Craig v. City of Yazoo City, Civil Action No. 5:12–CV–95–DPJ–FKB.

• Citation: 984 F.Supp.2d 616
• Decision Date: 28 October 2013
• Docket Number: Civil Action No. 5:12–CV–95–DPJ–FKB.
• Parties: Bruen L. CRAIG, Plaintiff v. CITY OF YAZOO CITY, MISSISSIPPI; McArthur Straughter, Charles Mickey O'Reilly, Jack D. Varner, Clifton L. Jones, Aubry Brent, Danny Nelly, individually; and John Does I–V, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

984 F.Supp.2d 616

Bruen L. CRAIG, Plaintiff

v.CITY OF YAZOO CITY, MISSISSIPPI; McArthur Straughter, Charles Mickey O'Reilly, Jack D. Varner, Clifton L. Jones, Aubry Brent, Danny Nelly, individually; and John Does I–V, Defendants.

Civil Action No. 5:12–CV–95–DPJ–FKB.

United States District Court,

S.D. Mississippi,

Western Division.

Oct. 28, 2013.

E. Michael Marks, E. Michael Marks & Associates, Jackson, MS, Ruth Ellen Matthews, R. Ellen Matthews, Attorney at Law, Madison, MS, for Plaintiff.

Gary E. Friedman, William Brett Harvey, Phelps Dunbar, LLP, Jackson, MS, for Defendants.

ORDER

DANIEL P. JORDAN III, District Judge.

This § 1983 equal-protection action is before the Court on Defendants' Motion for Summary Judgment [50]. Plaintiff has responded in opposition [55]. Having fully considered the parties' submissions and the relevant authority, the Court finds that the motion should be granted.

I. Facts and Procedural History

This suit springs from a zoning dispute between Plaintiff Bruen Craig and Yazoo City, Mississippi, regarding a portable building Craig installed on his residential property in 2003. Craig's neighbor, Vay McGraw, orally complained about the building during a May 24, 2010, meeting of the Board of Aldermen (the “Board”). The Mayor and the Board “noted that staff should review this matter and take necessary action to assure compliance with its ordinance.” Pl.'s Resp. [56] Ex. O, May 24, 2010 Board Minutes. Defendant Danny Neely, the City's Code Enforcement Officer, then investigated and informed Craig in a July 20, 2010, letter that the 2003 building violated the ten-foot setback requirement, which constituted a misdemeanor offence. Pl.'s Resp. [56] Ex. U. Neely wrote that Craig had “fifteen (15) days to rectify this zoning violation or provide evidence to the contrary.” Id. He warned that “[f]ailure to comply will result in legal action.” Id.

Craig neither remedied the violation nor provided evidence that he was in compliance. Instead, Craig submitted 302 complaints regarding zoning violations he saw throughout Yazoo City, many of which addressed the same code section the City invoked against Craig. Craig distributed copies of his complaints about these zoning violations, including those by the Mayor and Alderman O'Reilly, to the public in attendance at a August 23, 2010 meeting of the Board. At that same meeting, the Board “authorized the City Attorney to retain a Special Prosecutor for the Bruen Craig litigation.” Id., Ex. AA, Board Minutes.

Approximately one week later, on September 1, 2010, Neely filed a criminal affidavit against Craig in Municipal Court. Craig appeared and pleaded nolo contendere, but the case was later dismissed on de novo appeal because the two-year statute of limitations for misdemeanors had expired.

Craig filed this Complaint on July 16, 2012 asserting claims under 42 U.S.C. § 1983 and various state-law theories. In it, he names as defendants Yazoo City; Mayor McArthur Straughter; Aldermen Charles O'Reilly, Jack Varner, Clifton Jones, and Aubry Brent, Jr.; and Neely. The individuals are named in their official and individual capacities. Defendants filed the instant motion for summary judgment on all claims. The Court has personal and subject matter jurisdiction.

II. Standard of Review

Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment,after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. 2548. The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (citation omitted). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when ... both parties have submitted evidence of contradictory facts.” Little, at 1075. When such contradictory facts exist, the court may “not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

III. Analysis

Craig's core federal cause of action is that Defendants violated his right to equal protection under the Fourteenth Amendment to the United States Constitution. He also claims Defendants violated his right to procedural and substantive due process under the Fourteenth and Fifth ¹ Amendments and the Eighth Amendment protection from excessive fines. In addition to these federal claims, Craig also makes state claims for deprivation of due process under the Mississippi Constitution, gross negligence, outrageous conduct, malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress. While this Order will examine each claim, it focuses attention on Craig's more substantial arguments.²

A. Federal Claims

1. Equal Protection

a. Class of One Theory

A class-of-one equal-protection claim is established “where the plaintiff [shows] that [he] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Craig alleges in his Complaint that Defendants prosecuted him but have “not subjected to such criminal prosecutions similarly situated individuals.” Pl.'s Compl. [1] ¶ 21. He explains in his Response to Defendants' motion that he was treated less favorably than the people responsible for the 302 zoning violations he reported to the Board.

As an initial point, Craig's argument relies on an expanded version of his original claim. The Complaint states that Defendants treated the comparators better by failing to prosecute them. See, e.g., id. But Craig now argues that the Complaint goes further, asserting disparate treatment “both as to selective enforcement ... and as to selective prosecution.” Pl.'s Mem. [58] at 18 (citing Compl. [1] ¶ 20) (emphasis added). In other words, the claim also includes disparate treatment with respect to the initial order that he comply with the zoning ordinance.

A fair reading of the Complaint reveals no such claim. Paragraph 20 of the Complaint—upon which Craig exclusively relies—never mentions “enforcement.” Instead, it states that “Defendants' criminal prosecution of its land use, or zoning ordinance, gives rise to a cause of action against Defendants....” Compl. [1] ¶ 20. It then explains why. And that reading is consistent with the rest of the Complaint. See ¶¶ 18 (averring that Defendants elected not to “criminal prosecute[ ] similarly situated individuals ...”) and 21 (averring that others similarly situated were “not subject to such criminal prosecution ...”). Claims related to the initial order to comply are not, therefore, properly before the Court. See Cutrera v. Bd. of Sup'rs. of La. State Univ., 429 F.3d 108, 113 (5th Cir.2005) (“A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.” (citation omitted)).

Alternatively, even the expanded claim fails because Craig offers no legitimate comparator or proof that Defendants acted irrationally. Determining whether a comparator is similarly situated requires consideration of “ ‘the full variety of factors that an objectively reasonable ... decisionmaker would have found relevant in making the challenged decision.’ ” Lindquist v. City of Pasadena, Tex., 669 F.3d 225, 234 (5th Cir.2012) (citation omitted). “The ‘similarly situated’ requirement must be enforced with particular rigor in the land-use context because zoning decisions ‘will often, perhaps almost always, treat one landowner differently from another.’ ” Lindquist v. City of Pasadena, Tex., 656 F.Supp.2d 662, 688 (S.D.Tex.2009) (citing Cordi–Allen v. Conlon, 494 F.3d 245, 251–52 (1st Cir.2007)).

Looking first to the pleaded claim that the 302 individuals were not subjected to prosecution, Craig has offered no evidence that any of these individuals refused the City's invitation to either comply with a zoning order or demonstrate why they are not required to comply. They were not, therefore, similarly situated as to the prosecution.

That leaves Craig's belated claim that the City treated the 302 more favorably in never ordering them to comply with various zoning ordinances. It should be noted that not all of the 302 alleged comparators committed the same zoning violation, and Craig's Response never specifically identifies any property owners with details regarding the alleged similarities. Those that allegedly violated different ordinances are not similarly situated. Lindquist, 669 F.3d at 234–35 (noting dissimilarity because different ordinances were invoked).

Assuming though that some of the individuals committed the same violation, the circumstances remain dissimilar. In Craig's case, his...