United States District Court, S.D. Mississippi, Southern Division
COREY J. CHANEY and MIRANDA L. CHANEY PLAINTIFFS
CITY OF OCEAN SPRINGS, MISSISSIPPI DEFENDANT
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT CITY OF OCEAN SPRINGS,
MISSISSIPPI'S  MOTION TO DISMISS ALL CLAIMS BROUGHT
UNDER § 1983
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE
THE COURT is the Motion  to Dismiss All Claims Brought
Under § 1983 filed by Defendant City of Ocean Springs,
Mississippi. After due consideration of the Motion, the
related pleadings, the record, and relevant legal authority,
the Court finds that the City's Motion  to Dismiss
should be granted in part and denied in part and that
Plaintiffs' equal protection claim should be dismissed
action arises out of Plaintiffs Corey J. Chaney and Miranda
L. Chaney's (“Plaintiffs”) purchase and
attempted development of certain real property located within
the city limits of Defendant City of Ocean Springs,
Mississippi (the “City”). See 1st Am.
Compl.  at 2. On August 15, 2016, Plaintiffs purchased a
single parcel of property comprised of what had been known as
Lot 16 and the south half of Lot 17 in the City's Cherokee
Cove Subdivision. Id. at 2. Plaintiffs apparently
intended to renovate an existing structure on Lot 17,
subdivide the parcel, and then sell the two resulting
parcels, Lot 16 and the south half of Lot 17, separately.
Id. at 2-3. According to Plaintiffs, before their
lender, First Federal, would give final approval to the
construction financing, it requested and received
confirmation from the City that the south half of Lot 17
qualified as a “legal lot.” Id. at 3.
The City allegedly confirmed that both reconfigured lots
would be buildable lots that could be sold and developed
separately, as long as Lot 17 received an additional 7.3 feet
from Lot 16. Based on this confirmation, First Federal
approved construction financing for Plaintiffs' project
on Lot 17. Id.
City issued a building permit on March 13, 2017, and
construction to renovate the existing structure on Lot 17
began on May 13, 2017. Id. at 5. According to
Plaintiff, beginning on June 1, 2017, neighboring landowners
engaged in a pattern of harassment directed at Plaintiffs,
including vandalizing their property. Id. On June
27, 2017, “unidentified neighbors, ” whom
Plaintiffs believe “were motivated by racism and their
desire to keep a mixed race couple from moving into the
neighborhood, ” had an attorney draft a letter and send
it to the City. Id. The letter referenced the
City's approval of what these residents referred to as an
“illegal lot split/reconfiguration” and an
“illegal/void building permit concerning the subject
property.” Id. at 5-6. The residents asked the
City to “pull/revoke the illegal building permit, and
overturn or withdraw the purported lot split . . . .”
allege that the day the City received the letter, a building
official called Plaintiffs' architect asking to speak
with them. Id. at 6. That same day, the City's
Planning and Grants Administrator, Carolyn Martin
(“Martin”), left a voicemail for Plaintiffs
stating that “she had made an error in her
interpretation of the code” and that “she had
failed to consider and/or was unaware of the statutes which
applied to [Plaintiffs'] property.” Id.
Plaintiffs assert that, without providing notice or an
opportunity to be heard, the City then issued a Stop Work
Order on July 5, 2017, and delivered to the Jackson County,
Mississppi, Chancery Clerk a document entitled
“Rescind: Parcel Boundary Reconfiguration.”
Id. at 7. On July 11, 2017, this document was
recorded in the office of the Chancery Clerk of Jackson
County, ostensibly restoring the parcels to their original
configuration. Id. at 8.
Plaintiffs contacted First Federal on July 7, 2017, to inform
it of these developments, First Federal had already learned
of them and had frozen Plaintiffs' account. Id.
Plaintiffs infer that this indicates someone contacted their
lender for the purpose of intentionally interfering with
their building project. Id.
27, 2017, the City sent Plaintiffs a letter setting forth its
position that construction could continue on what had been
known as Lot 17, but only subject to relevant codes and
ordinances. Id. This included certain set-back
provisions, but the City recognized that the home being built
might already be violating this provision. Id. The
City's letter also stated that any plans to sell a
portion of the parcel that had previously been known as Lot
16 would violate the relevant zoning ordinance, and that such
a sale would not be possible. Id.
claim that a City building official then contacted their
architect and informed him that the official would discuss
the matter at a “board meeting” that evening;
however, Plaintiffs were never informed this communication
occurred. Id. at 9. Plaintiffs posit that the City
and its Planning and Grants Administrator Martin contacted
the architect in an attempt to reconfigure the project, and
intentionally conducted meetings outside Plaintiffs'
presence in an effort to do so. Id.
Federal discontinued funding the Lot 17 renovation project,
which caused all construction to halt. Id. “As
a result of the intentional actions of Ocean Springs and its
policy maker Martin and to the detriment of [Plaintiffs], the
collateral of Charter, Lot 16, was rendered worthless.”
Id. Plaintiffs claim that they have now been sued by
their contractor for over $70, 000.00. Id.
filed a Complaint  against the City in this Court on
January 30, 2018, followed by a First Amended Complaint 
on March 16, 2018. The First Amended Complaint advances
federal constitutional claims pursuant to 42 U.S.C. §
1983 for alleged violations of Plaintiffs' equal
protection, procedural due process, and substantive due
process rights, and a claim for a wrongful taking of property
without just compensation. The First Amended Complaint also
raises claims under state law for tortious interference with
contractual relations, negligent misrepresentation, and
negligence. 1st Am. Compl.  at 9-13. Plaintiffs seek an
award of compensatory damages, attorneys' fees, expenses,
and prejudgment interest. Id. at 14.
City has moved pursuant to Federal Rule of Civil Procedure
12(b)(6) to dismiss all claims Plaintiffs are asserting
against it under 42 U.S.C. § 1983. City's Mot. 
at 1. The City posits that Plaintiffs' § 1983 claims
should be dismissed because they “have made no
allegations of a policy or custom of the City's that was
a motivating factor behind any alleged constitutional
violations, ” and because their “takings claim is
not ripe, as Plaintiffs have failed to pursue the matter
under available state remedies.” City's Mem. 
at 1-2. The City argues that Plaintiffs' procedural due
process claim fails because they “made no effort to
avail themselves of local and state procedures readily
available.” Id. For this reason, “the
substantive due process claims should be dismissed as
premature in that the procedural due process claim based on
alleged deprivation of the same right is not properly before
the Court.” Id. Upon dismissal of the §
1983 claims, the City maintains that this case should be
dismissed in its entirety for lack of federal subject-matter
jurisdiction. Id. at 2.
respond that they “have pled enough facts to state a
claim that is plausible on its face, ” Pls.' Resp.
 at 1, including the existence of an official policy with
a direct causal connection to a constitutional deprivation,
id. at 3. “The facts as pled by Plaintiffs,
and which must be taken as true, establish that a decision
adverse to Plaintiffs' constitutional rights was made and
officially adopted and promulgated by an official of
Defendant (Carolyn Martin) to whom Defendant delegated
policy-making authority . . . .” Id. at 5.
Plaintiffs, who are represented by counsel, have not sought
leave to amend their pleadings in the event the Court finds
that the First Amended Complaint fails to state a § 1983
Rule 12(b)(6) standard
survive a Rule 12(b)(6) motion, “a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
667 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556).
“plaintiff's factual allegations must support a
claim to relief that is plausible on its face and rises above
mere speculation.” United States ex rel. Steury v.
Cardinal Health, Inc., 625 F.3d 262, 266 (5th Cir.
2010). “[A] complaint may proceed even if
‘recovery is very remote and unlikely,' so long as
the alleged facts ‘raise a right to relief above the
speculative level.'” Littell v. Houston Indep.
Sch. Dist., 894 F.3d 616, 622 (5th Cir. 2018) (quoting
Twombly, 550 U.S. at 555-56).
determining whether a complaint states a valid claim for
relief, a court must accept all well-pleaded facts as true
and construe the complaint in the light most favorable to the
plaintiff. In re Great Lakes Dredge & Dock Co.
LLC, 624 F.3d 201, 210 (5th Cir. 2010). While a court
must “take factual allegations as true at the Federal
Rule of Civil Procedure 12(b)(6) stage, ‘[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.'”
Rountree v. Dyson, 892 F.3d 681, 685 (5th Cir. 2018)
(quoting Iqbal, 556 U.S. at 678).
Municipal liability under § 1983
U.S.C. § 1983 requires a showing that a defendant
deprived the plaintiff of his or her constitutional rights
and did so while acting under color of state law. Moody
v. Farrell, 868 F.3d 348, 351 (5th Cir. 2017).
“[A] municipality cannot be held liable under §
1983 on a respondeat superior theory.”
Monell v. Dep't of Soc. Servs. of City of New
York, 436 U.S. 658, 691 (1978). Plaintiffs seeking to
impose liability on local governments under § 1983 must
show that “‘action pursuant to official municipal
policy' caused their injury.” Connick v.
Thompson, 563 U.S. 51, 60 (2011) (quoting
Monell, 436 U.S. at 691). To state a claim for
municipal liability under § 1983, a plaintiff
“must allege sufficient factual content to permit the
reasonable inference (1) that a constitutional violation
occurred and (2) that an ...