Lisle et al v. City of Plano

Filing 77

MEMORANDUM OPINION AND ORDER - GRANTING 46 MOTION for Summary Judgment filed by Plano City of. It is further ORDERED that all of Plaintiffsclaims are hereby DISMISSED with prejudice. Signed by Judge Amos L. Mazzant, III on 9/28/2016. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

BILL LISLE, III and SMITH-LISLE
HOLDINGS, LTD.
v.
CITY OF PLANO

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Civil Action No. 4:15-CV-372
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant City of Plano’s Motion for Summary Judgment
(Dkt. #46).

Having considered the relevant pleadings, the Court determines Defendant’s

Motion for Summary Judgment should be granted.
BACKGROUND
Plaintiff Bill Lisle, III (“Lisle”) is an individual and sole member and operator of SmithLisle Holdings, Ltd. (“SLH”) (collectively, “Plaintiffs”) (Dkt. #34 at ¶¶ 1, 6). Defendant City of
Plano (the “City”) is a municipal corporation of the State of Texas (Dkt. #34 at ¶ 2). SLH owns
property at 813 18th Street, Plano, Texas (the “Property”) that contained a main house, a metal
garage, a carport, and a temporary building (Dkt. #34 at ¶ 6). The Property is located in an area
designated by the City as a heritage district (Dkt. #34 at ¶ 7). A property owner within a heritage
district must obtain a Certificate of Appropriateness (“CA”) from the Heritage Commission (the
“Commission”) before commencing exterior modifications or new construction (Dkt #46 at
¶ 11). Plaintiff Lisle sought to improve the Property by constructing a rear addition to the
already existing garage (Dkt. #46 at ¶ 15). Lisle began construction without obtaining a building
permit from the City or a CA from the Heritage Commission (Dkt. #46 at ¶¶ 20–21).

The City’s Heritage Preservation Officer, Bhavesh Mittal (“Mittal”), received
information that construction was occurring on the Property (Dkt. #46 at ¶ 16). Mittal knew a
CA had not been approved on the Property and submitted photos to Selso Mata (“Mata”), the
City’s Chief Building Official (Dkt. #46 at ¶ 17). Upon further investigation, Mata determined
that no building permit had been issued for the garage construction (Dkt. #46 at ¶ 19). On
August 29, 2013, the City’s Building Inspections Department (the “Inspections Department”)
issued its first stop work order (the “First Order”) that Plaintiffs did not appeal but allowed
construction to continue (Dkt. #46 at ¶¶ 24, 32–33).
Soon after the issuance of the First Order, the City’s Planning Department reached out to
Lisle to schedule a meeting related to the Property (Dkt. #46 at ¶ 38). Lisle attended the meeting
and learned what was required before the City would issue a building permit, which included
filing a CA application (Dkt. #46 at ¶ 43). On October 25, 2013, Lisle filed a CA application for
a new garage, and the Heritage Commission denied the application due to its lack of an updated
site plan (Dkt. #46 at ¶¶ 52, 59). Lisle appealed the Commission’s denial to the City Council,
and the City Council denied the appeal (Dkt. #46 at ¶¶ 60, 100). Despite the First Order and lack
of a CA, Plaintiffs completed construction of the new garage and began paving a driveway on
the Property (Dkt. #34 at ¶¶ 15–16). The City learned of the continued construction and issued
its second stop work order (the “Second Order”) on or about January 17, 2014 (Dkt. #34 at ¶ 17).
In response to the Second Order, Lisle went to the City’s Inspections Department and met with
Mata and other Inspections Department personnel (Dkt. #46 at ¶ 73). Lisle contended he was not
required to obtain a permit to pour concrete for a driveway under the 2012 International Building
Code (the “Building Code”) Section 105.2(6) (Dkt. #46 at ¶ 74). Mata initially agreed with
Lisle’s contention (Dkt. #34 at ¶ 28). However, after conferring with Mittal, Mata told Lisle the

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stop work orders applied to all work on the Property, and any construction had to cease (Dkt. #46
at ¶ 81). Mata then asserted if the stop work orders were violated, the City would issue a citation
(Dkt. #46 at ¶ 82). After the meeting, Lisle continued to pave the driveway because he believed
Mata lacked the authority to stop construction (Dkt. #46 at ¶¶ 82, 86). Mata instructed an
inspector to issue Lisle a citation for failure to comply with a stop work order (Dkt. #46 at ¶¶ 88–
89). Nevertheless, Lisle completed paving the driveway (Dkt. #46 at ¶ 95). The City of Plano
Municipal court held a trial, and a jury found Lisle guilty of violating the Second Order (Dkt.
#46 at ¶ 96). On his own motion, Lisle dismissed the appeal from his conviction (Dkt. #46 at
¶ 96).
On May 28, 2015, Plaintiffs filed suit against the City under 42 U.S.C. § 1983 (Dkt. #1).
Plaintiffs assert the City, “through individuals acting in their official capacity, sought to deprive
Plaintiffs [of] the use of their property and fined Mr. Lisle for using the property in a manner that
was (and remains) lawful under Defendant’s ordinances.” (Dkt. #34 at ¶ 4). Plaintiffs also assert
the City denied Plaintiffs due process rights and equal protection of the laws by disparate
treatment of Plaintiffs when compared to others similarly situated (Dkt. #34 at ¶ 4).
On June 3, 2016, the City filed its motion for summary judgment (Dkt. #46). On August
2, 2016, Plaintiffs filed their initial response to the motion (Dkt. #51) and supplemented such
response the next day (Dkt. #52). The City filed its reply on August 17, 2016 (Dkt. #63).
LEGAL STANDARD
The purpose of summary judgment is to isolate and dispose of factually unsupported
claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary judgment
is proper under Rule 56(a) of the Federal Rules of Civil Procedure “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). A dispute about a material fact is genuine when “the
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evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Substantive law identifies which
facts are material. Id. The trial court “must resolve all reasonable doubts in favor of the party
opposing the motion for summary judgment.” Casey Enters., Inc. v. Am. Hardware Mut. Ins.
Co., 655 F.2d 598, 602 (5th Cir. 1981).
The party seeking summary judgment bears the initial burden of informing the court of its
motion and identifying “depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of
material fact. FED. R. CIV. P. 56(c)(1)(A); Celotex, 477 U.S. at 323. If the movant bears the
burden of proof on a claim or defense for which it is moving for summary judgment, it must
come forward with evidence that establishes “beyond peradventure all of the essential elements
of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where
the nonmovant bears the burden of proof, the movant may discharge the burden by showing that
there is an absence of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers
v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its
burden, the nonmovant must “respond to the motion for summary judgment by setting forth
particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing
Anderson, 477 U.S. at 248–49). A nonmovant must present affirmative evidence to defeat a
properly supported motion for summary judgment. Anderson, 477 U.S. at 257. Mere denials of
material facts, unsworn allegations, or arguments and assertions in briefs or legal memoranda
will not suffice to carry this burden.

Rather, the Court requires ‘“significant probative

evidence’” from the nonmovant to dismiss a request for summary judgment. In re Mun. Bond

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Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982) (quoting Ferguson v. Nat’l Broad.
Co., 584 F.2d 111, 114 (5th Cir. 1978)). The Court must consider all of the evidence but must
“refrain from making any credibility determinations or weighing the evidence.” Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
ANALYSIS
(1) Whether Monell Liability Should Be Imposed Based on Mata’s Actions Related to the
Second Order
Plaintiffs’ procedural and substantive due process claims against the City are claims
against a municipality. Title 42 U.S.C. § 1983 creates a cause of action against a person who,
acting under the color of state law, deprives another of a constitutionally or federally protected
right, privilege, or immunity. Municipalities were not generally considered “persons” acting
under the color of state law. However, in Monell v. Department of Social Services, 436 U.S. 658
(1978), the Supreme Court held a municipal government could be liable under § 1983 when a
municipal’s official policy or custom causes a violation of a constitutional right. The Court
noted that such liability could not rely on the theory of respondeat superior. Id. at 692.
A plaintiff must prove three elements to establish a municipal liability claim: “(1) an
official policy (2) promulgated by the municipal policymaker (3) was the moving force behind
the violation of a constitutional right.” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th
Cir. 2009) (citing Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001)). An official
policy can be shown in several ways. It can arise by a “policy statement, ordinance, regulation,
or decision officially adopted and promulgated by governing body officers” or by a “persistent,
widespread practice” that is “so common and well settled as to constitute a custom.” Bennett v.
City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984). A single discretionary action by a municipal
official can constitute official policy under § 1983 if the municipal official had the authority to
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promulgate final municipal policy regarding the action ordered. Pembaur v. City of Cincinnati,
475 U.S. 469, 482 (1986).
Plaintiffs do not offer evidence of a written policy or custom that caused their
constitutional harm. Instead, Plaintiffs rely on the alleged actions of Mata as a final policymaker
in relation to the Second Order. Plaintiffs argue that Mata is a final policymaker due to the
City’s delegating broad authority to him to apply, interpret, and modify the Building Code (Dkt.
#51 at p. 6). The City contends there is no evidence Mata is a final policymaker, because Mata’s
authority is limited by the City’s ordinances and his actions are subject to review.
A court, rather than a jury, identifies whether a particular municipal individual has final
policymaking authority by referencing state law. City of St. Louis v. Praprotnik, 485 U.S. 112,
125 (1988).

Texas law allows municipalities to approve and enact ordinances, rules, or

regulations to carry out necessary functions.

TEX. LOCAL GOV’T CODE ANN. § 51.001.

Summary judgment evidence shows the City Council for the City of Plano is the policymaking
body (Dkt. #46, Exhibit M, § 3.07). Section 3.07 of the City of Plano’s Home Rule Charter
states, “All powers of the city and the determination of all matters of policy shall be vested in the
city council.” Id. The City’s City Council adopts the 2012 edition of the International Building
Code as its ordinances and policies, found in Chapter 6 of the City’s Code of Ordinances (Dkt.
#46, Exhibit E, § 6-17; Dkt. #46, Exhibit D at p. 1).
The Building Code authorizes Mata as Chief Building Official to enforce and “render
interpretations of [the] code and to adopt policies and procedures in order to clarify the
application of its provisions” as well as “issue all necessary notices or orders to ensure
compliance with [the] code.” (Dkt. #46, Exhibit W, §§ 104.1, 104.3). The building official also
possesses the authority to modify particular provisions of the Building Code if its application

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becomes impractical (Dkt. #46, Exhibit H, § 104.10). While Mata has the necessary discretion to
make initial decisions regarding stop work orders, this discretion is insufficient to confer
policymaking status. The Supreme Court explained the authority to make municipal policy is the
authority to make final policy:
When an official’s discretionary decisions are constrained by policies not of that
official’s makings, those policies, rather than the subordinate’s departures for
them, are the act of the municipality. Similarly, when a subordinate’s decision is
subject to review by the municipality’s authorized policymakers, they have
retained the authority to measure the official’s conduct for conformance with their
policies.
Praprotnik, 485 U.S. at 127; see Jett v. Dall. Indep. Sch. Dist., 7 F.3d 1241, 1247 (5th Cir. 1993)
(quoting Pembaur, 475 U.S at 484 n. 12) (offering an example of the County Sheriff and Board
of County Commissioners to distinguish between final policymakers and final decision makers);
see also Bennett v. City of Slidell, 728 F.2d 726, 768–69 (5th Cir. 1984) (“[P]olicymaking
authority is more than discretion, and it is far more than the final say-so . . . .”).
The Court finds Mata is not a final policymaker to warrant a municipal liability claim
against the City. Plaintiffs confuse the difference between a final policymaker and a decision
maker. Mata’s authority to make interpretations, policies, and procedures is limited and must
“be in compliance with the intent and purpose” of the Code (Dkt. #46, Exhibit W, § 104.1).
Further, the Building Code provides any order, decision, or determination made by Mata is
subject to review by the City’s Building Standards Commission (Dkt. #46, Exhibit G, § 63(c)(3); Dkt. #46, Exhibit I, § 113.1; Dkt. #46, Exhibit E, § 113). The City Council appoints the
Building Standards Commission to review building official decisions to ensure compliance with
the Code (Dkt. #46, Exhibit G, §§ 6-3(a)(1)). Thus, it is clear the Building Code is policy
promulgated by the City Council, but nothing about Mata’s authority, either under the Code or
otherwise, shows he acts “in lieu of the [City Council] to set or modify city policy.” Bennett,
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728 F.2d at 769. Based on the foregoing, Plaintiffs’ fail to create a fact issue regarding whether
Mata is a final policymaker.
Therefore, the Court finds the City is not liable for Plaintiffs’ constitutional claims.
(2) Whether Plaintiffs’ Based on Mata’s Actions Are Barred by the Favorable
Termination Rule
Plaintiffs’ due process and equal protection claims are premised on the actions of Mata
when he issued the Second Order. The City asserts Plaintiffs’ claims are barred by the favorable
termination rule discussed in Heck v. Humphrey, 512 U.S. 477 (1994) (Dkt. #46 at p. 30). The
City cites ALRP Property, LLC v. Borough of Tarentum, No. 11-134, 2011 WL 4955200 (W.D.
Pa. Oct. 18, 2011), and argues Heck has been applied to due process claims similar to Plaintiffs’
(Dkt. #63 at p. 10). In ALRP, the plaintiff was previously cited and found guilty for failure to
remove an unsound building and for failure to rectify an unsafe structure. Id. at *4. ALRP
alleged its due process rights had been violated when the Borough “improperly interfered with
[ALRP’s] rights to secure an occupancy permit and to use its property” and thereafter,
improperly condemned [ALRP’s] property.” Id. at *7 (internal quotation marks and citation
omitted). The ALRP court reasoned Heck barred plaintiff’s due process claims:
If ALRP would prevail in its argument that its due process rights were violated
because the defendants’ actions resulted in a wrongful denial of an occupancy
permit and an incorrect condemnation, its convictions for failure to remove the
building and for failure to rectify the notice of unsafe structure would be invalid.
Id.
Plaintiffs maintain Heck should not apply. They argue the application of Heck depends
on whether a favorable finding in this § 1983 action “would require Plaintiffs to ‘negate an
element of the offense’ for which Mr. Lisle was convicted.” (Dkt. #51 at p. 18 (citing Heck, 512
U.S. at 487 n.6)). According to Plaintiffs’, when Lisle was convicted of a misdemeanor for

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violating the Second Order, “the City had to show only that Mr. Lisle 1) ‘continue[d] to work, 2)
after having been served with a stop work order.”’ (Dkt. #51 at p. 18 (citation omitted)). Thus,
Plaintiffs contend that since they dispute only the lawfulness of the Second Order, which is not
an element of the offense, their claims “do not undermine or even imply that either of the jury
findings” was invalid (Dkt. #51 at p. 18).
The City responds that Heck only requires a Section 1983 recovery to “impl[y] a state
criminal conviction was invalid” rather than expressly disprove an element of the convicted
offense (Dkt. # 63 at p. 10 (citing Montgomery v. Bataille, No. 4:10-cv-73, 2012 WL 3544867, at
*5 (E.D. Tex. July 26, 2012), report and recommendation adopted, No. 4:10cv73, 2012 WL
2544746 (E.D. Tex. Aug. 16, 2012))).
The Court agrees with the City’s interpretation of Heck and decides it applies. Heck bars
§ 1983 claims premised not only on unconstitutional convictions but also other harms “whose
unlawfulness would render a conviction” invalid. Heck, 512 U.S at 486. As a result, when
damages are sought in a civil rights suit, the relevant inquiry is “whether a judgment in favor of
the plaintiff would necessarily imply the invalidity of the conviction,” unless the plaintiff
demonstrates the prior conviction has already been invalidated or overturned. Id. at 487. In a
footnote, the Supreme Court gave an example of “a § 1983 action that does not seek damages
directly attributable to conviction . . . but whose successful prosecution of claim would
necessarily imply” the wrongfulness of criminal conviction. Id. at 486 n. 6. Such a case would
require the plaintiff “to negate an element of which he has been convicted to prevail.” Id.
Plaintiffs’ argument relies on this footnote and several cases,1 but it suffers from a
misunderstanding of Heck. In this civil suit for damages, the only question is “whether a

1

The cases that Plaintiffs’ cite in support of their argument address Fourth Amendment claims. These cases are
inapplicable because Plaintiffs’ are asserting Fourteenth Amendment claims (Dkt. #34 at ¶¶ 3, 57, 60).

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judgment in favor of the plaintiff would necessarily imply the invalidity of the conviction.”
Heck, 512 U.S. at 487. Plaintiff Lisle was issued a citation and convicted for violating the
Second Order. Lisle did not appeal or otherwise contest the validity of the municipal court
conviction. Accordingly, Lisle cannot show his conviction “has been reversed on direct appeal,
expunged by executive order, [or] declared invalid by a state tribunal authorized to make such a
determination. Heck, 512 U.S. at 486. And if Lisle prevailed in this civil action, both on his due
process and equal protection claims, it would “necessarily imply the invalidity” of his prior
conviction because he was not provided due process or equal protection. Plaintiffs’ alleged
constitutional harms are not separate and distinct from his prior conviction and require the Court
to prove a “fact that is inherently inconsistent with one underlying the criminal conviction.”
Bush v. Strain, 513 F.3d 492, 497 (5th Cir. 2008).
Therefore, Plaintiffs’ due process and equal protection claims should be barred by Heck.
(3) Whether Plaintiffs’ Claims Are Barred by Statute of Limitations and Discovery
Responses
The City asserts two of Plaintiffs’ causes of action alleged in their Second Amended
Complaint are barred by the statute of limitations and precluded by discovery responses.
Specifically, Plaintiffs’ claims based upon (1) an allegation that the City’s ordinance requiring
pre-approval for pouring of pavement violates their substantive due process rights, and (2) an
allegation that the City Council’s denial of Plaintiffs’ appeal of their garage CA application
violates their substantive due process and equal protection rights (Dkt. #34 at ¶¶ 61, 63–66). The
City argues Plaintiffs’ alleged injuries occurred more than two years before Plaintiffs’ first
complaint (the “Original Complaint”) (Dkt. #46 at p. 26). The City also argues Plaintiffs’
interrogatories and deposition testimony fail to reference the constitutionality of the City’s

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ordinance or “identify any due process claim based upon the actions” of the City Council (Dkt.
#46 at p. 27).
“Because there is no federal statute of limitations for § 1983 claims, district courts use the
forum state’s personal injury limitations period.” Moore v. McDonald, 30 F.3d 616, 620 (5th
Cir. 1994) (citing Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993)).

In Texas, the

applicable limitations period is two years. Id. “Although the Texas limitations period applies,
federal law governs when a § 1983 claim accrues, and ‘[u]nder federal law, a cause of action
accrues when the plaintiff knows or has reason to know of the injury which is the basis of the
action.’” Id. (citing Gartrell, 981 F.2d at 257).
Plaintiffs first respond their claims relating to the pre-approval ordinance are not barred
because the Original Complaint stated the Second Order was baseless and questioned the
legitimacy of the order (Dkt. #51 at p. 14; Dkt. #1 at ¶¶ 14, 16). Plaintiffs state these assertions
relate back to the Original Complaint as allowed under Federal Rule of Civil Procedure 15(c).
Rule 15(c) allows amendments to relate back to when “the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence” set out in the original complaint. FED.
R. CIV. P. 15(c)(B). The Court agrees with Plaintiffs since the Original Complaint set out facts
supporting the City’s allegedly improper refusal to allow pouring of the driveway. Because the
claims properly relate back, there is no need for the claims to be disclosed in a discovery
response. Therefore, this claim is not barred by the statute of limitations or precluded by
discovery responses.
Plaintiffs then argue the claims regarding their appeal of the garage CA application
should not be barred because they relate back to the Original Complaint pursuant to Rule 15.

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Plaintiffs’ contend that while fewer facts related to the claim are pleaded in the Original
Complaint, “the general fact pattern is present.” (Dkt. #51 at p. 14).
Plaintiffs’ Rule 15 argument is unpersuasive. The Original Complaint references only
Plaintiffs’ attempt to construct a driveway and never mentions Plaintiffs’ previous attempt to get
approval for construction of the garage. “[A] plaintiff’s claim is ripe at the time the initial
decisionmaker makes its final decision, and he need not exhaust his administrative remedies
prior to asserting his claim.” Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank, 473
U.S. 172, 193 (1985). Here, Plaintiffs’ claim accrued on December 17, 2013, when the Heritage
Commission denied their garage CA application (Dkt. #46 at ¶¶ 55, 59). Claims related to
Plaintiffs’ appeal of their garage CA application were not raised until Plaintiffs’ First Amended
Complaint on February 23, 2016, which exceeds the two year statute of limitations for personal
injuries. Plaintiffs also point out the claims should not be barred because Lisle’s citation for
violating the Second Order was a result of the City Council failing to approve the project thirty
days before the citation was issued (Dkt. #51 at p. 14). However, this contention fails because it
is clear from Plaintiffs’ Original Complaint that they maintain Lisle’s citation was for
construction of the driveway and not the garage (Dkt. #1 at ¶ 12–14).
Therefore, Plaintiffs’ substantive due process and equal protection claims related to the
City Council’s denial of Plaintiffs’ appeal should be barred by statute of limitations.
CONCLUSION
Based on the foregoing, the Court finds Defendant City of Plano’s Motion for Summary
Judgment (Dkt. #46) is hereby GRANTED. It is further ORDERED that all of Plaintiffs’
claims are hereby DISMISSED with prejudice.

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SIGNED this 28th day of September, 2016.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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