
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final policymaker is “someone who has the responsibility and
authority to implement final municipal policy with respect to a
particular course of action,” Lytle, 326 F.3d at 472,
Plaintiffs’ pleaded facts establish that Defendant Michael was
not a final policymaker for the purposes of filing a nuisance
action on behalf of the City of Albemarle. Accordingly, this
court finds that Plaintiffs have not plausibly alleged that
Defendant City is liable for alleged First Amendment retaliation
which may or may not have occurred from any personal motives of
Defendant Michael.
Moreover, Plaintiffs argue that Defendant City is liable
where “the City and individuals within and outside the City
acted in an extraordinary intervention into the normal approval
processes with racially discriminatory intent and with personal
motives to deny [Plaintiffs] a required Coordination Form.”
(Pls.’ First Resp. (Doc. 13) at 8.) Defendants argue, however,
that although “Defendant Robinson may have had authority to
accept and act upon applications for Coordination Forms, in the
normal course of the City’s business, his decisions and actions
are subject to review by the Planning and Zoning Appeals Board,”
(Defs.’ Br. (Doc. 11) at 10), and thus, Defendant Robinson is
not a final policymaking official “such that his actions or
omissions establish municipal policy.” (Id.) Plaintiffs do not
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contest or contradict Defendants’ assertion of state law. (See
Pls.’ First Resp. (Doc. 13) at 7-11.) In the absence of pleaded
facts establishing that Defendant Robinson’s decisions are not
reviewable, this court finds that he is not a final policymaker
with decision-making authority under state law and that
Plaintiffs have not plausibly alleged that Defendant City is
liable for any alleged wrongdoing by Defendant Robinson in
denying the Coordination Form.
Because the pleaded facts do not support a reasonable
inference that a custom or policy of Defendant City led to the
alleged Constitutional violations, this court will dismiss all
claims against Defendant City for failure to state a claim of
municipal liability.
B.

Plaintiffs’ Federal Claims against Defendants Michael,
Bowen, and Robinson in their Official Capacities

In addition to Plaintiffs’ claims against Defendant City,
Plaintiffs’ Third, Fourth, and Sixth Causes of Action raise
claims of “Deprivation of Substantive and Procedural Due
Process, Equal Protection, Taking without Compensation, and Free
Speech Rights” under § 1983 against Defendants Michael, Bowen,
and Robinson in their official capacities. (Compl. (Doc. 1)
¶¶ 84-89, ¶¶ 90-96, ¶¶ 102-04.)

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“Personal-capacity suits seek to impose personal liability
upon a governmental official for actions he takes under color of
state law.” Kentucky v. Graham, 473 U.S. 159, 165 (1985). By
contrast, official-capacity suits, “generally represent only
another way of pleading an action against an entity of which an
officer is an agent.” Id. (citing Monell, 436 U.S. at 690,
n.55). Because “an official-capacity suit is, in all respects
other than name, to be treated as a suit against the entity,”
id. at 166, official-capacity claims “should be dismissed as
duplicative” when the entity is also named as a defendant. LoveLane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004).
Plaintiffs have brought the same claims against Defendants
Michael, Bowen, and Robinson in their official capacity as
against Defendant City. Accordingly, this court finds that these
claims are duplicative and will dismiss all official-capacity
claims against Defendants Michael, Bowen, and Robinson.
C.

Plaintiffs’ Federal Claims against Defendants Michael,
Bowen, Robinson, and Shoaf in their Personal
Capacities

Plaintiffs’ Third, Fourth, Fifth, and Sixth Causes of
Action also raise claims against Defendants Michael, Bowen,
Robinson, and Shoaf in their personal capacities for
“Deprivation of Substantive and Procedural Due Process, Equal
Protection, Taking Without Compensation, and Free Speech Rights”
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under § 1983. (Compl. (Doc. 1) ¶¶ 84-89, ¶¶ 90-96, ¶¶ 97-101,
¶¶ 102-04.)
Defendants Michael, Bowen, and Robinson move to dismiss
Plaintiffs’ Complaint on several grounds. First, they argue that
any individual capacity claims have not been plausibly alleged
since Plaintiffs’ have failed to allege facts showing that
Defendants personally acted to deprive Plaintiffs of any
constitutional rights. (Defs.’ Br. (Doc. 11) at 12.) Second,
they argue that they are entitled to Qualified Immunity from
§ 1983 liability since Plaintiffs have not identified a clear
constitutional right to the Coordination Form or to immunity
from a nuisance lawsuit. (Id. at 14.)
Plaintiffs responded that “[w]here a plaintiff claims that
a particular municipal action itself violates federal law, or
directs an employee to do so, resolving these issues of fault
and causation is straightforward.” (Pls.’ First Resp. (Doc. 13)
at 8.) Plaintiffs argue that they have plausibly alleged
violations of their federal constitutional rights in the form of
Defendants’ denial of the Coordination Form for legally
impermissible and racially discriminatory reasons, coercing
Plaintiffs through the nuisance action, and retaliating for
Mr. Nance’s protected speech. (Id. at 8–11.) Plaintiffs also
argue that all the constitutional wrongs they alleged were
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clearly established at the time they were committed, meaning
Defendants are not entitled to qualified immunity. (Id. at
13-14.)
Defendants Michael, Bowen, and Robinson reply that
Plaintiffs’ claims must be dismissed as “[t]he allegations in
the Complaint are not sufficient as they amount to nothing more
than conclusory allegations and impermissible unreasonable
inferences.” (Defs.’ Reply (Doc. 17) at 2.) Defendants argue
that Plaintiffs’ First Amendment rights were not violated
because the alleged basis of retaliation, the nuisance action,
had been initiated before Mr. Nance spoke at the May 15, 2017
City Council meeting. (Id. at 4.) Defendants also argue that
Plaintiffs did not suffer an unconstitutional taking since a
“nuisance is an exception to a taking.” (Id. at 6.) Finally,
Defendants argue that Plaintiffs had no vested property rights
that could serve as the basis for a procedural or substantive
due process violation. (Id. at 7.)
Defendant Shoaf is being sued only in her personal
capacity. (Compl. (Doc. 1) ¶¶ 97-101.) Defendant Shoaf argues
first that Plaintiffs have failed to plausibly allege that she
acted personally to deprive Plaintiffs of any constitutional
rights. (Def. Shoaf’s Br. (Doc. 15) at 4.) Defendant Shoaf also
asserts her own right to Qualified Immunity against any § 1983
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claims. (Id. at 6.) Defendant Shoaf argues that “Plaintiffs’
facts [] do not show that Defendant Shoaf acted unreasonably or
outside of the authority granted to her as a law enforcement
officer.” (Id. at 9.)
In their response to Defendant Shoaf, Plaintiffs argue that
they have alleged facts showing that Defendant Shoaf acted
personally to pressure Plaintiffs by way of the nuisance action.
(Pls.’ Second Resp. (Doc. 16) at 7–9.) Plaintiffs also argue
that the constitutional wrongs they allege were clearly
established, meaning Defendant Shoaf is not entitled to § 1983
immunity. (Id.)
This court will address each of Plaintiffs’ claims under 42
U.S.C. § 1983 in turn.
1.

Equal Protection

This court finds that Plaintiffs have failed to plausibly
allege a violation of the Equal Protection Clause as to all
Defendants.
The Fourteenth Amendment’s Equal Protection Clause states
that “[n]o State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. The Equal Protection Clause “is essentially a
direction that all persons similarly situated should be treated
alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
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439 (1985). The Clause “requires that the states apply each law,
within its scope, equally to persons similarly situated, and
that any differences of application must be justified by the
law’s purpose.” Sylvia Dev. Corp. v. Calvert Cnty., 48 F.3d 810,
818 (4th Cir. 1995).
An equal protection violation occurs either “(1) when the
government explicitly classifies people based on race, or (2)
when a law is facially neutral, but its administration or
enforcement disproportionately affects one class of persons over
another and a discriminatory intent or animus is shown.” Monroe
v. City of Charlottesville, 579 F.3d 380, 388 (4th Cir. 2009).
Proving an Equal Protection claim involves a two-step
analysis. First, a plaintiff must “demonstrate that he has been
treated differently from others with whom he is similarly
situated and that the unequal treatment was the result of
intentional or purposeful discrimination.” Morrison v.
Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). The second part of
the Equal Protection analysis is to “determine whether the
disparity in treatment can be justified under the requisite
level of scrutiny”. Id. “The level of scrutiny depends on the
type of classification.” Sansotta v. Town of Nags Head, 724 F.3d
533, 542 (4th Cir. 2013).

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a.

Plaintiffs’ Allegations of Unequal Treatment

Plaintiffs do not allege that Defendants’ zoning ordinances
or processes for reviewing Coordination Forms are discriminatory
on their face. Instead, Plaintiffs base their Equal Protection
claims on the theory that the Coordination Form was denied to
prevent racial minorities from living at the Property.7 (See
Compl. (Doc. 1) ¶¶ 54–55, 76.)
With facially neutral laws, “if a classification is not
explicitly stated, the plaintiff bears the initial burden of
proving that a classification was nonetheless intentionally
utilized.” Sylvia Dev. Corp., 48 F.3d at 819. A plaintiff must
prove that the classification has both a discriminatory purpose
and a discriminatory effect. Vill. of Arlington Heights v.

Assuming Plaintiffs have plausibly alleged the elements
for an Equal Protection claim, Plaintiffs have standing to raise
it. Although Plaintiffs do not allege that they are members of a
suspect class, Plaintiffs allege that Defendants were aware that
they wanted to use the Property for Section 8 housing. (Nance
Letter (Doc. 1-2) at 1.) The Fourth Circuit has recognized that
developers may assert the rights of prospective minority tenants
victimized by alleged racial discrimination, see, e.g., Scott v.
Greenville Cnty., 716 F.2d 1409, 1415-16 (4th Cir. 1983). Where
“[t]he heart of [a plaintiff’s] racial discrimination claim is
that he was singled out for adverse treatment because defendants
believed he was willing to contract with and otherwise associate
with blacks and other minorities through the building of lowincome housing,” Plaintiffs “need neither allege nor show that
members of a minority group will in fact reside in the proposed
housing in order to satisfy standing requirements.” Id.
7

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Metro. Hous. Dev. Corp., 429 U.S. 252, 264–68 (1977); Washington
v. Davis, 426 U.S. 229, 238–42 (1976).
“To demonstrate a Fourteenth Amendment claim, a plaintiff
must demonstrate discriminatory effect by showing the unequal
treatment of a person or persons as compared to other similarly
situated individuals.” United States v. Johnson, 122 F. Supp. 3d
272, 354 (M.D.N.C. 2015); see also Sylvia Dev. Corp., 48 F.3d at
818–19 (“Even though a state law is facially neutral, its
administration or enforcement can effect an unequal application
by favoring one class of persons and disfavoring another.”).
“To survive a motion to dismiss, a plaintiff need not
allege that the challenged action rested solely on racially
discriminatory purposes . . . It is enough for a plaintiff to
plausibly plead that an invidious discriminatory purpose was a
motivating factor in the challenged decision.” La Unión del
Pueblo Entero v. Ross, 353 F. Supp. 3d 381, 393 (D. Md. 2018)
(citing Arlington Heights, 429 U.S. at 265-66) (internal
quotations omitted). Courts may consider both circumstantial and
direct evidence of intent, including:
(1) evidence of a “consistent pattern” of actions by
the decisionmaking body disparately impacting members
of a particular class of persons; (2) historical
background of the decision, which may take into
account any history of discrimination by the
decisionmaking body or the jurisdiction it represents;
(3) the specific sequence of events leading up to the
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particular decision being challenged, including any
significant departures from normal procedures; and (4)
contemporary statements by decisionmakers on the
record or in minutes of their meetings.
Sylvia Dev. Corp., 48 F.3d at 819 (citing Arlington Heights, 429
U.S. at 266-68). “[A] plaintiff can survive a motion to dismiss
without independently establishing that each factor weighs in
the plaintiff’s favor.” Ross, 353 F. Supp. 3d at 394.
Citing Scott v. Greenville County, 716 F.2d 1409, 1416 (4th
Cir. 1983), Plaintiffs argue that “[r]acially discriminatory
local land use decisions of various kinds have long been struck
down or found actionable under the Equal Protection Clause.”
(Pls.’ First Resp. (Doc. 13) at 14; Pls.’ Second Resp. (Doc. 16)
at 9.) Plaintiffs imply that the denial of the Coordination Form
presents the type of invidious discrimination the Fourth Circuit
warned against in Scott. (Id.) However, this court finds that
Plaintiffs’ allegations regarding a role that race may have
played in Defendants’ decision to deny Plaintiffs the
Coordination Form are conclusory and unsupported by the facts
alleged in the Complaint.
Although Plaintiffs argue that “[t]he City made it clear
through information it disseminated to the general public, its
denial of the plaintiffs’ access to the permitting process, and
the revocation of permits already issued, that it saw affordable

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housing as a threat to its plans,” (Pls.’ First Resp. (Doc. 13)
at 9), and that Plaintiffs were “prevented from serving [sic]
minority community which was racially motivated.” (Id. at 9-10.)
Plaintiffs’ Complaint does not provide any facts indicating what
Defendants might have said or done to expressly or impliedly
indicate that they believed affordable housing was a threat or
that they were racially motivated. Because “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice,” Iqbal, 556 U.S. at 678,
Plaintiffs’ allegations regarding information disseminated by
the City do not support a reasonable inference that Defendants
were racially motivated.
Moreover, Plaintiffs’ Complaint describes only one
conversation in which racism or racial bias is explicitly or
implicitly discussed. Referring to a deposition Defendants
conducted for the underlying nuisance action, Plaintiffs argue
that “some of [Defendants’] motives were apparent when the
attorney for the Defendants and acting on their behalf became
enraged during the deposition of [City Inspector] Allsbrook and
upon the completion of the deposition called Mr. Allsbrook (a
black male) ‘a racist’ in referring to Mr. Allsbrook’s sworn
testimony.” (Compl. (Doc. 1) ¶ 54.) Plaintiffs allege that the
Defendants’ attorney, “directed Mr. Allsbrook to ‘stop talking
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about racism,” and that “Defendants took no steps to distance
themselves from this type of rhetoric and in fact kept their
then attorney employed in the case.” (Id.)
This court finds that the facts alleged about the incident
do not support a reasonable inference that Defendants harbored
racially discriminatory views regarding affordable housing.
Although Plaintiffs argue that, by calling Mr. Allsbrook a
racist, Defendants were “seeking to stop Mr. Allsbrook from
expressing his views in support of Plaintiffs’ attempts to
support minority residents in need of affordable housing,” (id.
¶ 55), Plaintiffs do not directly allege what Mr. Allsbrook said
such that this court could reasonably infer whether his views
regarding race discrimination in affordable housing projects had
merit or, more importantly, whether the attorney’s comments
somehow permit an inference of racial discrimination on the part
of his clients. Moreover, assuming Mr. Allsbrook expressed
support for Plaintiffs’ efforts to support minority residents in
need of affordable housing, the actions by Defendants’ attorney
or the decision to retain him do not support a reasonable
inference that Defendants harbored discriminatory views or that
those views led to the denial of Plaintiffs’ Coordination Form
in the absence of any facts which might support such an
inference.
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Even if this court could reasonably infer invidious
discrimination from the attorney’s comments, which it cannot,
the alleged comments from the deposition exchange during the
nuisance lawsuit are unconnected to the denial of the
Coordination Form. The attorney who made the comment is not a
Defendant, and Plaintiffs do not allege that he played any role
in the denial of the Coordination Form. Thus, Plaintiffs have
not plausibly alleged that this incident is connected to the
denial of the Coordination Form in any way.
Ultimately, this court finds that Plaintiffs have not
alleged either direct or indirect evidence of intent which would
support a reasonable inference that invidious discrimination
played any role in Defendants’ decision to deny Plaintiffs the
Coordination Form, let alone that “an invidious discriminatory
purpose was a motivating factor in the challenged decision.”
Ross, 353 F. Supp. 3d at 393 (citing Arlington Heights, 429 U.S.
at 265-66) (internal quotations omitted).
First, Plaintiffs’ Complaint does not allege that the City
has engaged in a pattern of denying Coordination Forms for
affordable housing. See Sylvia Dev. Corp., 48 F.3d at 819.
Plaintiffs’ Complaint makes no allegations, in fact, regarding
how often or to whom Coordination Forms have been granted in the
past.
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Second, Plaintiffs do not provide historical information
about housing discrimination in the City of Albemarle, see
Sylvia Dev. Corp., 48 F.3d at 819, and Plaintiffs’ allegations
that “there continues to be a need for more Section 8 housing in
the City of Albemarle,” (Compl. (Doc. 1) ¶ 51), do not, without
additional facts not present in Plaintiffs’ Complaint, support a
reasonable inference that Defendants had maliciously created a
shortage of affordable housing.
Third, Plaintiffs do not allege any statements Defendants
may have made contemporaneously with the decision to deny
Plaintiffs the Coordination Form that lead to a reasonable
inference of discrimination. See Sylvia Dev. Corp., 48 F.3d at
819. In fact, the facts alleged in Plaintiffs’ Complaint support
the opposite inference - that Defendants were motivated to
address the underlying nuisance. Plaintiffs allege that
Defendants’ stated reason for denying the Coordination Form was
“legal issues between [Mr. Nance] and the City of Albemarle,”
and that Defendant Robinson believed that, given these issues,
it would not “be appropriate for my department to proceed with
issuing any form of approval, zoning or otherwise. . . .”
(Compl. (Doc. 1) ¶ 31.) Plaintiffs’ allegations regarding an
email discussion between Defendant Robinson and an attorney for
the City support an inference that Defendants sought to address
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the underlying nuisance. In that conversation, the attorney
stated that,
Our position is that if he evicts all the criminal
types that because of the reputation of the building,
the criminal type[s] will come back and we will have
the nuisance problem over and over and over again. We
don’t think any useful purpose would be served by
encouraging him to make repairs.
(Id.)
Fourth, although Plaintiffs allege that the “denial of the
City Coordination form . . . [was] not in accordance with normal
practices and procedures of the City of Albemarle and Stanly
County,” (id. ¶ 35), Plaintiffs do not allege what the normal
practices and procedures were, nor do they assert that they were
entitled to approval of the Coordination Form as of right.8 For
these reasons, this court finds that any allegations regarding
“the specific sequence of events leading up to the particular
decision being challenged, including any significant departures
from normal procedures,” Sylvia Dev. Corp., 48 F.3d at 819, are

During oral arguments on November 16, 2020, Plaintiffs
implied that the denial of Plaintiffs’ Coordination Form was
exceptional because it was the first time that the City had
denied a Coordination Form. In the absence of such an allegation
in the Complaint or some substantive and concrete facts to this
effect, however, this court declines to sua sponte amend the
Complaint to include this as a fact. This court will limit its
analysis to the facts alleged in Plaintiffs’ Complaint, which do
not contain information about the frequency or number of
Coordination Forms requested or denied.
8

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conclusory and unsupported by the facts alleged in the
Complaint.
Accordingly, this court finds that Plaintiffs do not
plausibly allege that Defendants acted with an unconstitutional
motivation based on race or that Defendants granted and denied
Coordination Forms based on race. Since Plaintiffs offer no
other suspect classification, this court now applies the
appropriate level of scrutiny.
b.

Applying the Appropriate Level of Scrutiny

“It is elementary ‘that when no fundamental right or
suspect classification is at issue, the Equal Protection Clause
allows a legislative body wide latitude in drawing
classifications.’” Siena Corp. v. Mayor & City Council of
Rockville, 873 F.3d 456, 465 (4th Cir. 2017) (quoting Tri-County
Paving, Inc. v. Ashe Cnty., 281 F.3d 430, 438 (4th Cir. 2002)).
“Such classifications are permissible so long as they are
‘rationally related to a legitimate state interest.’” Id.
(quoting City of Cleburne, 473 U.S. at 440). “This analysis
looks not to the subjective motivations of the local officials.
The test is simply whether the governmental end is legitimate
and whether the means chosen to further that end are rationally
related to it.” Id. (citing Front Royal & Warren Cnty. Indus.

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Park Corp. v. Town of Front Royal, 135 F.3d 275, 290 (4th Cir.
1998)).
Plaintiffs’ own allegations support the legitimate state
interest in denying the Coordination Form. Defendants had
already begun the process of bringing a nuisance suit against
the Property. (See Bowen Letter (Doc. 1-1); Nance Letter (Doc.
1-2) at 1.) Defendants were worried that granting the
Coordination Form would encourage the return of “criminal
type[s]” meaning the City would “have the nuisance problem over
and over and over again.” (Compl. (Doc. 1) ¶ 31.) Defendants’
concerns about safety were legitimate interests. See Siena
Corp., 873 F.3d at 464 (“[T]he Council believed [certain risks]
to be associated with self-storage warehouses, among them the
prospect of increased crime, traffic, and illicit drugs. Such
concerns fall within the heart of the state’s police power:
safeguarding ‘the public health, safety, morals, or general
welfare.’” (quoting Vill. of Euclid v. Ambler Realty Co., 272
U.S. 365, 395 (1926)).) Furthermore, Plaintiffs never plausibly
allege the Property did not constitute a nuisance. To the
contrary, their eviction of the lessee and tenants could

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reasonably be understood otherwise.9
The decision to deny Plaintiffs their Coordination Form is
also rationally related to the abatement of the alleged
nuisance. If neither a fundamental right nor a suspect
classification is at issue, “the pertinent question for
determining whether the governmental action violated the Equal
Protection Clause is whether [government actors] reasonably
could have believed that the action was rationally related to a
legitimate governmental interest.” Front Royal, 135 F.3d at 290.
Plaintiffs’ allegations support a reasonable inference that
Defendants believed the only way to abate the nuisance was to
demolish or transfer the Property. Prior to May 15, 2017,
Defendants offered Plaintiffs two consent judgments: to either
sell the Property to the City or demolish the Property. (Compl.
(Doc. 1) ¶ 40.) “Whether one agrees or disagrees with the
[City’s] assessment . . . is beside the point. As the local
governing body, the [City] was entitled” to consider options
that they thought would best promote the City’s health and

This court is required to draw all reasonable inferences
in favor of Plaintiffs, and therefore, does not draw an
inference that any evictions constitute a concession of a
nuisance. However, this court makes this point to illustrate the
implausibility of Plaintiffs’ allegations that Plaintiffs
experienced a deprivation of Equal Protection under the
Constitution.
9

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safety. Siena Corp., 873 F.3d at 464. Demolishing the Property
or transferring ownership would have undoubtedly abated the
nuisance.
In sum, Plaintiffs have not plausibly alleged that the
denial of the Coordination Form constituted disparate treatment
as compared to members outside a suspect class, and Plaintiffs
have failed to allege any facts supporting the conclusion that
Defendants acted with discriminatory intent. Plaintiffs’
allegations that Defendants acted with racial animus are not
supported by plausible facts; instead, Plaintiffs rely upon
conclusory allegations. This court does not, however, accept
legal conclusions as true, and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678. Since no
suspect classification is at issue, Plaintiffs have also failed
to allege facts plausibly supporting the claim that the denial
of the Coordination Form was not rationally related to a
legitimate state interest. For these reasons, Plaintiffs’ Equal
Protection Clause claims should be dismissed.
2.

First Amendment Retaliation

Plaintiffs allege claims of First Amendment retaliation
against Defendants Michael, Bowen, Robinson, and Shoaf in their
individual capacities. (See Compl. (Doc. 1).) Defendants argue
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that qualified immunity bars these claims. (Def. Shoaf’s Br.
(Doc. 15) at 6-9; Defs.’ Br. (Doc. 11) at 13-15.) This court
finds that qualified immunity bars Plaintiffs’ claims of First
Amendment retaliation against Defendants Michael, Bowen,
Robinson, and Shoaf in their personal capacities.
a.

Legal Standard for Qualified Immunity

The doctrine of qualified immunity “operates to protect
law enforcement and other government officials from civil
damages liability for alleged constitutional violations stemming
from their discretionary functions.” Raub v. Campbell, 785 F.3d
876, 880-81 (4th Cir. 2015) (citing Anderson v. Creighton, 483
U.S. 635, 638-39 (1987)). “The defense of qualified immunity is
broader than a mere defense to liability. Rather, intended to
‘spare individual officials the burdens and uncertainties of
standing trial,’ it provides for immunity from suit where a
state actor’s conduct is objectively reasonable under the
circumstances.” Id. at 881 (quoting Gooden v. Howard Cnty., 954
F.2d 960, 965 (4th Cir. 1992) (en banc)); see also Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985) (plurality opinion) (finding
that qualified immunity is “effectively lost if a case is
erroneously permitted to go to trial”).
Questions of qualified immunity should be decided “at the
earliest possible stage in litigation.” Hunter v. Bryant, 502
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U.S. 224, 227 (1991). “[Q]ualified immunity analysis typically
involves two inquiries: (1) whether the plaintiff has
established the violation of a constitutional right, and (2)
whether that right was clearly established at the time of the
alleged violation.” Raub, 785 F.3d at 881. Courts are not
required to analyze both prongs of the analysis, but rather, may
address the questions in the order “that will best facilitate
the fair and efficient disposition of each case.” Pearson v.
Callahan, 555 U.S. 223, 243 (2009). This court begins its
analysis by considering whether Plaintiffs have alleged a right
that was clearly established at the time of the alleged
violation.
A clearly established right is one that is “sufficiently
clear that every reasonable official would have understood that
what he is doing violates that right.” Reichle v. Howards, 566
U.S. 658, 664 (2012) (internal quotations and alteration
omitted). “The dispositive question is whether the violative
nature of particular conduct is clearly established.” Mullenix
v. Luna, 577 U.S. 7, 12 (2015) (internal quotations and
citations omitted). “[T]his inquiry must be undertaken in light
of the specific context of the case, not as a broad general
proposition.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per
curiam) (internal quotations and citations omitted). “We do not
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require a case directly on point, but existing precedent must
have placed the statutory or constitutional question beyond
debate.” Ashcroft v. al—Kidd, 563 U.S. 731, 741 (2011).
b.

Plaintiffs have not Plausibly Alleged a
Clearly Established Constitutional Right
Against First Amendment Retaliation Specific
to the Context of this Litigation

Plaintiffs allege that “[t]he First Amendment right to free
speech includes not only the affirmative right to speak, but
also the right to be free from retaliation by a public official
for the exercise of that right.” Suarez Corp. Indus. v. McGraw,
202 F.3d 676, 685 (4th Cir. 2000). (Pls.’ First Resp. (Doc. 13)
at 13-14.) Plaintiffs allege, without greater specificity, that
the opinion in Suarez “clearly demonstrate[s] settled law well
before this controversy arose, and plaintiffs respectfully
argue, all defendants should reasonably know that . . .
retaliation on the basis of free speech . . . violate[s] the
plaintiffs federally protected rights.” (Id. at 14.)
Defendants argue that, “[w]hile it is true that the law
prohibits government officials from engaging in retaliatory acts
in response to speech in fear of a chilling effect,” (Defs.’
Reply (Doc. 17) at 4), “Plaintiffs have not sufficiently
identified a clearly established constitutional right that . . .
[Defendants] knowingly violated.” (Defs.’ Br. (Doc. 11) at 14;

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see also Def. Shoaf’s Br. (Doc. 15) at 6 (“Plaintiffs have not
adequately pled constitutional claims against Defendant Shoaf in
her individual capacity.”).) Moreover, Defendants argue that a
reasonable officer in Defendants’ positions would not have known
that his or her conduct was unlawful given the context. (Def.
Shoaf’s Br. (Doc. 15) at 9; Defs.’ Br. (Doc. 11) at 14.)
i.

Defendant Michael is Entitled to
Qualified Immunity

Plaintiffs argue that Defendant Michael retaliated against
Mr. Nance by directing Defendant Bowen to file a nuisance suit
the day after Mr. Nance made his comment at the May 15, 2017
City Council meeting. (Compl. (Doc. 1) ¶¶ 45, 85.) Plaintiffs
argue that both the fact that Defendant Michael did not have the
authority to proceed with the nuisance suit without
authorization from the City Council, (id. ¶ 45), and that the
decision to proceed was “the very next day”, (id. ¶ 44), are
suggestive of intent to violate “plaintiffs’ constitutionally
protected right to free speech” and to “singl[e] plaintiffs out
for illegitimate political or personal motives.” (Pls.’ First
Resp. (Doc. 13) at 10.)
At the same time, Plaintiffs’ other allegations make clear
that the nuisance issue, and the City’s threat of a lawsuit,
started before the May 15, 2017 City Council meeting, (Compl.

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(Doc. 1) ¶¶ 22-25), and that the City was preparing to move
forward with the nuisance action as early as April 2017, (id.
¶¶ 18, 31, 33). The action had not yet been filed as of
Mr. Nance’s May 15, 2017 comments, (id. ¶ 39-44), because
Defendants were still waiting for a response from Mr. Nance
regarding “two proposed consent judgments to resolve potential
litigation,” (id. ¶ 39). Defendants’ offer of settlement
contained in the consent judgments required Plaintiffs to sell
or demolish the Property.10 (Id. ¶ 40.) Plaintiffs’ Complaint
establishes that Mr. Nance rejected Defendants’ proposed consent
judgments when he made his statement at the May 15, 2017 City
Council meeting requesting the approval of his Coordination Form
to move ahead with renovations. (Id. ¶ 44.)
At oral argument on November 16, 2020, Plaintiffs argued
that the Fourth Circuit’s opinion in Constantine v. Rectors and
Visitors of George Mason Univ., 411 F.3d 474 (4th Cir. 2005),
clearly establishes that Defendant Michael’s conduct violated

The City’s offer of a consent judgment framework to
resolve the matter, as described by Plaintiffs, is significant.
A consent judgment requires the filing of a complaint and a
civil action in which the judgment could be entered. Even if
Plaintiffs had accepted the City of Albemarle’s proposal, a
civil action would have been filed. Therefore, assuming
Plaintiffs could establish a prima facie case of retaliation,
the absence of established precedent recognizing Defendant
Michael’s acts as retaliatory further supports application of
qualified immunity.
10

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the First Amendment. The alleged retaliation in Constantine
arose when the defendant university retaliated against the
plaintiff for complaining about a law exam she took and the
university’s grade appeals policies. 411 F.3d at 499.
Although Constantine may establish the elements for
pleading a First Amendment retaliation claim generally, id., the
facts in Constantine are distinct from those at issue here. That
the Fourth Circuit found in Constantine that “the Eleventh
Amendment poses no bar to Constantine’s claims” regarding First
Amendment retaliation in an academic setting, id. at 501, would
not be instructive to a reasonable officer in Defendant
Michael’s position, who moved ahead with a nuisance lawsuit that
had been contemplated for some time only one day after Mr. Nance
spoke at the City Council meeting. See Saucier v. Katz, 533 U.S.
194, 205 (2001) (recognizing that “[i]t is sometimes difficult
for an officer to determine how the relevant legal doctrine
. . . will apply to the factual situation the officer
confronts”).
The Fourth Circuit recognized in Suarez Corporation
Industries that “not every reaction made in response to an
individual’s exercise of his First Amendment right to free
speech is actionable retaliation.” 202 F.3d at 685. Because
“[d]etermining whether a plaintiff’s First Amendment rights were
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adversely affected by retaliatory conduct is a fact intensive
inquiry that focuses on the status of the speaker, the status of
the retaliator, the relationship between the speaker and the
retaliator, and the nature of the retaliatory acts,” id. at 686,
the court reviewed prior precedent regarding First Amendment
retaliation, id. at 686-89.
The Fourth Circuit’s focus on the context in which these
cases arose underscores the level of specificity necessary to
find that a First Amendment right was clearly established. For
example, the court recounted that there is a clearly established
right where a public employer makes decisions regarding
“‘promotion, transfer, recall, and hiring,’ based on the
exercise of an employee’s First Amendment rights,” id. at 686
(quoting Rutan v. Republican Party, 497 U.S. 62, 79 (1990));
where a public official “restricts the award of or terminates
public benefits based on the citizen’s exercise of his First
Amendment rights,” id. at 686-87 (citing Bd. of Cnty. Comm’rs v.
Umbehr, 518 U.S. 668, 686 (1996)); or where a state commission’s
“conduct amounted to ‘thinly veiled threats to institute
criminal proceedings’ against publishers who did not make
efforts to stop circulating publications on a list created by
the Commission,” id. at 688 (citing Bantam Books, Inc. v.
Sullivan, 372 U.S. 58, 68 (1963)). By contrast, the Fourth
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Circuit recognized that there was not a First Amendment
violation where a borough “sent letters to a landowner
encouraging, but not threatening, intimidating, or coercing, the
landlord to terminate its leases with a billboard owner,” even
where “the landowner terminated the leases in order to curry
favor with the borough.” Id. at 687 (citing R.C. Maxwell Co. v.
Borough of New Hope, 735 F.2d 85, 89 (3d Cir. 1984)).
The Fourth Circuit has, in other cases, provided additional
guidance for the contours of a First Amendment right against
retaliation arising out of threatened or actual litigation. In
Deal v. Newport Datsun Ltd., 706 F.2d 141, 141-42 (4th Cir.
1983), the court did not find that a landlord’s refusal to renew
plaintiffs’ lease of a lot in a mobile home park and the filing
of litigation against them was retaliatory, even where the
plaintiffs had been active in voicing tenant complaints and had
written an article critical of the park’s management for
publication in a local newspaper. Citing the Supreme Court’s
decision in Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), the
Fourth Circuit found that although “plaintiffs were served with
process in the ejectment action and called upon to respond in
that proceeding,” they had been “deprived of nothing” because
“[t]hey can suffer no adverse consequences until after full
trial shall have been had in the state court and a judicial
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determination of the rights of the parties” has occurred. Deal,
706 F.2d at 142. The court held that “commencement of the
proceeding without interference with the tenants’ possession of
their property or their right of possession of the leasehold,
pending final judgment in the state court, infringed no
[constitutional] right.” Id.
Similarly, in Bell v. School Board of City of Norfolk, 734
F.2d 155 (4th Cir. 1984), in which a parent alleged a school
board had retaliated against them for speaking out against a
school assignment plan by filing a declaratory judgment suit
declaring the plan legal, the Fourth Circuit held that
“initiation of a suit seeking declaratory judgment in this
instance does not rise to the level of a constitutional
violation.” 734 F.2d at 158.
As a factual matter, Plaintiffs’ prima facie case as to
retaliation is that (1) Plaintiff spoke publicly and rejected
the City’s offer publicly; (2) the next day, without proper
authorization, Defendant Michael directed Defendant Bowen to
move forward with the nuisance claim; and (3) the filing of the
nuisance complaint in August 2017 was an effort to retaliate
against Plaintiffs by Defendant Michael for Mr. Nance’s speech,
since the Complaint was filed at Defendant Michael’s direction.
Yet, neither the facts in Constantine, nor those of the cases
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cited by the Fourth Circuit in Suarez, closely mirror the facts
in the instant case to the point where the “violative nature of
particular conduct” was clearly established at the time
Defendant Michael acted. Mullenix, 577 U.S. at 12 (internal
quotations and citations omitted). Although “general statements
of the law are not inherently incapable of giving fair and clear
warning to officers,” the precedents cited by Plaintiffs “do not
by themselves create clearly established law outside an obvious
case.” Kisela v. Hughes, 584 U.S. ____, ____, 138 S. Ct. 1148,
1153 (2018) (internal citations and quotations omitted).
A survey of case law outside the Fourth Circuit does not
clarify whether there is a clearly established right of the sort
indicated by Plaintiffs’ prima facie case. For example, in
Benison v. Ross, 765 F.3d 649, 660-63 (6th Cir. 2014), the Sixth
Circuit held that a reasonable jury could conclude that a public
university’s decision to file a civil lawsuit against an
employee to recover sabbatical pay because of her husband’s
protected First Amendment activities constituted First Amendment
retaliation. By contrast, in DeMartini v. Town of Gulf Stream,
942 F.3d 1277, 1307 (11th Cir. 2019), cert. denied, ____ U.S.
____, ____ S. Ct. ____, No. 19-1436, 2020 WL 6385773 (U.S.
Nov. 2, 2020), the Eleventh Circuit held that a lawsuit filed

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against a law firm employee who had sought public records from
the town was not retaliatory. The court held that:
[b]ecause the speech the Town allegedly retaliated
against here – the public records requests and
subsequent lawsuits – was the same protected speech
for which the Town filed a civil lawsuit supported by
probable cause, [the plaintiff’s] retaliation claim is
precisely the type of claim that the Supreme Court
. . . was concerned would prove indecipherable for
purposes of proving causation and therefore would
create a serious risk of “dubious” First Amendment
retaliatory claims.
Id. (citing Lozman v. City of Riviera Beach, 585 U.S. ____,
____, 138 S. Ct. 1945, 1953 (2018)). The mixed results from the
Eleventh and Sixth Circuits, combined with Fourth Circuit
precedent, support a reasonable inference that this is an area
of law that was not clearly established at the time Defendant
Michael acted.
In sum, Plaintiffs have not brought to this court’s
attention, nor has this court found, any precedent which
prohibits state actors from proceeding with a previously
threatened civil action following an individual’s exercise of a
Free Speech right. In light of the Supreme Court’s precedent
that an officer “cannot be said to have violated a clearly
established right unless the right’s contours were sufficiently
definite that any reasonable official in the defendant’s shoes
would have understood that he was violating it,” Plumhoff v.

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Rickard, 572 U.S. 765, 778-79 (2014), this court finds that
Plaintiffs have not plausibly alleged it was a clearly
established violation of constitutional law for a reasonable
officer in Defendant Michael’s position to continue to pursue a
nuisance action following Mr. Nance’s public rejection of the
proposed consent judgments at the City Council meeting.
Accordingly, this court will dismiss Plaintiffs’ First Amendment
Retaliation claim against Defendant Michael.
ii.

Defendants Shoaf, Robinson, and Bowen
are Entitled to Qualified Immunity

Plaintiffs’ Fourth, Fifth, and Sixth Causes of Action
recite claims of First Amendment Retaliation against Defendants
Shoaf, Robinson, and Bowen. (Compl. (Doc. 1) ¶¶ 90-104.) In
addition to the factual issues presented in the claims against
Defendant Michael with regard to identifying a clearly
established right, see discussion supra Part III.C.2.i.,
Plaintiffs face an additional factual twist in that Plaintiffs
allege that Defendants Bowen, Robinson, and Shoaf acted on the
nuisance complaint only after Defendant Michael directed them to
proceed. (Compl. (Doc. 1) ¶¶ 45-49.) This court finds that
neither Plaintiffs’ assertions of constitutional precedent, nor
the facts incorporated therein, indicate a constitutional right
that these Defendants may have violated.

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First, Plaintiffs allege that Defendant Bowen “wrongfully
and with reckless disregard to Plaintiff’s rights caused a
nuisance complaint alleging an active nuisance to be filed.”
(Id. ¶ 103.) Yet, Plaintiffs do not point to a precedent that
indicates that Defendant Bowen violated a clearly established
constitutional right when he followed Defendant Michael’s
direction to assist in the filing of a nuisance action that had
been in progress for several months. (See Pls.’ First Resp.
(Doc. 13) at 10).
Second, with regards to Plaintiffs’ claim against Defendant
Robinson, the substance of Plaintiffs’ allegations are directed
only to his participation in the denial of the Coordination
Form, and do not allege that he was part of the effort to file a
nuisance action, the incident at the heart of Plaintiffs’ First
Amendment Retaliation claim. (Id. ¶¶ 91-95.) Thus, Plaintiffs do
not identify how his participation only in the denial of the
Coordination Form violated a clearly established constitutional
right against First Amendment Retaliation.
Finally, with regards to Defendant Shoaf, Plaintiffs allege
that she sought “to build community support for a nuisance
action rather than conducting a valid investigation” and
revealed “confidential investigative information to Kirsten
Foyles at First Bank in an attempt to pressure Mr. Nance . . .
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into a favorable settlement for the Defendants.” (Id. ¶ 98.)
Although Plaintiffs allege that, in doing so, Defendant Shoaf
was “acting under color of law to deprive Plaintiffs of their
constitutional right to free speech,” Plaintiffs’ allegations
are conclusory, as Plaintiffs do not indicate a precedent which
indicates that, given the context in which her actions occurred,
Defendant Shoaf violated a clearly constitutional right. (See
Pls.’ First Resp. (Doc. 13) at 10).
Qualified immunity “gives ample room for mistaken
judgments,” Malley v. Briggs, 475 U.S. 335, 343 (1986), and
protects “all but the plainly incompetent or those who knowingly
violate the law,” id. at 341. “Officials are not liable for bad
guesses in gray areas; they are liable for transgressing bright
lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.
1992). “[I]f no right is transgressed, our inquiry ends, because
government officials cannot have known of a right that does not
exist.” Porterfield v. Lott, 156 F.3d 563, 567 (4th Cir. 1998).
Accordingly, in the absence of clearly established law,
this court will dismiss Plaintiff’s claims of First Amendment
retaliation against Defendants Michael, Bowen, Robinson, and
Shoaf in their personal capacities.

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3.

Procedural Due Process

This court finds that Plaintiffs have not plausibly alleged
a procedural due process claim against any Defendant and that
qualified immunity bars Plaintiffs’ claims.
a.

Plaintiffs’ Claims on their Merits

To state a procedural due process claim, a plaintiff must:
(1) “demonstrate that he had a constitutionally cognizable life,
liberty, or property interest”; (2) “he must show that the
deprivation of that interest was caused by some form of state
action”; and (3) “he must prove that the procedures employed
were constitutionally inadequate.” Sansotta, 724 F.3d at 540
(internal quotation marks and citations omitted). This court
assumes, arguendo, the first two elements and focuses on the
third: whether the procedures were constitutionally adequate.11
This court finds that they were.

It does not seem, however, that Plaintiffs had a property
interest in the Coordination Form. See Sylvia Dev. Corp., 48
F.3d at 826 (“According to Calvert County Zoning Ordinance
§ 4-302, the creation of a TZD at any particular location in the
County is discretionary with the County Board. Thus, Sylvia
Development cannot claim entitlement to a TZD on its property,
and approval of a TZD accordingly cannot be claimed by Sylvia
Development as a property interest.”). Plaintiffs’ allegations
regarding the Coordination Form’s precise contents and purpose
are vague and Defendants’ briefing does not assist the court in
determining where the Coordination Form falls in the City’s
(Footnote continued)
11

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“Due process of law generally requires that a deprivation
of property ‘be preceded by notice and opportunity for hearing
appropriate to the nature of the case.’” Tri-County Paving, 281
F.3d at 436 (quoting Mullane v. Cent. Hanover Bank & Tr.
Co., 339 U.S. 306, 313 (1950)). “However, ‘to determine whether
a procedural due process violation has occurred, courts must
consult the entire panoply of predeprivation and postdeprivation
process provided by the state.’” Id. (quoting Fields v.
Durham, 909 F.2d 94, 97 (4th Cir. 1990)). “The procedures due in
zoning cases, and by analogy due in cases such as this one
involving regulation of land use through general police powers,
are not extensive.” Id.
In Tri-County Paving, the Fourth Circuit affirmed a
district court’s summary judgment dismissal of a procedural due
process claim. The plaintiff alleged that the defendant had
violated its procedural due process rights when it denied its

ordinance scheme. At oral arguments on November 16, 2020,
however, all parties agreed that Defendants have discretion in
granting a Coordination Form, meaning Plaintiffs’ had no
legitimate property interest in the Form. Cf Scott, 716 F.2d at
1418 (finding that the plaintiff had a “cognizable property
interest, rooted in state law,” to the permit for a multi-family
housing project, as the project “fully complied with the
requirements of the zoning ordinance in effect as of the date on
which he formally applied,” and the state law did not permit
discretion for those projects that complied with the zoning
requirements).
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permit to build an asphalt plant. Id. at 433. In discussing the
process the county provided, the court noted that:
[t]he County provided [the plaintiff] with an
abundance of predeprivation process. First, there is
no evidence that [the plaintiff] was denied the
opportunity to submit the documentation necessary to
qualify for a building permit. [The plaintiff’s
employees were] allowed full access to the County
Building Inspector’s office on numerous occasions and
the [employees] often spoke directly with Robert Reed,
the Director of Building Inspections, regarding [the
plaintiff’s] permit application. [One employee] stated
in deposition testimony that he and [another employee]
applied for a permit “several times in October and
November 1998 and many times after that” and “would
just drop in [at Reed’s office] and tell them we
needed a building permit.” [Another employee]
similarly testified that he and [another employee]
“asked for a building permit on many occasions.”
Id. at 436–37. Employees for the plaintiff company in Tri-County
Paving also had a chance to advocate for their permits at county
meetings, and “certainly conducting open community meetings and
giving affected parties the opportunity to speak on behalf of
their project is constitutionally sufficient.” Id. at 437.
As for postdeprivation process, the Fourth Circuit
explained that “[p]ostdeprivation process was likewise
available. And a ‘due process violation actionable under § 1983
is not complete when the deprivation occurs; it is not complete
unless and until the State fails to provide due process.’” Id.
(quoting Fields, 909 F.2d at 98). With that, the court noted
that the plaintiff failed to take advantage of the numerous
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postdeprivation mechanisms available to it, to include “remedies
available to it in the state courts . . . .” Id. at 438. “[The
plaintiff] chose not to pursue any of these avenues of relief in
the state courts. It therefore cannot complain now that the
state did not provide adequate procedures.” Id.; see also Raynor
v. Town of Chapel Hill, No. 1:18CV291, 2019 WL 503443, at *8
(M.D.N.C. Feb. 8, 2019) (“Plaintiffs submitted a written
application for a Certificate, met with Board members informally
in advance of consideration of the Certificate, attended public
meetings to present their claim, received a decision from which
they did not appeal, submitted a new application that was later
denied, and appealed the adverse decision to the Board of
Adjustments (where they had success), with a further ability to
appeal to the state courts.”).
There are several similarities between the facts in TriCounty Paving and Plaintiffs’ allegations.
Beginning with predeprivation due process, Plaintiffs were
given access to Defendant Robinson, who was then the Director of
Planning and Zoning for the City of Albemarle. (Compl. (Doc. 1)
¶¶ 7, 31.) Mr. Nance was also given the opportunity to speak at
several City Council meetings, to include the May 15, 2017
meeting when he again asked to have the Coordination Form
approved. (Id. ¶¶ 18, 42.) Indeed, Plaintiffs allege that
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Mr. Nance “has appeared at several City Council meetings and
before city boards and departments seeking clarification of
zoning ordinances and other questions involving city ordinances
and other questions involving city ordinances and regulations.”
(Id. ¶ 43.) Plaintiffs were also allowed to apply multiple
times, as in Tri-County Paving. (Id. ¶¶ 71, 73.) “The procedures
due in zoning cases, and by analogy due in cases such as this
one involving regulation of land use through general police
powers, are not extensive.” Tri-County Paving, 281 F.3d at 436.
Thus, the facts alleged by Plaintiffs support a reasonable
inference that the predeprivation process was sufficient in this
case.
This court also finds that the postdeprivation process was
sufficient, although, as in Tri-County Paving, Plaintiffs do not
allege that they took advantage of it. The City of Albemarle has
established a Planning and Zoning Appeals Board that, among
other duties,
shall hear and decide requests for variances and
appeals of decisions of administrative officials
charged with enforcement of the ordinance. As used in
this section, the term “decision” includes any final
and binding order, requirement, or determination. The
Planning and Zoning Appeals Board shall follow quasijudicial procedures when deciding appeals and requests
for variances. The Board shall hear and decide all
matters upon which it is required to pass under any
statute or ordinance that regulates land use or
development.
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https://codelibrary.amlegal.com/codes/albemarle/latest/albemarle
_nc/0-0-0-22405#JD_21.010 (Albemarle Ordinance § 21.010)
(emphasis added). Further,
[e]very quasi-judicial decision of the Planning and
Zoning Appeals Board shall be subject to review by the
Superior Court by proceedings in the nature of
certiorari pursuant to G.S. 160A-393. A petition for
review shall be filed with the Clerk of Superior Court
by the later of 30 days after the decision is
effective, or after a written copy thereof is given in
accordance with G.S. 160A-393(c)(1). When first-class
mail is used to deliver notice, three days shall be
added to the time to file the petition.
https://codelibrary.amlegal.com/codes/albemarle/latest/albemarle
_nc/0-0-0-22436 (Albemarle Ordinance § 21.012). Finally,
Plaintiffs also had the ability to appeal beyond any City
organization and enter the state courts by appealing to the
superior court where:
‘the superior court sits as an appellate court, and
not as a trier of facts,’” Bailey & Assocs., Inc. v.
Wilmington Bd. of Adjustment, 202 N.C. App. 177, 189,
689 S.E.2d 576, 585 (2010) (quoting Overton v. Camden
Cnty., 155 N.C. App. 391, 393, 574 S.E.2d 157, 160
(2002)), and its scope of review is limited to the
following:
“(1) review the record for errors of law;
(2) ensure that procedures specified by law
in both statute and ordinance are followed;
(3) ensure that appropriate due process
rights of the petitioner are protected,
including the right to offer evidence,
cross-examine witnesses, and inspect
documents; (4) ensure that the decision is
supported by competent, material, and
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substantial evidence in the whole record;
and (5) ensure that the decision is not
arbitrary and capricious.”
NCJS, LLC v. City of Charlotte, 255 N.C. App. 72, 76, 803 S.E.2d
684, 688 (2017) (quoting Cary Creek Ltd. v. Town of Cary, 207
N.C. App. 339, 341–42, 700 S.E.2d 80, 82–83 (2010)).
Plaintiffs allege that on April 5, 2017, “Director of
Planning & Development Services Kevin Robinson issued a letter
to Chucky Nance denying the coordination form . . . .” (Compl.
(Doc. 1) ¶ 33.) Mr. Nance did return to the City Council meeting
on May 15, 2017, but Plaintiffs do not allege that they ever
appealed Defendant Robinson’s decision to the Zoning Board or to
the Superior Court. “[The plaintiffs] chose not to pursue any of
these avenues of relief in the state courts. [They] therefore
cannot complain now that the state did not provide adequate
procedures.” Tri-County Paving, 281 F.3d at 438.
Finally, there is one notable difference between Tri-County
Paving and the present case. Although Plaintiffs allege that
Defendants did not follow their own procedures in some regards,
(Compl. (Doc. 1) ¶ 94), and that Defendants may have had
ulterior motives for doing so, (id. ¶ 24), Plaintiffs do not
allege that those procedures deprived them of their ability to
appeal Defendants’ decisions to the superior court where such
motivations would not have been present. See Sunrise Corp. of
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Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322, 328 (4th
Cir. 2005) (“But we have made it clear that a violation of state
law is not tantamount to a violation of a federal right.”).
“[P]rocedural due process does not require certain results
— it requires only fair and adequate procedural protections.”
Tri-County Paving, 281 F.3d at 436. The procedures available to
Plaintiffs regarding the Coordination Form were adequate. For
that reason, this court finds that Plaintiffs have failed to
plausibly allege any procedural due process violations,12 and
this court will dismiss Plaintiffs’ Procedural Due Process
claims on their merits.
b.

Qualified Immunity

In addition, this court will dismiss Plaintiffs’ Procedural
Due Process claims on qualified immunity grounds.
Plaintiffs argue, correctly, that “qualified immunity
shields government officials from personal liability” under
§ 1983 “insofar as their conduct does not violate clearly
established statutory constitutional rights of which a

What is more, Plaintiffs eventually received the
Coordination Form approval they sought. (Compl. (Doc. 1) ¶ 73.)
“While it is true that there were several levels of judicial and
administrative review, plaintiffs received the very remedy they
sought, the permit to develop the property.” Sunrise Corp. of
Myrtle Beach, 420 F.3d at 328.
12

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reasonable person would have known.” (Pls.’ First Resp. (Doc.
13) at 13; Pls.’ Second Resp. (Doc. 16) at 9 (citing Toomer v.
Garrett, 155 N.C. App 462, 473, 574 S.E.2d 76, 86 (2002)).) In
support of their claim that the rights allegedly violated were
clearly established, Plaintiffs argue that “[b]y requiring the
government to follow appropriate procedures when its agents
decide to ‘deprive any person of life, liberty, or property,’
the Due Process Clause promotes fairness in such decisions.”
(Pls.’ Second Resp. (Doc. 16) at 10 (citing Daniels v. Williams,
474 U.S. 327, 331 (1986)).)
Plaintiffs’ general recitation of the protections of the
Due Process Clause does not, however, demonstrate that the right
Defendants allegedly violated was clearly established at the
time they acted. Plaintiffs’ discussion of the Due Process
Clause in their response to both motions to dismiss is limited
to a discussion of substantive due process guarantees. (See
Pls.’ First Resp. (Doc. 13) at 14 (“In general, substantive due
process protects the public from government action that [1]
unreasonably deprives them of [2] a liberty or property
interest.”); Pls.’ Second Resp. (Doc. 16) at 10 (“And it has
long been held that state officers are not entitled to
intentionally submit false evidence or withhold material
evidence from a tribunal.”).) This is a claim for procedural due
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process, not substantive due process, and thus, Plaintiffs’
recitation of this precedent is inapposite. Plaintiffs do not
offer additional precedent which would support a finding that
there was a clearly established procedural due process right
based on the specific context in which Plaintiffs’ claims arose.
Mullenix, 577 U.S. at 12 (finding that “[t]he dispositive
question is whether the violative nature of particular conduct
is clearly established” (internal quotations omitted)).
Because Plaintiffs’ Complaint has not alleged an existing
precedent which could “place[] the statutory or constitutional
question beyond debate,” al-Kidd, 563 U.S. at 741, this court
finds that Plaintiffs’ Procedural Due Process claims are barred
by qualified and will dismiss them.
4.

Substantive Due Process

This court also finds that Plaintiffs have failed to
plausibly allege a substantive due process violation as to all
Defendants both because Plaintiffs do not plausibly allege a
claim upon which relief can be granted and because qualified
immunity protects Defendants from liability.
a.

Merits of Plaintiffs’ Substantive Due
Process Claims

In supplemental briefing submitted to this court regarding
Plaintiffs’ substantive due process claims, Plaintiffs argue

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that “Plaintiffs claim a liberty and property interest, to be
free from the arbitrary and personal abuse of executive power,”
which was “motivated by bad faith and employ[ed] the powers of
the state and its instrumentalities to oppress, target, injure,
and try to obtain plaintiffs’ property through the unlawful use
of state action.” (Pls.’ Mem. of Law Regarding Specific Liberty
or Property Interest that is the Source of Substantive Due
Process Right (“Pls.’ Suppl. Mem.”) (Doc. 21) at 2.)
The Supreme Court has “emphasized time and again that
‘[t]he touchstone of due process is protection of the individual
against arbitrary action of government,’” Cnty. of Sacramento v.
Lewis, 523 U.S. 833, 845 (1998) (quoting Wolff v. McDonnell, 418
U.S. 539, 558 (1974)), which includes “the exercise of power
without any reasonable justification in the service of a
legitimate governmental objective.” Id. at 846. “[T]he
substantive component of the Due Process Clause is violated by
executive action only when it can properly be characterized as
arbitrary, or conscience shocking, in a constitutional sense.”
Id. at 847 (internal quotations and citations omitted). The
“constitutional concept of conscience shocking duplicates no
traditional category of common-law fault, but rather points
clearly away from liability, or clearly toward it, only at the
ends of the tort law’s spectrum of culpability.” Id. at 848. As
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a result, “the due process guarantee does not entail a body of
constitutional law imposing liability whenever someone cloaked
with state authority causes harm,” id., and “conduct intended to
injure in some way unjustifiable by any government interest is
the sort of official action most likely to rise to the
conscience-shocking level,” id. at 849.
This court must first determine whether Plaintiffs
“possessed a property interest . . . that is cognizable under
the Fourteenth Amendment’s Due Process Clause. If there is no
cognizable property interest, there is no need to reach the
question of whether a purported deprivation was arbitrary or
capricious.” Gardner v. City of Baltimore Mayor & City Council,
969 F.2d 63, 68 (4th Cir. 1992) (internal citations omitted).
This property right determination is governed by state law. Id.
“As the Supreme Court has explained: ‘To have a property
interest in a benefit, a person clearly must have more than an
abstract need or desire for it. He must have more than a
unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it.’” Id. (quoting Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)).
Several circuits have applied Roth’s claim of
entitlement standard to substantive due process
challenges to municipal land-use decisions. Under this
approach, whether a property-holder possesses a
legitimate claim of entitlement to a permit or
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approval turns on whether, under state and municipal
law, the local agency lacks all discretion to deny
issuance of the permit or to withhold its approval.
Any significant discretion conferred upon the local
agency defeats the claim of a property interest. Under
this standard, a cognizable property interest exists
only when the discretion of the issuing agency is so
narrowly circumscribed that approval of a proper
application is virtually assured. Moreover, the
standard focuses on the amount of discretion accorded
the issuing agency by law, not on whether or to what
degree that discretion is actually exercised.
Id. (internal quotation marks omitted). Further, even “if in a
particular case, objective observers would estimate that the
probability of issuance was extremely high, the opportunity of
the local agency to deny issuance suffices to defeat the
existence of a federally protected property interest.” Id.
As explained by the Gardner court, this rule is consistent
with the Fourth Circuit’s decision in Scott v. Greenville
County, 716 F.2d 1409 (4th Cir. 1983), in which the Fourth
Circuit determined that the county was required by state law to
issue a building permit, because in Scott, state law did not
leave room for any discretion by a state executive agency.
Gardner, 969 F.2d at 68. Consistent with the court’s holding in
Scott, the court in Gardner held that where municipal
authorities lack discretion to deny issuance of a permit, a
property right exists, but that where state law permits
authorities to use discretion to refuse to issue a permit, there

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is “no protectible property interest in the permit.” Gardner,
969 F.2d at 69; accord Pulte Home Corp. v. Montgomery Cnty., 909
F.3d 685, 692 (4th Cir. 2018) (“Just last year, in Siena Corp.
v. Mayor & City Council of Rockville, Maryland, 873 F.3d 456,
463 (4th Cir. 2017), this court reiterated the longstanding rule
that any ‘significant discretion’ left to ‘zoning authorities
defeats the claim of a property interest.’”).
Plaintiffs argue that the City was aware of their plans to
renovate the Property for affordable housing and that
“defendants in a coordinated effort, through Chief Bowen,
notified Plaintiffs they were required to abate an alleged
nuisance within 45 days.” (Pls.’ Suppl. Mem. (Doc. 21) at 2.)
Moreover, Plaintiffs argue that “Defendants required plaintiffs
to abate the alleged nuisance while coordinating to deny them
permission to improve the property, unlawfully causing the
revocation of already issued permits, and sought to obtain the
property for the City when that was not an option available
under the statute.” (Id. at 2-3.)
This court disagrees, finding that Plaintiffs did not have
a property interest in the Coordination Form or the building

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permits they sought.13 Plaintiffs do not allege, nor do they
argue in their briefing, that they were entitled to the
Coordination Form as a matter of state law. Plaintiffs do allege
that multi-family housing is permitted in the City’s Central
Business District and that Defendants did not provide a legal
reason for denying the Coordination Form. (Compl. (Doc. 1)
¶ 94.) Plaintiffs are correct that multi-family housing is
permitted in the Central Business District, see Albemarle
Ordinances § 92.083(B)(44), https://codelibrary.amlegal.com/
codes/albemarle/latest/albemarle_nc/0-0-0-9952#JD_92.083, but
that such buildings are permitted does not mean Defendants had
no discretion in granting the Coordination Form.
The Albemarle Ordinances do not specifically mention a
Coordination Form. However, under Chapter 92, the City’s Zoning
Regulations, the ordinances state that “[a] zoning vested right
shall be deemed established upon the valid approval, or
conditional approval, by the City Council as applicable, of a

The property interest analysis for a Fifth Amendment
taking is not the same as the analysis for substantive due
process claims. See Scott, 716 F.2d at 1421 (“Although we view
Scott as having held an entitlement to permit issuance which was
sufficiently a ‘species of property’ to require constitutional
protection, the permit, until it is at least actually in hand,
is not in the nature of interests the deprivation of which is
encompassed by the Fifth Amendment ‘takings’ doctrine.”).
13

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site specific development plan, following notice and public
hearing.” Albemarle Ordinance § 92.122,
https://codelibrary.amlegal.com/codes/albemarle/latest/albemarle
_nc/0-0-0-10516. A “Zoning Vested Right” is defined as “[a]
right pursuant to G.S. 160A-385.1 to undertake and complete the
development and use of property under the terms and conditions
of an approved site specific development plan.” Albemarle
Ordinance § 92.121, https://codelibrary.amlegal.com/codes/
albemarle/latest/albemarle_nc/0-0-0-10510. This ordinance
language indicates that the Coordination Form is part of a “site
specific” development plan, and that plan is subject to approval
of the City Council. This is sufficient discretion to conclude
that Plaintiffs did not have a vested property right in the
Coordination Form. Gardner, 969 F.2d at 68.
This court reaches the same conclusion after reviewing the
relevant state law regarding vested property rights and zoning
ordinance changes. At the time Plaintiffs sought the
Coordination Form, there were three ways for a
person to establish a vested right to develop property
in North Carolina. Two are statutory and one arises
under the common law. The first involves obtaining a
building permit prior to the passage of an
ordinance. N.C. Gen. Stat. § 160A–385(b). The second
requires obtaining approval for a “site-specific
development plan” from a city after a proper public
hearing. Id. and N.C. Gen. Stat. § 160A–385.1.
Finally, there exists a common law right to develop
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property if (1) the property owner makes substantial
expenditures on a property prior to the passage of an
ordinance, (2) these expenditures were made in good
faith, (3) the property owner acted with reasonable
reliance on a valid governmental approval for the
project, and (4) complying with the new ordinance
would harm the landowner. Koontz v. Davidson County
Bd. of Adjustment, 130 N.C. App. 479, 481, 503 S.E.2d
108, 109, rev. denied, 349 N.C. 529, 526 S.E.2d 177
(1998).
Molamphy v. Town of S. Pines, No. 1:02CV00720, 2004 WL 419789,
at *15 (M.D.N.C. Mar. 3, 2004);14 see also Raynor, 2019 WL
503443, at *7 (“In Mays-Ott, Inc. v. Town of Nags Head, 751 [F.]
Supp. 82 (E.D.N.C. 1990), the court found that the plaintiff had
established a claim for deprivation of a vested property right
where the plaintiff had a valid permit and had made substantial
expenditures in reliance on the permit.”); Griffin v. Town of
Unionville, No. 3:05-cv-514-RJC, 2008 WL 697634, at *8 (W.D.N.C.
Mar. 11, 2008), aff’d, 338 F. App’x 320 (4th Cir. 2009); MLC
Auto., LLC v. Town of S. Pines, No. 1:05CV1078, 2007 WL 9757526,
at *8 (M.D.N.C. May 15, 2007); Browning-Ferris Indus. of S.
Atl., Inc. v. Wake Cnty., 905 F. Supp. 312, 318–19 (E.D.N.C.
1995). Though these state laws deal with zoning ordinances, the
Coordination Form appears to be a function of the City of
Albemarle’s Planning and Development Services, (Compl. (Doc. 1)

The statutory provisions cited by Molamphy were repealed
after February 2019, when Plaintiffs were finally granted their
Coordination Form. See 2019 N.C. Sess. Laws 2019-111 (S.B. 355).
14

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¶ 31), making it a function of the City’s Zoning powers. None of
the three ways of vesting property rights in a building permit
applies to Plaintiffs’ case.
First, Plaintiffs were not granted the Coordination Form
only to have Defendants rescind it or make a different zoning
determination, and therefore, no permit was issued prior to
passage of an ordinance. Second, Plaintiffs never received
approval for a “site specific development plan” from the City
after a proper public hearing, meaning the second statutory
provision did not apply. Third, Plaintiffs did not make
substantial improvements before the Coordination Form was
denied. Instead, Plaintiffs began to prepare the Property for
renovations after the Coordination Form was denied one time and
after Plaintiffs did not receive a response from Defendants
about Plaintiffs’ proposed renovation plans. (Compl. (Doc. 1)
¶¶ 27, 33, 38.) Plaintiffs’ “attempts to blame [D]efendants for
[their] failure to vest [their] property right cannot succeed in
light of the [allegations] in front of the Court.” Molamphy,
2004 WL 419789, at *16.
Accordingly, this court finds Plaintiffs have failed to
plausibly allege a constitutionally protected property interest
in the City of Albemarle Coordination Form or the building
permits. Plaintiffs’ substantive due process claim should be
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dismissed.15 See Griffin, 2008 WL 697634, at *8 (“Based on the
record in this case, the Court concludes that the plaintiffs’
1997 [Special use permit (“SUP”)] did not give them a zoning
permit for an industrial solid waste landfill. Even if they did
have a proper SUP, however, the plaintiffs have never obtained
any of the other authorizations for an industrial solid waste
landfill that are required by North Carolina law. Therefore,
they cannot have spent money in good faith or in reasonable
reliance on their SUP, and cannot have a vested right to such a
landfill.”).
b.

Qualified Immunity

Alternatively, this court will dismiss Plaintiffs’
Substantive Due Process claims on qualified immunity grounds.
Citing State v. Joyner, 286 N.C. 366, 371, 211 S.E.2d 320,

Even if Plaintiffs had some entitlement to the
Coordination Form, a substantive due process violation only
exists if the “State deprivation of a protected property
interest violates substantive due process only if it is ‘so
arbitrary and irrational, so unjustified by any circumstance or
governmental interest, as to be literally incapable of avoidance
by any pre-deprivation procedural protections or of adequate
rectification by any post-deprivation state remedies.’” Siena
Corp. v. Mayor & City Council of Rockville, 873 F.3d 456, 463-64
(4th Cir. 2017) (quoting Rucker v. Harford Cnty., 946 F.2d 278,
281 (4th Cir. 1991) (emphasis added). As addressed infra Section
III.B.3, Plaintiffs could have appealed the zoning decisions to
superior court, a body independent of and distinct from
Defendants and their alleged ulterior motives.
15

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323 (1975), Plaintiffs argue that “[s]ubstantive due process
. . . demands that the law shall not be unreasonable, arbitrary
or capricious, and that the law be substantially related to the
valid object sought to be obtained.” (Pls.’ First Resp. (Doc.
13) at 14; Pls.’ Second Resp. (Doc. 16) at 9.) Plaintiffs also
cite Toomer v. Garrett, 155 N.C. App. 462, 474, 574 S.E.2d 76,
87 (2002) for the proposition that “[a]rbitrary acts that have
an abusive purpose and lack legitimate justification violate due
process.” (Pls.’ First Resp. (Doc. 13) at 14; Pls.’ Second Resp.
(Doc. 16) at 9-10.) Plaintiffs argue that, regarding Defendant
Shoaf’s conduct specifically, “it has long been held that state
officers are not entitled to intentionally submit false evidence
or withhold material evidence from a tribunal.” (Pls.’ Second
Resp. (Doc. 16) at 10 (citing Taylor v. Deaver, No. 5:11-CV-341H, 2012 WL 12905868 (E.D.N.C. Sept. 28, 2012); Evans v.
Chalmers, 703 F.3d 636 (4th Cir. 2012)).) Plaintiffs argue that
“[t]he above cases clearly demonstrate settled law well before
this controversy arose” and that “all defendants should
reasonably know that . . . arbitrary and capricious acts under
the color of law violate the plaintiffs federally protected
rights.” (Pls.’ First Resp. (Doc. 13) at 14.)
This court disagrees. Because “[t]he dispositive question
is whether the violative nature of particular conduct is clearly
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established,” Mullenix, 577 U.S. at 12 (internal quotations and
citations omitted), Plaintiffs’ cited precedents are
inapplicable, as the facts are distinct from those in this case.
In Chalmers, former members of a university lacrosse team
alleged police officers had mishandled false rape charges made
against them. 703 F.3d at 641-42. In Taylor, a man who was
convicted of murder alleged that defendants, analysts at the
state’s Bureau of Investigation, had intentionally
misrepresented test results conducted as part of the
investigation. 2012 WL 12905868, at *3. In Toomer, a former
state government employee alleged that defendants had improperly
disseminated the contents of his state personnel file. 155 N.C.
App. at 466, 574 S.E.2d at 82. In Joyner, a criminal defendant
who had been convicted of operating a building materials salvage
yard in violation of a zoning ordinance alleged that the zoning
ordinance violated the Due Process clause. 286 N.C. at 371-72,
211 S.E.2d at 323-24. The facts in the cases cited by Plaintiffs
are too dissimilar to those in the instant case, in which
Plaintiffs were denied a city Coordination Form while
simultaneously addressing nuisance allegations related to the
Property, to support a reasonable inference that the right
claimed by Plaintiffs was clearly established at the time of the
alleged violation.
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Accordingly, this court finds that Plaintiffs have not
identified a precedent which establishes that the substantive
Due Process right asserted by Plaintiffs was clearly established
at the time of the violation. This court will dismiss
Plaintiffs’ claims, as they are also barred by qualified
immunity.
5.

Fifth Amendment Taking

This court finds that Plaintiffs have failed to allege a
taking under the Fifth Amendment of the U.S. Constitution
against any Defendant.
The Fifth Amendment forbids the taking of private property
“for public use, without just compensation.” U.S. Const. amend.
V. The Takings Clause applies to the states. See Chicago, B. &
Q. R. Co. v. City of Chicago, 166 U.S. 226, 262-63 (1897).
In addition to the “paradigmatic taking requiring just
compensation is a direct government appropriation or physical
invasion of private property,” there are two kinds of
“categorial” regulatory takings. Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528, 537–38 (2005). The first involves physical
invasion of the property — when a physical invasion occurs,
there is a taking “no matter how slight the invasion or how
weighty the public interest advanced to support them.” Front
Royal, 135 F.3d at 285.
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Plaintiffs here do not allege such a physical taking, but
instead allege the second type of regulatory taking, which
involves government “regulations that deny ‘all economically
beneficial or productive use of land . . . .’” Id. (quoting
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992)).
[I]t is clear that a taking exists where the owner of
real property is forced to “sacrifice all economically
beneficial uses . . . , that is, to leave his property
economically idle.” Lucas, 505 U.S. at 1019. It is
also clear that temporary, but total, regulatory
takings are compensable. See First English Evangelical
Lutheran Church v. County of Los Angeles, 482 U.S.
304, 321 (1987).
Id.16
“A requirement that a person obtain a permit before
engaging in a certain use of his or her property does not itself

Beyond those “per se” regulatory takings, Lingle, 544
U.S. 538, there is also a category of regulatory takings that is
more nuanced. Those takings are less than total and are assessed
according to the factors “set forth in Penn Central Transp. Co.
v. New York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L.Ed.2d 631
(1978).” Lingle, 544 U.S. at 538. “To determine whether a taking
has occurred, courts consider the following: (1) the economic
impact of the regulation; (2) the extent to which the regulation
interferes with distinct investment-backed expectations; and (3)
the character of the governmental action.” Adams v. Vill. of
Wesley Chapel, No. 3:03cv411, 2006 WL 2689376, at *3 (W.D.N.C.
Sept. 18, 2006), aff’d, 259 F. App’x 545 (4th Cir. 2007).
Plaintiffs do not allege any facts allowing the court to
determine if they have plausibly alleged a taking in this
category. Plaintiffs’ allegations expressly invoke the type of
taking that denies all economic benefit. (See, e.g., Compl.
(Doc. 1) ¶ 82.) Therefore, the court does not analyze this type
of taking.
16

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‘take’ the property in any sense . . . .” United States v.
Riverside Bayview Homes, Inc., 474 U.S. 121, 127 (1985); Nollan
v. Cal. Coastal Comm’n, 483 U.S. 825, 845 n.2 (1987). “Moreover,
even if the permit is denied, there may be other viable uses
available to the owner. Only when a permit is denied and the
effect of the denial is to prevent ‘economically viable’ use of
the land in question can it be said that a taking has occurred.”
Riverside Bayview Homes, 474 U.S. at 127. “As a general rule, a
delay in obtaining a building permit is not a taking but a noncompensable incident of ownership.” Sunrise Corp. of Myrtle
Beach, 420 F.3d at 330.
Plaintiffs have failed to plausibly allege that Defendants
took the Property without compensation in violation of the Fifth
Amendment. Plaintiffs allege that “the Defendants were demanding
that Plaintiffs address conditions on the property, while at the
same time preventing Plaintiffs from making the changes they
were demanding.” (Compl. (Doc. 1) ¶ 52.) Plaintiffs allege that
shortly after the tenants were evicted on April 21, 2017,
Mr. Nance began removing furniture, wallpaper, carpet, and
pictures from the Property to satisfy the City; as a result,
“the property could not have been reopened until renovations
were made.” (Id. ¶ 38.) Plaintiffs claim “the Defendants
controlled not only the ability to improve the property, the
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ability to stop any such improvements, the ability to threaten a
nuisance lawsuit for failure to improve the property . . . .”
(Id. ¶ 53.)
However, despite Plaintiffs’ allegations to the contrary,
Defendants did not place the Property in a condition where it
could not be reopened until the Coordination Form was approved –
Mr. Nance did. Plaintiffs first request for the Coordination
Form was denied on April 5, 2017. (Id. ¶ 33.) Mr. Nance began
removing furnishings, rendering the Property uninhabitable,
after April 21, 2017. (Id. ¶ 38.) Defendants never asked
Plaintiffs to improve the Property or initiate renovations
before being issued a Coordination Form. The Bowen Letter never
mentions a need to improve the physical condition of the
Property but cites the tenants and their criminal conduct as the
source of the nuisance. (Bowen Letter (Doc. 1-1).) In his
response to Defendant Bowen’s letter, Mr. Nance proposed that he
renovate the Property and evict the tenants; he also asked for a
response in five business days as to whether that plan would be
acceptable. (Nance Letter (Doc. 1-2) at 1–2.) Plaintiffs allege
that Defendants did not respond. (Compl. (Doc. 1) ¶ 27.)
In fact, as Plaintiffs allege repeatedly, Defendants stated
that they wanted to see the Property demolished, not renovated.
(Compl. (Doc. 1) ¶¶ 31, 40, 52.) Plaintiffs themselves made the
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decision to begin renovations before being granted the
Coordination Form or appealing the first denial. By requiring
Plaintiffs to get an approved Coordination Form, Defendants did
not deprive the Property of all economic value.17 See United
States v. Locke, 471 U.S. 84, 107 (1985) (“Regulation of
property rights does not ‘take’ private property when an
individual’s reasonable, investment-backed expectations can
continue to be realized as long as he complies with reasonable
regulatory restrictions the legislature has imposed.”).
Plaintiffs can also not claim a taking of any property
interest in the Coordination Form itself. A building permit
itself can sometimes constitute a property interest. “Where a
previously valid permit has issued and construction begun, a
subsequent rezoning that effectively revokes permission to build
is a confiscatory taking of the permit itself.” Scott, 716 F.2d
at 1421. However, “the permit, until it is at least actually in
hand, is not in the nature of interests the deprivation of which
is encompassed by the Fifth Amendment ‘takings’ doctrine.” Id.
Plaintiffs never had the Coordination Form “in hand,” (Compl.

Plaintiffs allege they were seeking renovations to
“Building 3” of the Property. (Compl. (Doc. 1) ¶ 30.) This
suggests there were multiple structures on the Property that
were not being renovated, further suggesting that the Property
was not deprived of all viable economic use.
17

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(Doc. 1) ¶ 87), meaning its denial cannot qualify as a taking
under the Fifth Amendment.
That Stanly County revoked their permits after Defendants
denied Plaintiffs’ City Coordination Form does not mean that
Defendants took Plaintiffs’ property interest in those county
permits. Those permits were contingent on approval of the City
of Albemarle Coordination Form. (Compl. (Doc. 1) ¶ 34.) Those
permits were not “in hand,” nor could Defendants be held
responsible for the actions of an independent political entity.
See Tri-County Paving, 281 F.3d at 437 (“However, [the
plaintiff] never submitted a complete application — it lacked a
written application, a wastewater permit, and an air quality
permit. The County was under no obligation to issue a building
permit without the required documentation and permits.”).18
Finally, the fact that Plaintiffs were eventually granted a
Coordination Form in February 2019 also renders their taking
claim implausible as the delay did not destroy all economically
viable use. As the Supreme Court held in the context of a
regulatory denial of a permit,

The letter from the City’s Section 8 inspector was also
not a permit, but a letter expressing an opinion that if
renovations were completed, the Property could host Section 8
tenants. (Compl. (Doc. 1) ¶ 16.) That opinion letter was not a
“permit in hand” that created a vested property interest.
18

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even if the [plaintiffs’] ability to sell their
property was limited during the pendency of the
condemnation proceeding, [they] were free to sell or
develop their property when the proceedings ended.
Mere fluctuations in value during the process of
governmental decisionmaking, absent extraordinary
delay, are “incidents of ownership. They cannot be
considered as a ‘taking’ in the constitutional sense.”
Agins v. City of Tiburon, 447 U.S. 255, 263 n.9 (1980),
abrogated on other grounds by Lingle v. Chevron U.S.A. Inc., 544
U.S. 528 (2005) (emphasis added).19
Notably, several courts have held that much
longer delays are not extraordinary. See, e.g.,
Williamson County Reg’l Planning Comm’n v. Hamilton
Bank of Johnson City, 473 U.S. 172 (1985) (no
temporary taking despite eight year delay); Tahoe–
Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning
Agency, 535 U.S. 302, 306 (2002) (thirty-two month
delay not extraordinary); Wyatt v. United States, 271
F.3d 1090 (Fed. Cir. 2001) (same for seven year
delay); Dufau v. United States, 22 Cl. Ct. 156, 163
(Cl. Ct. 1990) (permit delay of sixteen months did not
constitute temporary taking); Appolo Fuels, Inc. v.
United States, 381 F.3d 1338, 1351 (Fed. Cir. 2004)
(eighteen-month delay was “far short of
extraordinary”).

In Lingle v. Chevron U.S.A., Inc., 544 U.S. 528
(2005), the Supreme Court clarified that, contrary to
suggestions in Agins, the lack of a nexus between a
legitimate state interest and government regulation did not
in and of itself effect a taking; instead, government
regulation lacking such a nexus was properly subject to
challenge under the Due Process Clause. Importantly, Lingle
did not overrule other holdings of Agins or affect
discussion of “delay” or “extraordinary delay” at all in
the opinion. Res. Invs., Inc. v. United States, 85 Fed. Cl.
447, 494 n.70 (2009).
19

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LXR RS V, LLC v. Mun. of Norristown, Case No. 2:19-cv-01397-JDW,
2019 WL 4930157, at *4 (E.D. Pa. Oct. 7, 2019).
Plaintiffs first sought approval of the Coordination Form
on April 5, 2017. (Compl. (Doc. 1) ¶ 33.) Plaintiffs were
granted an approved form in February 2019. (Id. ¶ 73.) The delay
of roughly 22 months is far shorter than the periods of delay
that other courts found were not extraordinary.20
For all these reasons, this court finds that Plaintiffs
have failed to plausibly allege a Takings Clause claim under the
Fifth Amendment of the U.S. Constitution.
6.

Civil Conspiracy

Finally, this court finds that Plaintiffs have failed to
plausibly allege a civil conspiracy by Defendants to deprive
Plaintiffs of any constitutional rights.

Plaintiffs also cannot plausibly allege that the pendency
of the nuisance action, even if procedurally flawed, was a
compensable taking.
20

The Town’s actions to abate a nuisance were reasonable
— if mistaken — uses of its police power that did
nothing to deprive the Owners of any property right,
even if the cottages were rendered valueless.
See Keystone Bituminous Coal Ass’n v. DeBenedictis,
480 U.S. 470, 492 n.22 (1987) (“Courts have
consistently held that a State need not provide
compensation when it diminishes or destroys the value
of property by stopping illegal activity or abating a
public nuisance.”).
Sansotta, 724 F.3d at 541.
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“To establish a civil conspiracy under § 1983, [the
plaintiffs] must present evidence that the [defendants] acted
jointly in concert and that some overt act was done in
furtherance of the conspiracy which resulted in [the
plaintiffs’] deprivation of a constitutional right . . . .”
Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996).
Other courts also have emphasized the need to prove a
deprivation of a constitutional right or privilege.
See, e.g., Askew v. Millerd, 191 F.3d 953, 957 (8th
Cir. 1999); Villanueva v. McInnis, 723 F.2d 414, 418
(5th Cir. 1984) (“[I]t remains necessary to prove an
actual deprivation of a constitutional right; a
conspiracy to deprive is insufficient.”); accord Byrd
v. Hopson, 265 F. Supp. 2d 594, 599 (W.D.N.C. 2003)
(Under North Carolina state law, “there is no
independent cause of action for [common law] civil
conspiracy; the claim can arise only where there is an
underlying claim for unlawful conduct.”), aff’d in
part and rev’d in part on other grounds, 108 Fed.
Appx. 749 (4th Cir. 2004).
Hicks v. Mount Airy-Surry Cnty. Airport Auth., No. 1:15-CV-38,
2015 WL 8484453, at *9–10 (M.D.N.C. Dec. 9, 2015) (dismissing
§ 1983 civil conspiracy claims after finding that underlying
§ 1983 actions should be dismissed).
This court has found that Plaintiffs have failed to
plausibly allege First Amendment, Fifth Amendment Taking, or
Fourteenth Amendment procedural due process, equal protection,

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or substantive due process claims. Therefore, Plaintiffs’ § 1983
civil conspiracy claim should be dismissed as well.21
Additionally, though the doctrine does not apply to
Defendant Shoaf, the intracorporate immunity doctrine bars any
conspiracy claim against Defendants City, Michael, Bowen, and
Robinson. “The intracorporate conspiracy doctrine recognizes
that a corporation cannot conspire with its agents because the
agents’ acts are the corporation’s own.” Painter’s Mill Grille,
LLC v. Brown, 716 F.3d 342, 352 (4th Cir. 2013). “The doctrine
is applicable to municipalities. Moreover, merely suing the
officers, employees, or agents in their individual capacities
does not change the result.” Fox v. City of Greensboro, 807 F.
Supp. 2d 476, 499 (M.D.N.C. 2011); see also Buschi v. Kirven,
775 F.2d 1240, 1252 (4th Cir. 1985). Plaintiffs do not contend
that Defendants Michael, Bowen, and Robinson were all employees
of the Defendant City; instead they argue that they acted

The Fourth Circuit has noted it is possible that a
claim of civil conspiracy can survive after an officer was
found not liable on a related but distinct constitutional
claim. See Hinkle, 81 F.3d at 421 (noting that the claim of
a civil conspiracy to deny appellants access to the courts
“is not mooted by the mere fact Officer Lake was found not
liable for using excessive force against Wilson”). Though
Defendants’ nuisance suit was dismissed on subject matter
jurisdiction grounds, Plaintiffs do not base their federal
claims on the nuisance suit but instead on the same facts
alleged in their underlying § 1983 claims. (Compl. (Doc. 1)
¶¶ 105–09.)
21

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according to personal motives and exceeded their authority.
(Pls.’ First Resp. (Doc. 13) at 19.) While it is true that
intracorporate immunity does not apply “where a co-conspirator
possesses a personal stake independent of his relationship to
the corporation,” or “the agent’s acts were not authorized by
the corporation,” Painter’s Mill Grille, 716 F.3d at 353, this
court does not find that Plaintiffs’ allegations, particularly
since they fail to state any underlying claims, support those
exceptions.
D.

Plaintiffs’ State Claims

With the only claims over which this court had original
jurisdiction now dismissed, this court will dismiss Plaintiffs’
state law claims (Claims Two, Eight, Nine, Ten, and Twelve). A
district court may dismiss a state law claim brought before it
under supplemental jurisdiction if “the district court has
dismissed all claims over which it has original jurisdiction.”
28 U.S.C. § 1367(c)(3). The decision to do so is completely
within the court’s discretion. Carlsbad Tech., Inc. v. HIF Bio,
Inc., 556 U.S. 635, 639 (2009); Arbaugh v. Y & H Corp., 546 U.S.
500, 514 (2006) (“[W]hen a court grants a motion to dismiss for
failure to state a federal claim, the court generally retains
discretion to exercise supplemental jurisdiction, pursuant to
[28 U.S.C.] § 1367, over pendent state-law claims.”). Further,
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the Fourth Circuit has held that “governmental actions that are
violative of state law are properly challenged in state courts
which exist, in part, to protect citizens from abuses of state
law.” Tri-County Paving, 281 F.3d at 441 (internal quotations
omitted).
Since this matter has not progressed past the motion to
dismiss stage and only state law claims remain, this court
declines to exercise its supplemental jurisdiction over Claims
Two, Eight, Nine, Ten, and Twelve. With all claims dismissed,
Claim Eleven for Punitive Damages will also be dismissed.
IV.

CONCLUSION
For the foregoing reasons, this court finds that Defendants

City, Michael, Bowen, and Robinson’s Motion to Dismiss, (Doc.
10), as well as Defendant Shoaf’s Motion to Dismiss, (Doc. 14),
should both be granted in part as to all federal claims.
IT IS THEREFORE ORDERED that the Motion to Dismiss pursuant
to Rule 12(b)(6) filed by Defendants City of Albemarle, Mayor
Ronnie Michael, Chief Danny Bowen, and Kevin Robinson, (Doc.
10), is GRANTED IN PART. Claims One, Three, Four, Six, and Seven
are DISMISSED pursuant to Fed. R. Civ. P. 12(b)(6). Claim Eleven
is DISMISSED AS MOOT. Claims Two, Eight, Nine, Ten, and Twelve
are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.
§ 1367(c)(3).
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IT IS FURTHER ORDERED that Defendant Shoaf’s Motion to
Dismiss, (Doc. 14), is GRANTED IN PART. Claims Five and Seven
are dismissed pursuant to Fed. R. Civ. P. 12(b)(6). Claim Eleven
is DISMISSED AS MOOT. Claims Eight, Nine, Ten, and Twelve are
DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3).
A judgment reflecting this Memorandum Opinion and Order
will be entered contemporaneously herewith.
This the 16th day of February, 2021.

__________________________________
United States District Judge

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