The opinion
United States Court of Appeals,
Fifth Circuit.
No. 95-50401
Summary Calendar.
Gerald ROLF; Cris Moravec; Al Moravec; Joe Hazelwood; Tom
Culbertson; Tony Garza; and J.J. Arzola, Plaintiffs-Appellants,
v.
CITY OF SAN ANTONIO; San Antonio Water System; Nelson Wolff,
official and individual capacity, Frank Wing, official and
individual capacity; Roger Perez, official and individual
capacity; Helen Ayala, official and individual capacity; Juan F.
Solis, III, official and individual capacity; Weir Labatt; Bill
Thornton, official and individual capacity; Yolanda Vera, official
and individual capacity; Nelda Weatherly, official and individual
capacity; Sam Lopez, official and individual capacity; Philip
Barship, official and individual capacity; and Clarence R.
McGowan, official and individual capacity, Defendants-Appellees.
Feb. 5, 1996.
Appeal from the United States District Court for the Western
District of Texas.
Before POLITZ, Chief Judge, and DUHÉ and PARKER, Circuit Judges.
POLITZ, Chief Judge:
Gerald Rolf, Cris Moravec, Al Moravec, Joe Hazelwood, Tom
Culbertson, Tony Garza, and J.J. Arzola, owners of a fractional
share of 3.5 acres in Bexar County, Texas, appeal the district
court's order dismissing their claims against the City of San
Antonio, the San Antonio Water System, and various officials in
their individual and official capacities. We affirm in part,
vacate in part, and remand.
Background
Appellants are a group of landowners who opposed the
construction of the Applewhite Reservoir in San Antonio, Texas.
1
They manifested their opposition, in part, by purchasing a 3.5 acre
tract of land, which was planned for inclusion in the project, and
designating it as an "ecological laboratory." Further, they made
public comments at city council meetings, city water board
meetings, news conferences, and rallies in opposition to the
Applewhite project and in favor of limiting the terms of office for
the mayor and members of the city council. Additionally, they
collected more than 72,000 signatures to force an election on a
proposed initiative ordinance requiring the City of San Antonio to
abandon the project and limiting the terms of the mayor and members
of the council. The voters approved the initiative ordinance and
the city council abandoned the project.
The second amended complaint1 alleges that appellees continued
to seek condemnation of appellants' 3.5 acre tract, but did not
seek condemnation of similarly situated lands. Further, the second
amended complaint alleges that this disparate treatment was
motivated by appellants' opposition to the Applewhite project and
their political stance on term limits.
Appellants' second amended complaint alleges that: (1) their
property was taken without just compensation, (2) they were denied
due process of law, (3) their land was targeted for condemnation in
retaliation for exercising first amendment rights, (4) they were
1
The district court's order refers to facts pled in earlier
complaints but omitted from the second amended complaint. Those
factual allegations were not appropriate for consideration because
the second amended complaint supersedes the earlier complaints.
Jackson v. City of Beaumont Police Dept., 958 F.2d 616 (5th
Cir.1992).
2
denied equal protection of the law, and (5) the condemnation
proceedings violated state law.
The district court dismissed the action on various grounds.2
First, the court held that the just compensation and due process
claims were not ripe.3 Second, the court held that appellants
failed to state a just compensation claim, a due process claim, and
an equal protection claim.4 Third, the court held that appellees
were entitled to qualified immunity for the claims brought against
them in their individual capacities. Finally, the court dismissed
the supplemental state law claims because it had dismissed all of
the federal causes of action. Appellants challenge each of the
court's holdings as well as the court's previous order denying them
leave to file a third amended complaint.
Analysis
A. Subject matter jurisdiction
Appellants claim that their property was taken without just
compensation. The takings clause of the fifth amendment, made
applicable to the states through the fourteenth amendment,5 directs
2
Attached to the motion to dismiss was a copy of an ordinance
passed by the San Antonio City Council. Appellees maintain that
this court should treat the district court's order as a grant of
summary judgment under Rule 56 rather than a Rule 12(b) dismissal
because a matter outside the pleadings was considered. See
Fed.R.Civ.P. 12(b). There is no indication that the district court
gave notice to the parties as required; thus, we treat the court's
dismissal order as grounded on Rule 12(b) rather than Rule 56. See
Norman v. McCotter, 765 F.2d 504 (5th Cir.1985).
3
See Fed.R.Civ.P. 12(b)(1).
4
See Fed.R.Civ.P. 12(b)(6).
5
Samaad v. City of Dallas, 940 F.2d 925 (5th Cir.1991).
3
that "private property [shall not] be taken for public use, without
just compensation."6 A just compensation claim is not ripe, that
is, there is no justiciable case or controversy, until the claimant
unsuccessfully has sought compensation from the state, unless that
state's procedures are inadequate.7 State procedures are
inadequate when they "almost certainly will not justly compensate
the claimant."8 A state's procedure is adequate even though its
law is unsettled whether the claimant would be entitled to
compensation.9
The Texas Supreme Court recently held that, in a case such as
this, a claimant does not state an inverse condemnation claim
unless there has been a direct restriction on the use of the
property.10 Appellants have not alleged a direct restriction on the
use of their land.
The Texas Supreme Court, however, expressly reserved the
question whether a plaintiff states an inverse condemnation claim
by alleging bad faith.11 Because the second amended complaint
6
U.S. Const. Amend. V.
7
Samaad (citing Williamson County Regional Planning Comm'n v.
Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126
(1985)).
8
Id. at 934 (emphasis in original).
9
Id.
10
Westgate, Ltd. v. State of Texas, 843 S.W.2d 448 (Tex.1992).
Accord Kirby Forest Indus. v. United States, 467 U.S. 1, 104 S.Ct.
2187, 81 L.Ed.2d 1 (1984). Kirby indicates that the appellants
have failed to state a claim that their property was taken without
just compensation.
11
Id.
4
alleges bad faith, it is unsettled whether appellants are entitled
to compensation under Texas law. Accordingly, the just
compensation claim is not ripe.12 For the same reason, any alleged
due process violation relating to the alleged taking of property is
premature.13
The district court properly dismissed appellants' claims that
their property was taken without just compensation and without due
process of law.14
B. Failure to state a claim upon which relief can be granted
We review the district court's dismissal of a claim under
Rule 12(b)(6) de novo,15 accepting all well pleaded averments as
true and viewing them in the light most favorable to the
plaintiff.16 Dismissal is not proper unless it appears, based
solely on the pleadings, that the plaintiff can prove no set of
facts in support of the claim(s) warranting relief.17
1. Speech claim
Appellees contend, and the district court held, that
appellants failed to state a first amendment retaliation claim. To
establish such a claim, a plaintiff must prove: (1) defendants
12
See Samaad.
13
Williamson County.
14
See Fed.R.Civ.P. 12(b)(1).
15
Blackburn v. City of Marshall, Tex., 42 F.3d 925 (5th
Cir.1995).
16
Rankin v. City of Wichita Falls, Tex., 762 F.2d 444 (5th
Cir.1985).
17
Id.
5
were acting under color of state law; (2) the plaintiff's
activities were protected under the first amendment; and (3) the
plaintiff's exercise of the protected right was a substantial or
motivating factor for defendant's actions.18 "It is clear that
state action designed to retaliate against and chill political
expression strikes at the heart of the First Amendment."19
The second amended complaint properly states a claim against
appellees for retaliating against appellants for engaging in first
amendment activities. First, the second amended complaint alleges
that appellees acted under color of state law.20 Next, the second
amended complaint clearly alleges that appellants engaged in first
amendment activity; it cannot be gainsaid that speaking out in
opposition to a government policy is protected activity.21 Finally,
the second amended complaint alleges that appellees' actions toward
appellants were motivated by appellants' protected activity. The
second amended complaint supports that assertion with an allegation
that only appellants' property was targeted for condemnation. For
these reasons, the district court's order dismissing the first
amendment retaliation claim is inappropriate and must be vacated.
2. Due process claim
18
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).
19
Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th
Cir.1989) (internal citations and quotations omitted).
20
Appellees do not maintain, as a grounds for affirmance, that
they were not acting under color of state law.
21
See New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710,
11 L.Ed.2d 686 (1964).
6
"In a section 1983 cause of action asserting a due process
violation, a plaintiff must first identify a life, liberty, or
property interest protected by the Fourteenth Amendment and then
identify a state action that resulted in a deprivation of that
interest."22 The second amended complaint alleges that appellees
acted under color of state law to deprive appellants of their
liberty interest in speech.23 Accordingly, appellants have stated
a claim for a violation of substantive due process.24
3. Equal protection claim
The equal protection clause of the fourteenth amendment is
essentially a mandate that all persons similarly situated must be
treated alike.25 We may conduct an equal protection inquiry only
"if the challenged government action classifies or distinguishes
between two or more relevant groups."26 Under the equal protection
analysis, we apply different standards of review depending upon the
right or classification implicated. If a classification
disadvantages a "suspect class" or impinges upon a "fundamental
22
Blackburn, 42 F.3d at 935.
23
See McIntyre v. Ohio Elections Comm'n, --- U.S. ----, 115
S.Ct. 1511, 131 L.Ed.2d 426 (1995) (liberty includes first
amendment rights).
24
The second amended complaint does not clearly allege another
protected liberty interest.
25
Qutb v. Strauss, 11 F.3d 488 (5th Cir.1993), cert. denied,
--- U.S. ----, 114 S.Ct. 2134, 128 L.Ed.2d 864 (1994) (citing City
of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 105 S.Ct.
3249, 87 L.Ed.2d 313 (1985)).
26
Id.
7
right," the classification is subject to strict scrutiny.27
Otherwise, we apply the less stringent "rational basis" review.
Appellants' second amended complaint alleges that they have been
treated differently than similarly situated individuals.
Accordingly, the district court erred by dismissing the equal
protection claim at this stage of the litigation.
C. Qualified immunity
Qualified immunity "shields certain public officials
performing discretionary functions from civil damage liability if
"their actions could reasonably have been thought consistent with
the rights they are alleged to have violated.' "28 The protection
afforded by this defense turns on the objective legal
reasonableness of the defendant's conduct examined by reference to
clearly established law.29 Accordingly, we must determine whether
a reasonable public official would have known that his or her
conduct was illegal.
Accepting as true all well pleaded allegations, reasonable
public officials would have understood that their actions violated
appellants' clearly established constitutional right to be free
from retaliation for exercising their first amendment right to free
speech. Similarly, reasonable officials would have understood that
their actions deprived appellants of their clearly established
27
Id.
28
Duckett v. City of Cedar Park, Tex., 950 F.2d 272, 279 (5th
Cir.1992) (quoting Anderson v. Creighton, 483 U.S. 635, 638, 107
S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987)).
29
Id.
8
liberty interest in speech, and that the alleged differential
treatment denied them equal protection of the law. Accordingly,
the district court erred by determining, at this stage in the
litigation, that appellees, in their individual capacities, were
entitled to qualified immunity.
D. Leave to amend
"Rule 15(a) evinces a bias in favor of granting leave to
amend," when justice so requires.30 "A decision to grant leave is
within the discretion of the court, although if the court lacks a
substantial reason to deny leave, its discretion is not broad
enough to permit denial."31 In exercising its discretion a court
may consider undue delay, bad faith, dilatory motive, prejudice to
the other party, and the futility of the proposed amendments.
The district court's order does not state its reasons for
denying leave. Our review of the record reveals no substantial
reason to deny leave to amend. Appellants should have been granted
leave to file an amended complaint.
E. Supplemental jurisdiction
Finally, the district court's order dismissing the
supplemental state law claims must now be vacated because the
assigned justification, i.e., lack of a federal question, no longer
appertains.
30
Chitimacha Tribe of Louisiana v. Harry L. Laws Co., Inc., 690
F.2d 1157, 1163 (5th Cir.1982), cert. denied, 464 U.S. 814, 104
S.Ct. 69, 78 L.Ed.2d 83 (1983).
31
State of Louisiana v. Litton Mortgage Co., 50 F.3d 1298,
1302-03 (5th Cir.1995) (internal citations and quotations omitted).
9
The judgment of the district court is AFFIRMED IN PART,
VACATED IN PART, AND REMANDED.
10