United States District Court, E.D. Louisiana
MARJORIE MARY ET AL.
v.
PATRICIA BRISTER ET AL.
ORDER AND REASONS
JANE
TRICHE MILAZZO UNITED STATES DISTRICT JUDGE
Before
the Court is Defendants' Motion for Summary Judgment on
Qualified Immunity (Doc. 78). For the following reasons, the
Motion is GRANTED.
BACKGROUND
This
litigation arises out of a dispute between neighbors rivaled
only by that of the Hatfields and the McCoys. The neighbors,
Allison and Scott Sortor and Plaintiffs Marjorie and Cameron
Mary, own adjacent parcels of land in the upscale
neighborhood of Beau Chene in Mandeville, Louisiana. When the
Marys purchased their home, it was bordered only by a vacant
lot onto which their property and surrounding properties
drained. In September 2011, the Sortors purchased the vacant
lot, and Stephen Ploue Construction Co. (“Ploue”)
began construction of the Sortor's home. Before beginning
construction, the lot had to be graded and filled. Ploue
worked with the St. Tammany Parish Government to obtain the
necessary approval for a fill plan. Plaintiffs allege that in
approving the Sortor's fill plan, government officials
failed to enforce St. Tammany Code of Ordinances Chapter 7
Article I Section 7-002.00 (the “Net Fill
Ordinance”). Plaintiffs allege that the fill added to
the Sortors' property in violation of the Net Fill
Ordinance changed the natural drainage of their property and
caused it damage. On March 15, 2013, the Marys brought suit
against the Sortors and Ploue in state court. That suit
remains ongoing.
Thereafter,
on May 16, 2017, Plaintiffs brought a § 1983 suit in
this Court against various St. Tammany Parish government
officials, both in their official and individual capacities:
Patricia Brister, Parish President; Gina Campo, Director of
Departments and Second Deputy Chief Administrative Officer;
Kelly Rabalais, Executive Counsel; Charles Williams, Director
of Engineering; and Paul Carroll, drainage engineer.
Plaintiffs allege that Defendants violated their rights to
equal protection by treating them differently than similarly
situated persons in their enforcement of the Net Fill
Ordinance. On July 30, 2018, Defendants moved for a finding
of qualified immunity on Plaintiffs' equal protection
claims against Defendants in their individual capacities.
Thereafter,
Plaintiffs filed a First Amended Complaint adding claims
against Defendants under § 1983 for violations of their
substantive due process rights and First Amendment
retaliation. They allege that Defendants retaliated against
them for exercising their constitutional right to bring the
state court lawsuit by blocking consideration of a Code
Enforcement complaint that they filed with the Parish in
September 2017. In response to these amendments, Defendants
supplemented their Motion for Summary Judgment seeking a
finding of qualified immunity on Plaintiffs' First
Amendment retaliation claims. Defendants have not moved for
qualified immunity on Plaintiffs' substantive due process
claims. Plaintiffs oppose.
LEGAL
STANDARD
Summary
judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law.”[1] A genuine issue
of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.”[2]
In
determining whether the movant is entitled to summary
judgment, the Court views facts in the light most favorable
to the non-movant and draws all reasonable inferences in his
favor.[3] “If the moving party meets the
initial burden of showing that there is no genuine issue of
material fact, the burden shifts to the non-moving party to
produce evidence or designate specific facts showing the
existence of a genuine issue for trial.”[4] Summary judgment
is appropriate if the non-movant “fails to make a
showing sufficient to establish the existence of an element
essential to that party's case.”[5] “In
response to a properly supported motion for summary judgment,
the non-movant must identify specific evidence in the record
and articulate the manner in which that evidence supports
that party's claim, and such evidence must be sufficient
to sustain a finding in favor of the non-movant on all issues
as to which the non-movant would bear the burden of proof at
trial.”[6] “We do not . . . in the absence of
any proof, assume that the nonmoving party could or would
prove the necessary facts.”[7] Additionally, “[t]he
mere argued existence of a factual dispute will not defeat an
otherwise properly supported motion.”[8]
LAW
AND ANALYSIS
Defendants
move for summary judgment, arguing that they are entitled to
qualified immunity on Plaintiffs' § 1983 claims
against them in their individual capacities. Qualified
immunity serves to “shield[] government officials from
civil damages liability unless the official violated a
statutory or constitutional right that was clearly
established at the time of the challenged
conduct.”[9] “Once a defendant raises the defense
of qualified immunity, ‘the burden shifts to the
plaintiff to rebut this defense by establishing that the
official's allegedly wrongful conduct violated clearly
established law.'”[10]
In
Saucier v. Katz, the Supreme Court promulgated a
two-step analysis to determine if an official has stepped
outside the bounds of qualified immunity.[11] Under that
test, the initial inquiry is whether the Plaintiff has
alleged a constitutional violation.[12] If established, the next
inquiry is whether the defendant's conduct was
objectively reasonable in light of clearly established law at
the time the conduct occurred.[13] This Court will consider this
inquiry in light of both Plaintiffs' equal protection and
First Amendment retaliation claims.
A.
Equal Protection Claim
Defendants
argue that Plaintiffs cannot satisfy the first step of the
qualified immunity analysis, that is, they cannot prove a
constitutional violation in support of their equal protection
claim. “[T]he equal protection rights of an individual,
independent of membership in a suspect class, can be violated
by unequal treatment by the government.”[14] “It is
well established that [a] violation of equal protection
occurs only when the government treats someone differently
than others similarly situated.”[15] Plaintiffs
bring a “class of one” equal protection claim.
The Fifth Circuit recognizes three different types of
“class of one” claims: “selective
enforcement;” “personal vindictiveness;”
and adverse zoning permit decisions, and each has different
requirements of proof.[16] The threshold question then is which
type of equal protection claim Plaintiffs bring. Defendants
argue Plaintiffs' claim is a selective enforcement
“class of one” claim, while Plaintiffs argue that
they bring a land use and permitting claim.
Plaintiffs
rely on Mikeska v. City of Galveston to argue that
because their claim involves a zoning and permitting
decision, it is more akin to a land use and permitting claim
than a selective enforcement claim. In Mikeska, the
Fifth Circuit held that the plaintiffs had stated a land use
and permitting “class of one” equal protection
claim where they complained that the defendant had denied
them permits and cut off the utilities to their home when it
had not taken these actions against similarly situated
homes.[17] Likewise, the Fifth Circuit in
Lindquist v. City of Pasadena, Tex held that the
plaintiffs had stated a land use and permitting claim when
they alleged that “the city council refused to grant
them a used car dealer license while granting licenses to
others similarly situated.”[18]
The
Court finds Plaintiffs' reliance on this case law
troubling because, unlike in Mikeska and
Lindquist, Plaintiffs are not seeking a zoning
permit or license. Rather, they are the neighbors of the
party that sought the permit at issue. Further, there is no
allegation that any permit was denied. Rather, Plaintiffs
complain that Defendants failed to properly enforce the
Parish's ordinances in approving a fill plan. Stated
differently, Plaintiffs' claim is that Defendants chose
to selectively enforce the Net Fill Ordinance by allowing the
Sorters to add fill in violation of the ordinance (and where
the ordinance was enforced in other similar
situations).[19] The facts here are therefore more akin
to those in Horton v. City of
Smithville.[20] In Horton, the plaintiffs
brought an equal protection claim against the City after
their neighbors, with the participation and encouragement of
the City, hosted a live music event in violation of zoning
ordinances. In the per curiam opinion, the Fifth Circuit held
that the plaintiff's equal protection claim sounded in
selective enforcement.[21]This Court holds then that
Plaintiffs' equal protection claim likewise sounds in
selective enforcement. To succeed on a “class of
one” selective enforcement equal protection claim,
Plaintiffs must show (1) that they were intentionally treated
differently from others similarly situated, (2) that there is
no rational basis for the difference in treatment,
[ ...