Da Vinci Investment, L.P. v. City of Arlington, Te

Case: 14-10880 Document: 00513150242 Page: 1 Date Filed: 08/11/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10880 United States Court of Appeals

Fifth Circuit

FILED

DA VINCI INVESTMENT, LIMITED PARTNERSHIP, August 11, 2015

Lyle W. Cayce

Plaintiff - Appellee Clerk

v.

CHARLIE PARKER; KATHRYN WILEMON; SHERI CAPEHART; JIMMY

BENNETT; MICHAEL GLASPIE,

Defendants - Appellants

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:13-CV-971

Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges.

PER CURIAM:*

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

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

Case: 14-10880 Document: 00513150242 Page: 2 Date Filed: 08/11/2015

No. 14-10880

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. This interlocutory appeal followed. We

AFFIRM in part and REVERSE in part.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of a proposed development plan to build a car wash

in Arlington, Texas. In 1991, Da Vinci purchased approximately 12 acres of

undeveloped land in Arlington and obtained a zoning change on the property

to “planned development” (“PD”). PD zoning provides that property can only

be developed in accordance with an approved development plan. Over several

years, Da Vinci developed and sold portions of the land. The land at issue in

this appeal is Da Vinci’s sole remaining tract (the “Lot”). In 2012, Da Vinci

contracted with a third party who would purchase the Lot; the purchase was

conditioned upon approval by the City of a development plan to build a car

wash. Pursuant to the PD zoning, a car wash was a permitted use on the Lot.

In February 2013, the City conducted a review and found that the

proposed development plan for a car wash was unlikely to have a negative

effect on the location and was consistent with the surrounding uses. In March,

Da Vinci and the purchaser submitted a formal development plan application

for the Lot. That same month, a City staff report found that the plan complied

with the minimum commercial design standards and would have no impact on

traffic.

There was significant opposition to the development plan from real

estate developer Jim Poynter and two former city officials. These individuals

sent emails to the council members stating their objections and sometimes

attaching letters of opposition from community members. Council member

Parker answered one such email from Poynter: “Thanks Jim more wood for

2

Case: 14-10880 Document: 00513150242 Page: 3 Date Filed: 08/11/2015

No. 14-10880

the fire and it is much appreciated.” Another email from Parker to Poynter

stated: “I think that you have this thing knocked. I know that I can get [council

member] Sheri[] [Capehart’s] vote against also.”

In May, after a public hearing, the planning and zoning commission

recommended against approving the development plan because the plan did

not mitigate compatibility problems and enhance the neighborhood areas. Da

Vinci appealed the commission’s decision to the city council; the council agreed

to hear the appeal. The next day, Poynter sent an email to council member

Bennett inquiring about the decision to approve the appeal. Bennett

responded: “I voted in favor because I have a personal policy to hear almost

all [o]f these types [o]f requests. That being said, I cannot imagine a scenario

where the case would ever get my support. Thanks for all you do Jim.”

In August, the city council conducted a public hearing to consider the

development plan. The hearing consisted of, among other things, a

presentation by Da Vinci and opinions of citizens who spoke both for and

against the plan. At the conclusion of the hearing, the council voted to deny

the development plan application by a vote of 5-4. The denial was made

without discussion. The contract of sale between Da Vinci and the purchaser

was thereafter terminated.

In November 2013, Da Vinci filed suit against the City and the council

members in state court. The case was removed to the United States District

Court for the Northern District of Texas. The council members filed a motion

for judgment on the pleadings and a motion for summary judgment. 1 In the

motions, the council members argued they were entitled to absolute or at least

qualified immunity. The district court denied the motion for judgment on the

1 The pleadings before the district court were Da Vinci’s complaint and a Federal Rule

of Civil Procedure 7(a) reply to the council members’ answer. No dispositive motions were

filed by the City or the council members in their official capacities.

3

Case: 14-10880 Document: 00513150242 Page: 4 Date Filed: 08/11/2015

No. 14-10880

pleadings and did not consider the motion for summary judgment. The district

court then issued a pretrial scheduling order directing the parties to conduct

limited discovery related to the immunity defenses. The council members filed

a timely appeal of the district court’s denial of absolute and qualified immunity

and the discovery order.

DISCUSSION

Orders rejecting absolute and qualified immunity defenses are

immediately appealable. Will v. Hallock, 546 U.S. 345, 350 (2006). A district

court’s refusal to dismiss claims on the basis of absolute or qualified immunity

is reviewed de novo. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).

A motion for judgment on the pleadings under Federal Rule of Civil

Procedure 12(c) is subject to the same standards as a Rule 12(b)(6) motion to

dismiss. Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). “To survive

a motion to dismiss, 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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)).

When asserting an immunity defense, “[i]t is sufficient that the movant

in good faith pleads that it is entitled to absolute or qualified immunity.” Beck

v. Tex. State Bd. of Dental Exam’rs, 204 F.3d 629, 633 (5th Cir. 2000). “Once

the movant asserts this affirmative defense, the burden shifts to the plaintiff

to rebut it.” Id. at 633-34 (citation, quotation marks, and alteration omitted).

I. Absolute Immunity

“Local legislators are entitled to absolute immunity from § 1983 liability

for their legislative activities.” Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998).

To determine whether a particular activity is legislative, we use two tests:

The first test focuses on the nature of the facts used to reach the

4

Case: 14-10880 Document: 00513150242 Page: 5 Date Filed: 08/11/2015

No. 14-10880

given decision. If the underlying facts on which the decision is

based are legislative facts, such as generalizations concerning a

policy or state of affairs, then the decision is legislative. If the facts

used in the decisionmaking are more specific, such as those that

relate to particular individuals or situations, then the decision is

administrative. The second test focuses on the particularity of the

impact of the state action. If the action involves establishment of

a general policy, it is legislative; if the action single[s] out specific

individuals and affect[s] them differently from others, it is

administrative.

Hughes v. Tarrant Cnty., 948 F.2d 918, 921 (5th Cir. 1991) (quotation marks

omitted).

The district court held that Da Vinci had “pleaded sufficient facts to

overcome Individual Defendants’ absolute immunity defense.” The court

relied on the fact that the denial of the development plan “affected a specific

individual and a specific situation” and “was not a general and prospective

action that affected the entire community or a prospective amendment of a

larger general plan that merely related to Plaintiff’s property.”

The council members argue that they are entitled to absolute immunity

because the denial of the development plan application was a legislative

activity. They contend that the “process for obtaining approval of [Da Vinci’s]

development plan application was a zoning event under the City’s code

provisions” and zoning is a legislative activity. 2 Da Vinci contends that this is

not a zoning case because “it does not involve a change to the zoning

classification for Da Vinci’s property.” It argues that the council members fail

to distinguish between the ordinance processes for rezoning into a new PD

district and plan approval for property in an existing PD zone. The denial of

its development plan, Da Vinci argues, only involved the second step and was

2All ordinances referenced in this opinion are those that were in effect at the time of

the events in question.

5

Case: 14-10880 Document: 00513150242 Page: 6 Date Filed: 08/11/2015

No. 14-10880

therefore not a zoning decision.

In one precedent, a developer submitted a plan to build apartments.

Bryan v. City of Madison, 213 F.3d 267, 269 (5th Cir. 2000). The plan was

approved, but the developer failed to apply for a permit within the deadline

established by the city ordinances. Id. at 270. As a result, he was forced to

resubmit the plan for approval. Id. His site plan was again approved, but the

mayor vetoed it. Id. Bryan submitted another plan, which the board approved,

and the mayor vetoed. Id. at 271. This pattern repeated itself until Bryan

eventually lost his opportunity to purchase the land. Id. Bryan sued the

mayor, among others, under Section 1983 alleging violation of his Fifth and

Fourteenth Amendment rights. Id. at 272. The district court concluded the

mayor was entitled to absolute immunity. Id.

On appeal, we reversed. Id. Applying the tests used in Hughes, we

determined that the mayor’s vetoes were not legislative actions:

In each instance, the mayor was vetoing a determination that

Bryan’s plan satisfied city zoning ordinances or building

requirements. Such a determination does not involve the

determination of a policy. Rather than constituting a prospective

rule, an overall plan, or general policy, this determination entered

the realm of enforcement with respect to approval of a specified

proposed plan. Finally, under the two . . . tests, the determination

was based on specific, particular facts and affected Bryan’s

development alone.

Id. at 273 (internal quotation marks omitted). We also noted that, under our

precedent, zoning is a legislative activity because it “is general and

prospective” and “directly affects the entire community.” Id. We determined

that “[i]n the present case, however, general rules are being applied to one

specific piece of property” and therefore the activity was administrative rather

than legislative. Id. at 273-74.

Da Vinci’s development plan was “based on specific, particular facts and

affected [Da Vinci’s] development alone.” See id. at 273. The denial of the plan

6

Case: 14-10880 Document: 00513150242 Page: 7 Date Filed: 08/11/2015

No. 14-10880

did not “involve the determination of a policy,” but, instead, applied “general

rules . . . to one specific piece of property.” See id. at 273-74 (citation and

quotation marks omitted). We conclude that the council members’ denial of Da

Vinci’s development plan was not a legislative decision. There is no absolute

immunity for the council members’ actions.

The council members argue that regardless of any similarity to the

actions in Bryan, the present case involves zoning and Bryan did not. The

City’s ordinances can be read to label the development plan review process as

zoning, but we are not controlled by the labels a city chooses. The land was

zoned PD twenty-two years prior to the development plan application. The

decision being contested now involved “specific, particular facts,” which

affected “[one] development alone,” and was in “the realm of enforcement with

respect to approval of a specific proposed plan.” See id. at 273 (quotation marks

omitted). A city cannot categorize all its decisions as “zoning” in order to grant

its legislators blanket immunity.

Da Vinci pleaded sufficient facts to overcome the council members’ claim

to absolute immunity.

II. Absolute Quasi-Judicial Immunity

The district court held that “[p]laintiff’s allegations show that Individual

Defendants’[] actions were not essentially judicial in nature and [they] were

not performing functions essentially similar to those of judges when they voted

to deny Plaintiff’s development plan and, therefore, Individual Defendants are

not entitled to quasi-judicial immunity.” In doing so, it considered the factors

enumerated in Butz v. Economou, 438 U.S. 478, 512 (1978).

Absolute quasi-judicial immunity protects officials that “perform

functions comparable to those of judges and prosecutors.” Beck, 204 F.3d at

634 (citing Butz, 438 U.S. at 512-13). Under this “functional approach,” we

7

Case: 14-10880 Document: 00513150242 Page: 8 Date Filed: 08/11/2015

No. 14-10880

look “at the nature of the function performed, not the identity or title of the

actor who performed it.” Id. (citing Buckley v. Fitzsimmons, 509 U.S. 259, 268

(1993)). The Supreme Court has

identified a nonexhaustive list of factors to determine whether

[nonjudicial actors] perform[] “quasi-judicial” functions, and thus

are entitled to absolute immunity: (1) the need to assure that the

individual can perform his functions without harassment or

intimidation; (2) the presence of safeguards that reduce the need

for private damages actions as a means of controlling

unconstitutional conduct; (3) insulation from political influence;

(4) the importance of precedent; (5) the adversary nature of the

process; and (6) the correctability of error on appeal.

Id. (citing Butz, 438 U.S. at 511-13). “No one factor is controlling.” Id.

Da Vinci argues that the district court properly denied the council

members’ claim for absolute quasi-judicial immunity because “[i]n judicial

proceedings, judges do not solicit opposition to, and evidence against, a party

in the proceeding, as happened here.” As to the Butz factors, Da Vinci argues

that there was “absolutely no insulation of the development plan process from

political influence.” That influence was evidenced by the communications

between the council members and members of the community. Further, there

was evidence that the council members did not consider precedent to be of

importance, as they ignored the fact that the council had approved a similar

development plan for a car wash. Da Vinci also contends the process was not

adversarial because, though parties for and against the plan were provided an

opportunity to address the city council, nobody testified under oath and, with

one exception, there was no cross-examination.

The council members did not analyze the Butz factors in their initial

brief. They acknowledge the factors in their reply brief but state they “are not

absolute.” Instead, the council members contend that Texas law controls the

question whether the council members were acting in a quasi-judicial capacity.

They argue that under Texas law, a city’s consideration of whether a

8

Case: 14-10880 Document: 00513150242 Page: 9 Date Filed: 08/11/2015

No. 14-10880

subdivision plat complies with ordinances is a quasi-judicial matter. Thus, the

denial of a development plan application is also quasi-judicial.

We disagree. The council members cite no binding or persuasive

authority indicating that we should abandon our past consistent reliance on

Butz and instead examine state law on quasi-judicial immunity. 3 Under Butz,

Da Vinci has pleaded sufficient facts to overcome the council members’

entitlement to absolute quasi-judicial immunity. First, because private

communications occurred between city council members and citizens, the

evidence-gathering and decision-making process was not judicial in nature.

See Beck, 204 F.3d at 634. Second, several of the Butz factors weigh in Da

Vinci’s favor. As to the second factor, there is no indication that the significant

safeguards that exist in judicial proceedings applied to the council meeting.

The record reflects that opponents and supporters of the development

registered to make presentations to the council, but that is not the equivalent

of a judicial proceeding. No one has identified a provision in the City’s

ordinances that gives procedural rights such as a right to counsel or to cross-

examine witnesses to those seeking approval of a project. Regarding the third

factor, it is evident from the facts of this case that council members are subject

to political pressures. On the fourth factor, Da Vinci’s allegation that the city

council previously approved a similar development plan supports the

conclusion that precedent is not a controlling factor. As to the fifth factor, there

were no allegations that, at the hearing, anyone was put under oath or that

witnesses were called. We have held that a proceeding was adversarial where

the “hearings were conducted by a presiding officer who administered oaths to

witnesses and made evidentiary rulings.” Id. at 636. There certainly were

3 For support of their contention that Texas law controls, the council members cite to

cases from the Third Circuit and the District of Colorado.

9

Case: 14-10880 Document: 00513150242 Page: 10 Date Filed: 08/11/2015

No. 14-10880

advocates and opponents here, but they were not presenting sworn and

competing testimony from which a fact-finder was required, at least

technically, to make an objective decision.

The district court properly denied the council members’ motion for

judgment on the pleadings on the ground of absolute quasi-judicial immunity.

III. Qualified Immunity

The council members argue that qualified immunity protects them from

liability against Da Vinci’s claims of a violation of substantive due process and

of equal protection. “[A] plaintiff seeking to defeat qualified immunity must

show: ‘(1) that the official violated a statutory or constitutional right, and (2)

that the right was “clearly established” at the time of the challenged conduct.’”

Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (quoting

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)).

A. Substantive Due Process Claim

The district court held that Da Vinci sufficiently pleaded a substantive

due process violation. The court determined that Da Vinci asserted a valid

property interest in having the development plan approved. Further, the

complaint supported the conclusion that the council members violated clearly

established law by arbitrarily denying Da Vinci’s property rights.

“To prevail on a substantive due process claim, [a plaintiff] must first

establish that it held a constitutionally protected property right to which the

Fourteenth Amendment’s due process protection applies.” Simi Inv. Co., v.

Harris Cnty., 236 F.3d 240, 249-50 (5th Cir. 2000). “To have a property interest

in a benefit,” a plaintiff must “have a legitimate claim of entitlement to it”;

relevant entitlements are “created and their dimensions are defined by

existing rules or understandings that stem from an independent source such

10

Case: 14-10880 Document: 00513150242 Page: 11 Date Filed: 08/11/2015

No. 14-10880

as state law.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005)

(citation and quotation marks omitted). If the benefit may be granted or denied

at the discretion of government officials, it is not an entitlement. Id. Courts

look for “‘explicitly mandatory language,’ i.e., specific directives to the

decisionmaker that if the regulations’ substantive predicates are present, a

particular outcome must follow.” Ridgely v. FEMA, 512 F.3d 727, 735-36 (5th

Cir. 2008) (quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 463 (1989)).

The substantive due process right Da Vinci claims it was denied is the

right to use its land “in a lawful manner for a lawful purpose.” That is too

broad a definition to be useful for our substantive due process analysis. 4 Da

Vinci must show an entitlement under state or local law to approval of its

development plan. In Ridgely, we held there was no property right in

continued rent assistance because the pertinent statutes and regulations

contained no mandatory language entitling the plaintiffs to the benefit. Id. at

736. Instead, the statutes provided that “FEMA may provide continued

housing assistance.” Id. (citation and quotation marks omitted). We held that

“[b]ecause no ‘specific directives’ limit FEMA’s discretion by compelling it to

provide assistance upon a showing of eligibility, these provisions do not give

rise to a property interest.” Id.

Here, if, under the ordinances, city council members could “grant or deny

[a development plan application] in their discretion,” there was no entitlement

4 Da Vinci argues that its property rights do not need to arise from a particular statute

or ordinance. Instead, it argues that its property right arises generally from Texas law, citing

a decision of this court in which we stated that “Texas law recognizes that the right of the

owner of a property interest to use his property for a lawful purpose” is a “property right” for

due process purposes. Shelton v. City of Coll. Station, 754 F.2d 1251, 1256-57 (5th Cir. 1985).

After Shelton was reheard en banc, though, the full court effectively withdrew that definition

of a protected property right for due process purposes. We ruled on other grounds, and said

“we do not today undertake the task of defining the property right in question or deciding the

related question of whether the state has deprived [the plaintiffs] of any property.” Shelton

v. City of Coll. Station, 780 F.2d 475, 479 (5th Cir. 1986) (en banc).

11

Case: 14-10880 Document: 00513150242 Page: 12 Date Filed: 08/11/2015

No. 14-10880

to the benefit and, therefore, no protected property right. See Castle Rock, 545

U.S. at 756. Da Vinci argues that the council members had no discretion to

deny its development plan because it had met all the guidelines set forth in the

ordinances. We find no such mandatory language. Neither in its pleadings

nor its brief does Da Vinci cite any explicit language in the ordinances

requiring, for example, the city council to grant a development plan application

when all guidelines are met. While Da Vinci is correct that section 9-300(E)(9)

of the ordinances states that “[n]othing listed [in the guidelines] shall limit the

Council’s ability to require more restrictive standards necessary to protect the

public’s health, safety and welfare,” that language does not require the council

to approve a development plan application that meets all the guidelines.

Because there is no “explicitly mandatory language” in the ordinances

requiring city officials to approve a development plan, even where a plan meets

all required guidelines, the city council had discretion to grant or deny the

benefit. Accordingly, Da Vinci did not have a protected property right in the

approval of its development plan. 5

Without a protected property interest, there can be no substantive due

process violation. See Simi Inv. Co., 236 F.3d at 249-50. Because no

constitutional violation has been shown, we need not address the second prong

5 Da Vinci also argues that “Texas courts have also held that, although the granting

of permits is generally considered a privilege and not a right, if one meets the required

criteria to obtain a permit, it may not be lawfully refused, thereby becoming a right.” With

one exception, none of the Texas state cases cited by Da Vinci for support of this argument

addresses protected property rights for due process purposes. The case that does address

constitutionally protected property rights supports our holding. In that decision, the court

stated that “whether a property-holder possesses a legitimate claim of entitlement to a [land-

use] permit or approval turns on whether, under state and municipal law, the local agency

lacks all discretion to deny issuance of the permit or to withhold its approval.” Arbor Bend

Villas Hous., L.P. v. Tarrant Cnty., Hous. Fin. Corp., No. 4:02-CV-478, 2005 WL 548104, at

*18 (N.D. Tex Mar. 9, 2005) (quoting Gardner v. Baltimore Mayor and City Council, 969 F.2d

63, 68 (4th Cir. 1992)).

12

Case: 14-10880 Document: 00513150242 Page: 13 Date Filed: 08/11/2015

No. 14-10880

of qualified immunity. The council members are entitled to qualified immunity

on Da Vinci’s substantive due process claim.

B. Equal Protection Claim

The district court held that Da Vinci pleaded sufficient facts to establish

that the council members’ conduct violated Da Vinci’s “clearly established

constitutional right to equal protection in application of these land-use

regulations,” and the law was “clearly established . . . at the time of the

challenged actions in this case.”

The Supreme Court has recognized “successful equal protection claims

brought by a ‘class of one,’ where the plaintiff alleges that she 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 (2000) (citation omitted).

Da Vinci argues the district court was correct as it sufficiently pleaded

that it was treated differently than other similarly situated landowners

without a rational basis. 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.

In light of this, Da Vinci argues, there was no rational basis for the council

members to deny its development plan application. As to whether the right

was clearly established, Da Vinci argues that, at the time of the alleged acts,

“this court had clearly established that different treatment of similarly

situated parties without a rational basis was a violation of equal protection

rights.”

The council members failed in their initial brief to make any argument

on Da Vinci’s equal protection claim. They discuss the Cooper Project in their

reply brief in the context of their absolute immunity claim, but “[a]rguments

13

Case: 14-10880 Document: 00513150242 Page: 14 Date Filed: 08/11/2015

No. 14-10880

raised by appellants for the first time in reply briefs are waived.” Warren v.

Chesapeake Expl., L.L.C., 759 F.3d 413, 420 (5th Cir. 2014).

We conclude Da Vinci’s well-pleaded facts, which we must accept as true,

“state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 570). Accordingly, the district court’s conclusion

that Da Vinci sufficiently pleaded its equal protection claim was proper.

On the second part of the qualified immunity analysis, Da Vinci argues

that the law surrounding the violation of equal protection rights under facts

similar to those at hand is clearly established and cites several cases of this

circuit. We agree with the district court that “[i]n the context of land-use

decisions, a ‘class of one’ equal protection claim was clearly established . . . at

the time of the challenged actions in this case.” See, e.g., Olech, 528 U.S. at

564 (holding an equal protection claim sufficiently stated where the plaintiff

alleged the municipality intentionally treated similarly situated property

owners differently without a rational basis); Mikeska v. City of Galveston, 451

F.3d 376, 381-82 (5th Cir. 2006) (reversing summary judgment for the

defendant city on an equal protection claim involving a land use decision and

noting that the plaintiff “must show that the difference in treatment with

others similarly situated was irrational”); Bryan, 213 F.3d at 276 (noting that

“[a]s a prerequisite to [an equal protection claim], the plaintiff must prove that

similarly situated individuals were treated differently”).

Because Da Vinci has pleaded facts sufficient to overcome the council

members’ qualified immunity defense on its equal protection claim, the district

court’s denial of the council members’ motion for judgment on the pleadings on

this claim is affirmed.

IV. Discovery Order

After denying the council members’ motion for judgment on the

14

Case: 14-10880 Document: 00513150242 Page: 15 Date Filed: 08/11/2015

No. 14-10880

pleadings, the district court ordered discovery “limited to . . . issues relating to

Individual Defendants’ assertions of absolute, qualified, and official immunity

in defense of the claims asserted against them[.]” 6 It also ordered that

“[s]ummary judgment motions based on immunity, if any,” were to be filed by

a specific date.

Once qualified immunity is raised as a defense, a district court generally

should not permit discovery until the immunity issues have been addressed.

“One of the most salient benefits of qualified immunity is protection from

pretrial discovery, which is costly, time-consuming, and intrusive.” Backe v.

LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). “If [a] complaint alleges facts to

overcome the defense of qualified immunity, the district court may then

proceed . . . to allow the discovery necessary to clarify those facts upon which

the immunity defense turns.” Wicks v. Miss. State Emp’t Servs., 41 F.3d 991,

995 (5th Cir. 1995). We see no reason to treat discovery questions differently

when absolute immunity is claimed.

Here, the district court concluded that Da Vinci pleaded sufficient facts

to overcome the council members’ entitlement to absolute and qualified

immunity. It then ordered limited discovery to explore the factual basis for the

claims of immunity. We have affirmed the district court’s holding that Da

Vinci pleaded sufficient facts to overcome the council members’ entitlement to

a dismissal based on absolute and qualified immunity on the equal protection

claim. The council members do not assert that discovery would exceed the

narrow focus appropriate for the immunity issues. Instead, they argue that

any discovery will intrude into the integrity of the legislative process by

examining their motives, knowledge, and the like. We reject that argument as

6 The district court also ordered discovery on “issues relating to Plaintiff’s claims

against the City of Arlington.”

15

Case: 14-10880 Document: 00513150242 Page: 16 Date Filed: 08/11/2015

No. 14-10880

the decision in question was not a legislative one. Discovery relating to the

council members’ assertions of immunity defenses on Da Vinci’s equal

protection claim is proper. The council members are entitled to qualified

immunity on Da Vinci’s substantive due process claim, though, and discovery

that pertains to that claim was not properly ordered.

***

We AFFIRM the district court’s denial of the council members’ motion

for judgment on the pleadings on Da Vinci’s equal protection claim. We

REVERSE the district court’s denial of the council members’ motion for

judgment on the pleadings on the substantive due process claim and hold that

the council members are entitled to qualified immunity as to that claim. As to

the discovery order, we AFFIRM to the extent discovery relates to the equal

protection claim but REVERSE as to the substantive due process claim.

16