Posted by: Patricia Salkin | August 21, 2015

5th Circuit Court of Appeals Finds Plaintiff Pleaded Facts Sufficient to Overcome Council Members’ Qualified Immunity Defense on its Equal Protection Claim

Plaintiff Da Vinci Investment Limited Partnership sued the City of Arlington, Texas, and five city council members in their official and individual capacities. Da Vinci claimed violations of its substantive due process and equal protection rights under 42 U.S.C. § 1983, and also claimed that an unlawful taking occurred under the Texas Constitution. The individual council members filed a motion for judgment on the pleadings on the Section 1983 individual capacity claims on the basis of absolute and qualified immunity. The district court denied the motion and this interlocutory appeal followed.

The council members argued that they were entitled to absolute immunity because the denial of the development plan application was a legislative activity, and that the process for obtaining approval of this development plan application was a zoning event under the City’s code provisions and zoning is a legislative activity. Here, Da Vinci’s development plan was based on specific, particular facts and affected Da Vinci’s development alone. Therefore, the denial of the plan did not involve the determination of a policy, but applied general rules to one specific piece of property. Thus, the court concluded that the council members’ denial of Da Vinci’s development plan was not a legislative decision, and there was no absolute immunity for the council members’ actions. Absolute qualified immunity was also shown because private communications occurred between city council members and citizens, so the evidence-gathering and decision-making process was not judicial in nature. Moreover, there was no indication that the significant safeguards that exist in judicial proceedings applied to the council meeting, and there were no allegations that anyone at the hearing was put under oath or that witnesses were called.

Da Vinci next argued that the council members had no discretion to deny its development plan because it had met all the guidelines set forth in the ordinances. However, the court found no such “explicitly mandatory language” in the ordinances requiring city officials to approve a development plan, the city council had discretion to grant or deny the benefit. Thus, Da Vinci did not have a protected property right in the approval of its development plan, and, therefore, the council members were entitled to qualified immunity on Da Vinci’s substantive due process claim.

As to the Equal Protection claim, Da Vinci pleaded that it was treated differently than the “Cooper Project,” a development plan for a car wash facility that was approved by the city council less than two years before Da Vinci’s application. Because the council members failed in their initial brief to make any argument on Da Vinci’s equal protection claim, the district court’s denial of the council members’ motion for judgment on the pleadings on this claim was affirmed.

Da Vinci v Parker, 2015 WL 4737408 (5th Cir CA 8/11/2015)


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