# Petition for Writ of Certiorari — Sardonell v. Noriega

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 817

## Text

_ Supreme Court

011712 may 202009

No. QFFIOE OF THE CLaRK

In The
Supreme Court of the United States

S

EVA CHARLENE SARDONELL and
DOUGLAS SARDONELL,

Petitioners,

GARY NORIEGA, individually, and as a Council
Member, City of Powder Springs; WAYNE WRIGHT,
individually, and as City Manager, City of
Powder Springs; RICHARD SAILORS, individually,
and as mayor, City of Powder Springs;
VINCE BLACKMON, individually, and as Code
Compliance Officer, City of Powder Springs;
and the CITY OF POWDER SPRINGS,

Respondents.

¢

On Petition For A Writ Of Certiorari
To The United States Court Of Appeais
For The Eleventh Circuit

*

PETITION FOR A WRIT OF CERTIORARI
°

JACQUELINE K. TAyYLor, Eso. ANTHONY J. Viatas, Esa.
J. Tavtor & Associates, LLC Counsel of Record
400 Corp. Spectrum Bldg. P.O. Box 192

1950 Spectrum Circle 102 Ridge Road
Atlanta, GA 30067 Mt. Holly Springs, PA 17065
(770) 857-4383 (717) 486-7702

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

FY we

QUESTION PRESENTED

Whether white citizens who are discriminated
against by governmental officials for renting property to
black citizens, therefore have a cause of action under 42
U.S.C. § 1982?

li

TABLE OF CONTENTS

Page

QUESTION PRESENTED. 0.5 Plaintiffs claim that they had moved the business on or
before April 1, 1999. (Pls.’ Stmt. of Mat. Facts [58] at ¥ 28.)

App. 12

possibly be in violation of some other city ordinance. (Id.
at J 27.) The City Council and Mayor then voted affirma-
tively to grant Mrs. Sardonell’s withdrawal of her land
permit use application. (Id. at { 28.) Plaintiffs made no
allegations at this meeting that they had been wrongly
targeted by the city. (Id. at { 29.)

By this time, Mr. Sardonell had filled out the paper-
work to transfer the business license to the new location.
(Id. at { 30.)® Plaintiffs claim that no business operations
involving the heating and air company took place at the
3891 house after April 1, 1999. (Pls.’ Stmt. of Mat. Facts
[58] at J 24.) Defendants, however, state that after
numerous complaints of business activities at the 3891
house, City Manager Wayne Wright asked the chief of
police to issue a citation. (Defs.’ Stmt. of Mat. Facts [50] at
{ 31.) Wright states that his request was in the normal
course of business and was not the first time he had made
such a request. (Id:)

On April 19, 1999, Mrs. Sardonell was issued a cita-
tion for violating a city zoning ordinance prohibiting
individuals from operating a business without a license.

6 Plaintiffs allege that the business license was never
transferred because the city imposed “roadblocks” to its
transfer. (Pls.’ Stmt. of Mat. Facts [58] at J 29.) Mr. Sardonell
claims that he was not allowed to pay the transfer fee and that
the landlord was told, for the first time in the fourteen years he
had been renting the building, that he had to obtain an
inspection by the fire department and an occupational permit
before the Sardonells could operate their business. (Id. at J 30.)
Mr. Sardonell claims he never received a new or amended
license, and in May 1999, moved his business outside the City of
Powder Springs. (Id. at J 32.)

App. 13

(Defs.’ Stmt. of Mat Facts [50] at ¥ 33; Pls.’ Stmt. of Mat.
Facts [58] at ¥ 24.)7 Plaintiffs claim that at the time Mrs.

7 Neither parties’ statement of the facts contains a
recitation of what happened with the citation. Defendants’
original statement of material facts did give this background,
and it is discussed below simply to provide a timeline of events:

A hearing was held before Judge Steve Yaklin on June 23,
1999. (Defs.’ Stmt. of Mat. Facts [17] at [J 14-15; Id. at Exh. H.)
The city’s position at the hearing was that the Sardonells had
transferred their business license as of April 1, but continued to
conduct business from the 3890 house subsequent to that date.
(Id. at Ex. H. at 2.) The City stated that its officials had observed
vans picking up equipment from the home after April 1. (Id. at
Ex. H. at 3.) After observing the vans for several weeks, the City
concluded that the Sardonells had continued to operate their
business from this location, which was no longer licensed.

Mrs. Sardonell’s argument at the hearing appears to be that,
although she had asked to transfer the business license to the
Finley Road address, she was never informed that the transfer
was complete, and therefore, at the time she was issued the
citation, she had a valid business license for the 3890 house. (Id.
at Ex. H. at 8.) Accordingly, Mrs. Sardonell contended that she
was not guilty of operating a business without a license. She
also stated that, if the City felt that she had violated zoning laws
by having the vans make pick-ups from the 3890 house, she
should have been cited for violating the appropriate zoning ,
laws, not operating without a business license. (Id. at Ex. H. at
8-9.) Mrs. Sardonell made no mention of any discriminatory
animus by the defendants towards her or her husband.

After hearing the arguments of the parties and the
testimony of witnesses who observed the vans at the
Blythewood property, Judge Yaklin stated that although he
acknowledged Mrs. ardonell’s technical defense that the
transfer of the license may not have been finalized at the time of
the citation, he was going to find that at the time the citation was
issued, Mrs. Sardonell was no longer licensed to conduct
business at the Blythewood Circle house. (Id. at Ex. H. at 11.)

App. 14

Sardonell received the citation, Mr. Sardonell owned two
business vans and, at most times, only one of these vans
was parked at their home. (Pls.’ Stmt. of Mat. Facts [58] at
{ 26.) Plaintiffs then filed suit on July 27, 1999. (compl.
[1].) As noted below, the criminal charge against Mrs.
Sardonell was later dismissed.

Plaintiffs’ complaint alleges that defendants’ actions
violated the Fair Housing Act, as well as 42 U.S.C.
§§ 1981, 1982, 1983, and 1985. On January 12, 2000, defen-
dants filed a motion for abstention on the grounds that
there was an ongoing state proceeding concerning this
case. (Mot. for Abstention [10].) Although discovery had
not yet closed, defendants filed a motion for summary
judgment on January 31, 2000. (First Mot. for Summ. J.
[17].) On March 3, 2000, the Court issued an Order deny-
ing without prejudice defendants’ motion for summary
judgment and suspending discovery. (Order [31].) The
Court later granted defendants’ motion for abstention,
and the case was stayed for a period of time. (Order [35].)
Upon motion by plaintiffs to reopen the case because
an entry of nolle prosequi had been entered as to the

Because the violation carried with it up to a twelve month jail
sentence, Mrs. Sardonell then requested that the matter be
transferred to State Court for trial. (Id. at Ex. H. at 12.) At the
conclusion of the June 23 hearing, Judge Yaklin signed an order
binding the case over to State Court. As of the time Plaintiff filed
her complaint in this Court on July 23, 1999, the State Court had
not yet scheduled a trial or taken any further action regarding
the citation.

App. 15

underlying state claim, the Court reopened these pro-
ceedings. (Order [41].)®

Plaintiffs thereafter filed a motion to file a second
amended complaint. (Mot. for Leave to File Pls.’ Second
Amendment to Compl. [48].) Defendants have renewed
their motion for summary judgment. (Mot. for Summ. J.
[50].) The Court addresses these and several other miscel-
laneous motions in this Order.

DISCUSSION

I. Motion for Summary Judgment

A. Summary Judgment Standard

Summary judgment is appropriate when the “plead-
ings, depositions, answers to interrogatories, and admis-
sions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a
matter of law.” Fep. R. Civ. P. 56(c). A fact’s materiality is
determined by the controlling substantive law. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is
genuine when the evidence is such that a reasonable jury
could return a verdict for the nonmovant. Id. at 249-50.

Summary judgment is not properly viewed as a
device that the trial court may, in its discretion, imple-
ment in lieu of a trial on the merits. Instead, Rule 56 of
the Federal rules of Civil Procedure mandates the entry
of summary judgment against a party who fails to make a

§ Curiously, plaintiffs appealed the grant of their own
motion to reopen. (Notice of Appeal [44].)

App. 16

showing sufficient to establish the existence of every
element essential to that party’s case on which that party
will bear the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In such a situation, there
can be no genuine issue as to any material fact, as a
complete failure of proof concerning an essential element
of the non-moving party’s case necessarily renders all
other facts immaterial. Id. at 322-323 (quoting Feb. R. Cr.
P. 56(c)).

The movant bears the initial responsibility of assert-
ing the basis for his motion. Id. at 323. However, the
movant is not required to negate his opponent's claim.
The movant may discharge his burden by merely “ ‘show-
ing’ — that is, pointing out to the district court — that there
is an absence of evidence to support the non-moving
party’s case.” Id. at 325. After the movant has carried his
burden, the non-moving party is then required to “go
beyond the pleading” and present competent evidence
designating “specific facts showing that there is a genu-
ine issue for trial.” Id. at 324. While the court is to view
all evidence and factual inferences in a light most favor-
able to the non-moving party, Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988), “the mere existence of
some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for sum-
mary judgment; the requirement is that there be no genu-
ine issue of material fact.” Anderson, 477 U.S. at 247-48
(1986).

App. 17

B. Plaintiffs’ Claims
1. Fair Housing Act

Before addressing the merits of plaintiffs’ Fair Hous-
ing Act claim, the Court pauses to state that it is difficult
to even discern legal underpinnings of this claim. In their
complaint, plaintiffs state, “The conduct of the Defen-
dants constitute a violation for the 42 U.S.C. § 3604 in that
defendants acted in concert and under color of state law
to conspire to deny plaintiffs the right to rent their resi-
dence to individuals without regard to race. (Compl. [1]
at J 21.) That is the full extent that the Fair Housing Act
is discussed in the complaint. In their motion for sum-
mary judgment, defendants argue that plaintiffs have
failed to state a cognizable claim under the Fair Housing
Act. (Br. in Supp. of Mot. for Summ. J. [50] at 10-38.) The
Court must agree.

Plaintiffs contend that they have stated a claim under
42 U.S.C. § 3604. In its entirety, § 3064 reads:

As made applicable by section 3603 of this title
and except as exempted by sections 3603(b) and
3607 of this title, it shall be unlawful —

(a) To refuse to sell or rent after the making of;
a bona fide offer, or to refuse to negotiate for the
sale or rental of, or otherwise make unavailable
or deny, a dwelling to any person because of
race, color, religion, sex, familial status, or
national origin.

(b) To discriminate against any person in the
terms, conditions, or privileges of sale or rental
of a dwelling, or in the provision of services or
facilities in connection therewith, because of

App. 18

race, color, religion, sex, familial status, or
national origin.

(c) To make, print, or publish, or cause to be
made, printed, or published any notice, state-
ment, or advertisement, with respect to the sale
or rental of a dwelling that indicates any prefer-
ence, limitation, or discrimination based on
race, color, religion, sex, handicap, familial sta-
tus, or national origin, or an intention to make
any such preference, limitation, or discrimina-
tion.

(d) To represent to any person because of race,
color, religion, sex, handicap, familial status, or
national origin that any dwelling is not available
for inspection, sale, or rental when such dwell-
ing is in fact so available.

(e) For profit, to induce or attempt to induce
any person to sell or rent any dwelling by repre-
sentations regarding the entry or prospective
entry into the neighborhood of a person or per-
sons of a particular race, color, religion, sex,
handicap, familial status, or national origin.

(f)(1) To discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling
to any buyer or renter because of a handicap of -

(A) that buyer or renter,

(B) a person residing in or intending to reside
in that dwelling after it is so sold, rented, or
made available; or

(C) any person associated with that buyer or
renter.

(2) To discriminate against any person in the
terms, conditions, or privileges of sale or rental

:
'
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App. 19

of a dwelling, or in the provision of services or
facilities in connection with such dwelling,
because of a handicap of -

(A) that person; or

(B) a person residing in or intending to reside
in that dwelling after it is so sold, rented, or
made available; or

(C) any person associated with that person.

(3) For purposes of this subsection, discrimina-
tion includes -

(A) a refusal to permit, at the expense of the
handicapped person, reasonable modifications
of existing premises occupied or to be occupied
by such person if such modifications may be
necessary to afford such person full enjoyment
of the premises except that, in the case of a
rental, the landlord may where it is reasonable
to do so condition permission for a modification
on the renter agreeing to restore the interior of
the premises to the condition that existed before
the modification, reasonable wear and tear
excepted.

(B) a refusal to make reasonable accommoda-
tions in rules, policies, practices, or services,
when such accommodations may be necessary
to afford such person equal opportunity to use
and enjoy a dwelling; or (C) in connection with
the design and construction of covered multi-
family dwellings for first occupancy after the
date that is 30 months after September 13, 1988,
a failure to design and construct those dwellings
in such a manner that -

App. 20

(i) the public use and common use portions of
such dwellings are readily accessible to and
usable by handicapped persons;

(ii) all the doors designed to allow passage
into and within all premises within such dwell-
ings are sufficiently wide to allow passage by
handicapped persons in wheelchairs; and

(iii) all premises within such dwellings contain
the following features of adaptive design:

(I) an accessible route into and through the
dwelling;

(II) light switches, electrical outlets, thermo-
stats, and other environmental controls in acces-
sible locations;

(III) reinforcements in bathroom walls to allow
later installation of grab bars; and

(IV) usable kitchens and bathrooms such that |
an individual in a wheelchair can maneuver
about the space.

(4) Compliance with the appropriate require-
ments of the American National Standard for
buildings and facilities providing accessibility
and usability for physically handicapped people
(commonly cited as “ANSI A117.1”) suffices to
satisfy the requirements of paragraph (3)(C)(iii).

(5)(A) Ifa State or unit of general local govern-
ment has incorporated into its laws the require-
ments set forth in paragraph (3)(C), compliance
with such laws shall be deemed to satisfy the
requirements of that paragraph.

(B) A State or unit of general local government
may review and approve newly constructed
covered multifamily dwellings for the purpose

App. 21

of making determinations as to whether the
design and construction requirements of para-
graph (3)(C) are met.

(C) The Secretary shall encourage, but may not
require, States and units of local government to
include in their existing procedures for the
review and approval of newly constructed cov-
ered multifamily dwellings, determinations as
to whether the design and construction of such
dwellings are consistent with paragraph (3)(C),
and shall provide technical assistance to States
and units of local government and other persons
to implement the requirements of paragraph

(3)(C).

(D) Nothing in this subchapter shall be con-
strued to require the Secretary to review or
approve the plans, designs or construction of all
covered multifamily dwellings, to determine
whether the design and construction of such
dwellings are consistent with the requirements
of paragraph 3(C).

(6)(A) Nothing in paragraph (5) shall be con-
strued to affect the authority and responsibility
of the Secretary or a State or local public agency
certified pursuant to section 3610(f)(3) of this
title to receive and process complaints or other-
wise engage in enforcement activities under this
subchapter. |

(B) Determinations by a State or a unit of gen-
eral local government under paragraphs (5)(A)
and (B) shall not be conclusive in enforcement
proceedings under this subchapter.

(7) As used in this subsection, the term “cov-
ered multifamily dwellings” means -

App. 22

(A) buildings consisting of 4 or more units if
such buildings have one or more elevators; and

(B) ground floor units in other buildings con- .
sisting of 4 or more units.

(8) Nothing in this subchapter shall be con-
strued to invalidate or limit any law of a State or
political subdivision of a State, or other jurisdic-
tion in which this subchapter shall be effective,
that requires dwellings to be designed and con-
structed in a manner that affords handicapped
persons greater access than is required by this
subchapter.

(9) Nothing in this subsection requires that a
dwelling be made available to an individual
whose tenancy would constitute a direct threat
to the health or safety of other individuals or
whose tenancy would result in substantial phys-
ical damage to the property of others.

42 U.S.C. § 3604.

Defendants contend that plaintiffs have failed to state
a claim that any of the defendants, in either their official
or individual capacities, discriminated against plaintiffs
in violation of the FHA by intentionally discriminating,
taking actions that create a disparate impact, or failing to
make appropriate accommodations. Indeed, plaintiffs fail
to allege any impact on the rental of their home to the
African-American family, and it would seem that plain-
tiffs lack any standing to bring a FHA claim.? In response,

9 Defendants also point out that the FHA exempts “any
single-family house sold or rented by an owner provided that
such individual owner does not own more than three such
single-family houses at one time.” 42 U.S.C. § 3603(b)(1).

App. 23

plaintiffs state that their claims “are based upon the
Defendants’ violation of 42 U.S.C. § 3604 sections (2), (3),
and (5).” (Pls.’ Mem. and Opp’n to Defs.’ Mot. for Summ.
J. [58] at 17.) In support of her argument that these
subsections provide plaintiffs relief, however, plaintiffs’
counsel cites no cases in which § 3604(2), (3), or (5) are
mentioned. (See id. at 18-19.) This is not surprising, as
there are no subsections (2), (3), or (5) to § 3604.

The Court has conducted its own independent anal-
ysis, and simply cannot discern the basis of plaintiffs’
claims. From the facts alleged by plaintiffs, it appears that
what they are trying to claim is that defendants retaliated
against them for renting to non-whites. Plaintiffs, how-
ever, have failed to provide one cite to a case in which
this sort of claim was cognizable under the FHA. Plain-
tiffs are not acting pro se. In fact, they have had two
different firms work on this case. As such, the Court
would think that if counsel were so convinced that such a
case existed, able counsel would have been able to iden-
tify such a case, or at least cite to analogous cases. Instead
of citing any case law, however, plaintiffs simply repeat
the facts of the case again. Without any direction from
plaintiffs as to the legal underpinnings of their FHA
claim, the Court has no option but to GRANT defen-
dants’ motion for summary judgment on this count.

2. Section 1983

Plaintiffs’ second claim is that “[t]he conduct of the
defendants [is] actionable under 42 U.S.C. § 1983 as a
violation of the plaintiffs’ right to equal protection under
the laws and substantive due process, as well as their

App. 24

right not to be deprived of property rights without pro-
cedural due process.” (Compl. [1] at { 23.) Section 1983
provides a federal remedy for the deprivation of rights,
privileges, or immunities protected by the Constitution or
the laws of the United States.1° See Patsy v. Board of
Regents, 457 U.S. 496, 502-08 (1982); Mitchum v. Foster, 407
U.S. 225, 238-42 (1972); McNeese v. Board of Educ., 373 U.S.
668, 671-72 (1963). In order to establish a claim under
§ 1983, plaintiffs must show a violation of a right secured
by the Constitution of the United States, and also that the
deprivation of that right was committed by a person
acting under color of state law. Cummings v. DeKalb
County, 24 F.3d 1349 (11th Cir. 1994); see also Graham v.
Connor, 490 U.S. 386, 393-94 (1989) (“§ 1983 ‘is not itself a
source of substantive rights,’ but merely provides ‘a

10 42 U.S.C. § 1983 provides:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any Sate
or Territory or the District of Columbia, subjects or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in the action at law, suit in equity,
or other proper proceedings for redress, except that in
any action brought against a judicial officer for an act
or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless
declaratory decree was violated or declaratory relief
was unavailable. For the purposes of this section, an
Act of Congress applicable exclusively to the District
of Columbia shall be considered to be a statute of the
District of Columbia.

App. 25

method for vindicating federal rights elsewhere con-
ferred’ ”) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3
(1979)).

In their complaint, plaintiffs claim that defendants’
behavior violated their rights to equal protection under
the law, substantive due process, and the right not to be
deprived of property rights without procedural due pro-
cess. (Compl. [1] at { 23.) Plaintiffs’ brief in response to
defendants’ motion for summary judgment provides no
further elucidation as to the legal underpinnings of this
claim. The Court nonetheless reviews the elements of
each constitutional claim to illustrate why plaintiffs’
claim fails.

a) Equal Protection

“Equal protection claims can be divided into three
broad categories. The first and most common type is that
a statute discriminates on its face.” E&T Realty v. Strick-
land, 830 F.2d 1107, 1112 n.5 (11th Cir. 1987) (citations
omitted). Plaintiffs do not assert that such a statute is at
issue in this case. “The second type of equal protection
claim is that neutral application of a facially neutral stat-
ute has a disparate impact.” Id. Plaintiff’s complaint does
not appear to assert a disparate impact claim.

“The third type of claim is that defendants are
unequally administering a facially neutral statute.” Id.
While a liberal reading of plaintiffs’ pleading may indi-
cate that this is the type of claim that they are attempting
to bring, they have failed to assert the required elements
of this claim. “In order to prevail on an equal protection

an

App. 26

claim based on the application of a facially neutral stat-
ute, it must be established that: (1) the plaintiff was
treated differently than similarly situated persons; and (2)
the defendant unequally applied the facially neutral stat-
ute for the purpose of discriminating against the plain-
tiff.” Strickland v. Alderman, 74 F.3d 260, 264 (11th Cir.
1996) (citing E&T Realty, 830 F.2d at 1109-10). Regarding
the second prong, an “unequal application” claim
- requires “an element of intentional or purposeful dis-
crimination.” Snowden v. Hughes, 321 U.S. 1, 8 (1944).

The Court assumes that plaintiffs’ equal protection
claim is that defendants selectively enforced the city’s
Home Occupation Business License requirement, refused
to transfer their business license, and refused to grant
plaintiffs a land use permit, and cited Mrs. Sardonell for
operating a business without a license for the discrimina-
tory reason that plaintiffs had rented their other house to
an African-American family. In order to state a claim for
selective enforcement, however, plaintiffs must show that
there were other similarly situated individuals who were
treated differently. In their brief in opposition to defen-
dants’ motion for summary judgment, plaintiffs state “the
affidavits of John Long and Gordon and Sheila Powell all
set forth their observation that there are numerous viola-
tions of the City’s municipal ordinances and in and
around the neighborhood that the plaintiffs live in.” (Pls.’
Mem. and Opp’n to Defs.’ Mot. for Summ. J. [58] at 30.)
Upon reviewing those affidavits, however, the Court saw
no mention of instances of the City failing to enforce City
ordinances. (Affs. [56].) Having provided the Court with
no comparators at all, similarly situated or not, plaintiffs’
equal protection claim fails as a matter of law.

App. 27

b) Procedural and Substantive Due Process

The Court is unsure of the basis of plaintiffs’ substan-
tive due process claim. Plaintiffs cite one case is [sic]
support of their claim, Hibben v. Smith, 191 U.S. 310
(1903). Hibben involved a challenge to the method in
which real property was assessed. The Court can find no
correlation between Hibben and the present case that
would serve to elucidate plaintiffs’ due process claims. In
their complaint, plaintiffs also allege that defendants
have violated their “right not to be deprived of property
without due process of law.” (Compl. [1] at {| 23.) As with
the previous two claims, plaintiffs fail to flesh out the
basis for their procedural due process claim. It is insuffi-
cient for a plaintiff to merely allege a claim and in sup-
port recite the facts without providing any legal analysis.
While a plaintiff need only provide a defendant notice of
his claims in the complaint, at the summary judgment
stage, the nonmovant certainly should be prepared to
argue his claim. This necessarily involves citing legal
authority or, if none exists, explaining to the court why it
should forge new ground in the law. Here, plaintiffs have
done neither. The Court will not act as legal advocate for
one party, doing its legal research and creating its argu-
ments, as it would be unfair to the other side to do so. In
the present case, the Court is surprised defendants were
even able to respond to plaintiffs’ claims, as vague as
plaintiffs were in making them.!!

11 Although the Court is uncertain of the exact nature of
plaintiffs’ claims, it would appear that both their substantive
and procedural due process claims are foreclosed under Rymer
v. Douglas County, 764 F.2d 796 (11th Cir. 1985). In Rymer, the

- App. 28

Plaintiff has failed to establish a prima facie case of
§ 1983 discrimination. As stated above, a § 1983 claim

plaintiffs sued the county after the county issued a building
permit for a lot that turned out to be unsuitable for residential
use because a high water table precluded the use of a septic
system. As to the substantive due process claim, the court
stated:

The current test in this circuit as to whether there has
been a violation of substantive due process in the
context of § 1983 is twofold. First it must be
determined whether there has been a deprivation of a
federal constitutionally protected interest, and
secondly, whether the deprivation, if any, is the result
of an abuse of governmental power sufficient to raise
an ordinary tort to the stature of a constitutional
violation.

Id. at 801. In the present case, plaintiffs have failed to allege a
deprivation of a constitutionally protected interest. If plaintiffs
base this claim on the failure of Powder Springs to grant them a
land use permit, the claim clearly fails. See DeKalb Stone, Inc. v.
County of DeKalb, Georgia, 106 F.3d 956, 959 (11th Cir. 1997) (“It is
well established that land use rights, as property rights
generally, are state-created rights [rather than constitutional].”).

As to procedural due process, the Rymer court stated as
follows:

Under Hudson, a plaintiff cannot bring a property
claim against a governmental body if the~
governmental body being sued provides a meaningful
post-deprivation remedy. 104 S. Ct. at 3203. The Court
determined that a constitutional tort did not exist
unless the state refused to provide a meaningful post-
deprivation remedy. It is our determination that the
law of Georgia provides an adequate means to address
the claims alleged by appellants in this case. A county
and its officials can be sued under Georgia law for the
type of injury alleged by the appellants.

Id. at 803.

App. 29

requires a showing of two elements: “(1) the act or omis-
sion deprived plaintiff of a right, privilege or immunity
secured by the Constitution or laws of the United States,
and (2) that the act or omission was done by a person
acting under color of law.” Parratt v. Taylor, 451 U.S. 527,
535 (1981), overruled on other grounds by Daniels v. Wil-
liams, 474 U.S. 327, 330 (1986). Plaintiff has failed to assert
that he was denied a federal right, privilege, or immu-
nity.!2 Accordingly, the Court GRANTS defendants’
motion for summary judgment as to plaintiff’s § 1983
claim.}3

12 A violation of §§ 1981, 1982, and 1985 could also give rise
to a § 1983 claim, but as discussed in greater detail below,
plaintiffs have failed to make a prima facie case under any of
these statutes either.

13 In addition to this fatal flaw, defendants also argue that
defendants Noriega and Sailors were entitled to legislative
immunity because they were acting in their official capacities
ruling on zoning and land use issues. See Baytree of Inverray
Realty Partners v. City of Lauderhill, 873 F.2d 1407, 1409 (11th Cir.
1989) (holding absolute legislative immunity available for
defendants regarding failure to grant an application to amend a
city zoning ordinance). Further, defendants allege that all
individual defendants are entitled to qualified immunity
because plaintiffs have failed to establish that they acted in
violation of clearly established law. Lastly, defendants contend
that the City of Powder Springs and the defendants in the
official capacities are immune from suit because plaintiffs failed
to establish liability under Monnell v. Department of Soc. Servs.,
436 U.S. 658, 690 (1978). Having found that plaintiffs failed to
establish that they were denied a federal right, the Court need
not reach any of these issues. It notes, however, that all of these
defenses appear to be sound.

App. 30

3. Section 1981

Plaintiffs’ third claim is that defendants violated 42
U.S.C. § 1981. Section 1981 prohibits racial discrimination
in the making and enforcing of contracts. The statute
reads:

All persons within the jurisdiction of the United
States shall have the same rights in every State
and Territory to make and enforce contracts, to
sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings
for the security of persons and property as is
enjoyed by white citizens.

42 U.S.C. § 1981.

To establish a prima facie case of discrimination
under § 1981, a plaintiff must prove purposeful discrimi-
nation. Patterson v. McLean Credit Union, 491 U.S. 164, 175
(1989). The elements of a section 1981 claim are: “(1) That
plaintiff is a member of a racial minority; (2) An intent to
discriminate on the basis of race by the defendant; and (3)
That the discrimination concerned . . . the right to ‘make
and enforce contracts.’” Baker v. McDonald's Corp., 686
F. Supp. 1474, 1481 (S.D. Fla. 1987), aff'd by 865 F.2d 1272.
Although the language of § 1981 speaks of racial minor-
ities, it is applicable to racial discrimination against white
persons as well. See McDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273, 287 (1976).14 Plaintiffs, however, do not
appear to be alleging that they were discriminated
against because they were white, but rather, because they
entered into a contract with a black person. Plaintiffs

14 The Court’s understanding of the facts is that while Mrs.
Sardonell’s tenants are black, plaintiffs are both white.

App. 31

have not cited any case law allowing this sort of “associa-
tion” claim under § 1981. Furthermore, while there are
circumstances where a plaintiff may have standing to
assert a claim on behalf of a third party, plaintiffs have
not alleged that this is what they are doing, nor do the
facts indicate that third-party standing would be appro-
priate in this case.

More importantly perhaps, plaintiffs have not
asserted that defendants interfered with their ability to
“make and enforce contracts.” None of the defendants’
actions related to the agreement between Mrs. Sardonell
and the tenants, and there is no indication that the rental
agreement was impacted in any way by defendants’
alleged actions. Accordingly, defendants’ motion for sum-
mary judgment is GRANTED as to plaintiffs’ § 1981
claim.

4. Section 1982

Plaintiffs’ fourth claim alleges a violation of 42 U.S.C.
§ 1982. Section 1982 provides: “All citizens of the United
States shall have the same right, in every State and Terri-
tory, as is enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold, and covey [sic] real and per-
sonal property.” Again, as with the claims discussed
above, plaintiffs have failed to describe the legal under-
pinnings of their claim, and plaintiffs’ situation would
not appear to fit within the scope of a § 1982 claim. In a
typical § 1982 claim, a plaintiff must show:

(1) that he is a member of a racial minority; (2)
that he applied for and was qualified to rent or
purchase certain property or housing; (3) that he

App. 32

was rejected; and (4) that the housing or rental
opportunity remained available thereafter.

Bell v. Mike Ford Realty Co., 857 F. Supp. 1550 (S.D. Ala.
1994). Plaintiffs’ claim simply does not fit this framework,
and plaintiffs have provided the Court with no further
explanation of why they feel they have a cognizable
§ 1982 claim. Accordingly, plaintiffs’ § 1982 claim fails as
a matter of law.

5. Section 1985

Plaintiffs’ last claim is that defendants entered into a
conspiracy to deprive plaintiff of equal protection of the
laws in violation of 42 U.S.C. § 1985. Although plaintiffs
do not specify, the Court assumes that they are bringing
their claim under § 1985(3), which provides in part:

If two or more persons .. . conspire . . . for the
purpose of depriving, either directly or indi-
rectly, any person or class of persons of the
equal protection of the laws, or of equal privi-
leges and immunities under the laws; or for the
purpose of preventing or hindering the constitu-
ted authorities of any State or Territory from
giving or securing to all persons within such
State or Territory the equal protection of the
laws; .. . in any case of conspiracy set forth in
this section, if one or more persons engaged
therein do, or cause to be done, any act in fur-
therance of the object of such conspiracy,
whereby another is injured in his person or
property, or deprived of having and exercising
any right or privilege of a citizen of the United
States, the party so injured or deprived may

App. 33

have an action for the recovery of damages occa-
sioned by such injury or deprivation, against
any one or more of the conspirators.

42 U,.S.C. § 1985(3).

This section was intended to encompass only those
conspiracies motivated by animus against the kind of
classes Congress was trying to protect. Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971); Kimble v. D.J.
McDuffy, Inc., 648 F.2d 340, 347 (5th Cir.), cert. denied, 454
U.S. 1110 (1981). The central concern of the enactors of 42
U.S.C. § 1985 was “combating the violent and other
efforts of the Klan and its allies to resist and to frustrate
the intended effects of the Thirteenth, Fourteenth and-
Fifteenth Amendments.” United Bhd. of Carpenters &
Joiners, Local 610 v. Scott, 463 U.S. 825, 837 (1983). Before a
defendant can be held liable under this section, a plaintiff
must be a victim of a class-based discrimination. Crowe v.
Lucas, 595 F.2d 985 (5th Cir. 1979). A plaintiff in an action
under this section must demonstrate he is a member of
some class discriminated against, otherwise, his claim
must fail. Hutchens v. Beckham, 521 F. Supp. 426, 429 (S.D.
Ga. 1981).

In addition, in order to recover under § 1985(3),
plaintiffs must allege and prove the following elements:

(1) a conspiracy;

(2) for the purpose of depriving, directly or
indirectly, any person or class of persons of the
equal protection of the laws or of equal privi-
leges and immunities under the laws;

(3) an overt act in furtherance of the object of
the conspiracy; and

App. 34

(4) that the plaintiff (a) was injured in his per-
son or property, or (b) was deprived of having
and exercising any right or privilege of a United
States citizen.

Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986), abro-
gated on other grounds by Nolin v. Isbell, 207 F.3d 1253 (11th
Cir. 2000). “the language of Section 1985 which requires
an intent to deprive one of equal protection or equal
privileges and immunities means that there must be some
racial or otherwise class-based invidiously discriminatory
animus behind the conspirators’ action.” Id. at 1007-08.
Additionally, merely conclusory, vague and general alle-
gations of conspiracy are not sufficient. Fullman v. Grad-
dick, 739 F.2d 553, 556-57 (11th Cir. 1984). “[C]ourts insist
that plaintiffs state with specificity the facts supporting
an allegation of conspiracy in order to control frivolous
conspiracy suits under §§ 1983.” Schlosser v. Coleman, 818
F. Supp. 1534, 1537 (M.D. Fla. 1993) (citing Slotnick v.
Staviskey, 560 F.2d 31 (1st Cir. 1977)). |

As with their other claims, plaintiffs have done noth-
ing more than repeat the facts with no explanation of
their legal significance. Plaintiffs have not alleged that
they were a member of a class discriminated against and
have not alleged a conspiracy with specificity. Accord-
ingly, plaintiffs’ § 1985 claim fails as well.

II. Plaintiffs’ Motion for Leave to File a Second
Amended Complaint

On December 12, 2000, plaintiffs filed a motion to
amend their complaint in order to add two new defen-
dants, Betty Jo Murphy and Catherine Rapener, and to

App. 35

add several new factual allegations as well as a state law
claim. (Mot. for Leave to File Pls.’ Second Am. to Compl.
[48].) Defendants have opposed the motion to amend on
the grounds that (1) at the time plaintiffs filed their
motion to amend, the case has been ongoing for fifteen
months; (2) discovery had closed; (3) plaintiffs have had
full knowledge since their depositions were taken in
March 2000 of whatever role Murphy and Rapener
played; (4) plaintiffs have supplied no reason for the
delay in adding these parties and claims; (5) no new facts
have been developed since discovery; and (6) plaintiffs
have failed to properly present a request to add new
parties. (Id.) Although plaintiffs filed a reply to defen-
dants’ response, they failed to address any of these con-
cerns, and instead simply argued that courts usually
liberally allow amendment and that they would be
unable to bring claims against the new defendants if the
Court did not grant their motion. (Pls.’ Reply to Defs.’
Opp’n to Pls’ Mot. for Leave to File Second Am. Compl.
[57].)

At this stage in the litigation, Rule 15(a) of the Fed-
eral Rules of Civil Procedure allows a party to amend its
pleading “only by leave of court or by written consent of
the adverse party; and leave shall be freely given when
justice so requires.” Fed. R. Civ. P. 15(a). “Courts have
interpreted [amendment] provisions liberally, in line with
the Federal Rules’ overall goal of resolving disputes,
insofar as possible, on the merits and in a single judicial
proceeding.” Spartan Grain & Mill Co. v. Ayers, 517 F.2d

App. 36

214, 220 (5th Cir. 1975).15 In explaining the amendment
standard, the Eleventh Circuit has observed that “unless
a substantial reason exists to deny leave to amend, the
discretion of the district court is not broad enough to
permit denial.” Shipner v. Eastern Air Lines, Inc., 868 F.2d
401, 407 (11th Cir. 1989). In determining whether a sub-
stantial reason exists to deny leave to amend, the district
court should consider the following factors: (1) undue
delay, bad faith, or dilatory motive on the part of the
movant, (2) repeated failure to cure deficiencies by
amendments previously allowed, (3) undue prejudice to
the opposing party by virtue of the allowance of the
amendment, and (4) futility of amendment. Foman v.
Davis, 371 U.S. 178, 182 (1962).

The Court denies plaintiff’s motion to amend on the
basis of plaintiffs’ undue delay. Plaintiffs have offered no
explanation why they did not bring these claims at the
time they filed their original complaint or at least soon
after taking the depositions in March 2000. Instead, plain-
tiffs have delayed until after the discovery period has run
in the case before attempting to add the claims. Permit-
ting this amendment could trigger another discovery
period and would subject defendants to further expense
as a result of plaintiffs’ dilatory actions.

In addition, defendants are correct that in order to
add new defendants, Rule 20 is what controls rather than

15 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc), the Eleventh Circuit court of Appeals adopted
as binding precedent all of the decisions of the former Fifth
Circuit Court of Appeals handed down prior to the close of
business on September 30, 1981.

a —_———

seen a

App. 37

Rule 15. Rule 20 of the Federal Rules of Civil Procedure
provides that all persons may be joined in one action as
defendants if plaintiff asserts against them any right to
relief arising out of the same transaction or occurrence
and if questions of law and fact common to all defendants
will arise in the action. Fed. R. Civ. P. 20. Even if the
Court were to construe plaintiffs’ motion as one to add
new parties under Rule 20, the motion fails for the same
reason as their motion to add new allegations and add
the state claim. Plaintiffs did not seek to add defendants
Murphy and Rapener until after the discovery period had
expired, and the Court concludes that they unduly
delayed in seeking to add these defendants. Accordingly,
the Court DENIES plaintiffs’ motion to join Murphy and
Rapener as party defendants.

III. Plaintiffs’ Motion to Strike

Plaintiffs have brought a motion to strike portions of
defendants’ brief in support of their motion for summary
judgment. (Mot. to Strike Portions of the Defs.’ Br. in
Supp. of Mot. for Summ. J. [60].) In their motion to strike,
plaintiffs argue (1) that the Court should not consider an
attachment to the affidavit of Catherine Rapener which
purports to be a business license, but which has obvi-
ously been altered; (2) that the Court should not consider
the transcripts of the City Council meetings because they
are hearsay and not reliable; and (3) that several cases
cited by defendants were not in proper citation form and
therefore should not be considered. The Court did not
rely on the Rapener affidavit or the transcripts in grant-
ing defendants’ motion for summary judgment. Accord-
ingly, there is no need to reach the issue of whether they

App. 38

should be stricken. As to defendants’ citations, the Court
was able to find the cases cited without much difficulty.
The fact that defendants’ counsel may not have cited the
cases in perfect “Bluebook” form is not a legitimate rea-
son to strike the cites from defendants’ argument.
Accordingly, plaintiffs’ motion to strike is DENIED.

CONCLUSION

For the foregoing reasons, the Court finds that plain-
tiffs’ Motion for Leave to File a Second Amendment to
Complaint [48] is DENIED, defendants’ Motion for Sum-
mary Judgment [50] is GRANTED, plaintiffs’ Motion to
Strike Portions of Defendants’ Brief [60] is DENIED,
plaintiffs’ Motion for Hearing on Defendants’ Motion for
Summary Judgment [61] is DENIED, plaintiffs’ Motion
for Leave of Court to File Excess Page Limitation [65] is
GRANTED, and plaintiffs’ Motion to Continue Consider-
ation of Defendants’ Motion for Summary Judgment [66]
is DENIED AS MOOT.

SO ORDERED, this 19 day of April, 2001.

/s/ Julie E. Carnes
JULIE E. CARNES
UNITED STATES DISTRICT
JUDGE

App. 39

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 01-12824-EE

EVA CHARLENE SARDONELL,
DOUGLAS SARDONELL,

Plaintiffs-Appellants,
versus

GARY NORIEGA, individually and as Council
Member, City of Powder Springs,

WAYNE WRIGHT, individually and as City
Manager, City of Powder Springs,

RICHARD SAILORS, individually and as
Mayor, City of Powder Springs,

VINCE BLACKMON, individually and as
Code Compliance Officer,

CITY OF POWDER SPRINGS,

On Appeal from the United States District Court for the
Northern District of Georgia

(Filed Feb. 19, 2002)

ON PETITION(S) FOR REHEARING AND PETITION(S)
FOR REHEARING EN BANC
(Opinion , llth Cir., 19 a * foo %

Before: CARNES, HULL and GODBOLD, Circuit Judges.
PER CURIAM:

The Petition(s) for Rehearing are DENIED and no Judge
in regular active service on the Court having requested
that the Court be polled on rehearing en banc (Rule 35,

App. 40

Federal Rules of Appellate Procedure), the Petition(s) for
Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ [Illegible]
UNITED STATES CIRCUIT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1227%3A1. Public record. Not legal advice.