Bryan v. City of Madison MS

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-60305
_____________________

STEVE BRYAN,

Plaintiff-Appellant,

versus

THE CITY OF MADISON, MISSISSIPPI;
MARY HAWKINS, Individually and in
her official capacity as Mayor of
Madison, Mississippi; TIMOTHY L.
JOHNSON, Individually and in his
official capacity as Alderman and
elected public official of the
City of Madison, Mississippi;
LISA CLINGAN-SMITH, Individually
and in her official capacity as
Alderman and elected public
official of the City of Madison,
Mississippi,

Defendants-Appellees.
_________________________________________________________________

Appeal from the United States District Court for the
Southern District of Mississippi
_________________________________________________________________

June 9, 2000

Before JOLLY and DeMOSS, Circuit Judges, and DAVID D. DOWD,*
District Judge.

E. GRADY JOLLY, Circuit Judge:

Steve Bryan, a developer, wanted to build some apartments in

Madison, Mississippi, so he contracted to buy some land that was

*
District Judge of the Northern District of Ohio, sitting by
designation.
zoned for apartments and began the process of submitting his plan

to the mayor and board of aldermen. It was approved. All he

needed then was a building permit. But after some 700 residents

raised serious objections, all he got was grief. In a protracted

approval process, he was frustrated time and time again,

principally by the mayor and her allies. Even a state circuit

court, which sided with Bryan, was unable to give him any

significant help. Finally, after some three years of various

delays, miscues, and political maneuvers, his battle ended when all

he had left was an expired contract to purchase. That is when he

came to the federal courts with this 42 U.S.C. § 1983 claim,

arguing that the City of Madison and its officials had violated his

due process rights under the United States Constitution. He argues

that the defendants deprived him of his property rights without due

process of law. Unfortunately, he had no property rights and

accordingly we must turn him away.

I

The saga of this plot of land began, routinely enough, in

1987, when the mayor and board of aldermen rezoned the property to

allow for construction of residential apartments.1 In 1990, the

city adopted a new, comprehensive plan for development of the

1
There is some dispute about whether this rezoning was
conditional on a grant by the owner to the city of a forty-foot
buffer along the property’s eastern boundary, but resolving this
question is not critical to the outcome of the case.

2
entire municipality. Under this plan, the property maintained its

classification allowing for development of an apartment complex.

At this point, Bryan unceremoniously entered the story. He

signed a contract with the owner of the plot to buy the land, with

the purchase to close between March 22, 1993 and September 30,

1994. In early 1991, he submitted a plan for the development of

apartments on the property to the mayor and board. The plan would

provide 564 units, approximately ten units per acre. The city

approved the plan in March 1991 and the architectural design for

the project two months later. All that remained was to obtain a

building permit. And in October 1991, Madison’s Public Works

Director, Denson Robinson, wrote Bryan to say that the planned

development complied with all city ordinances and that Madison was

prepared to issue the permit.

By December 1991, however, Bryan still had not applied for a

building permit. Perhaps he should have acted more quickly. On

December 17, the city adopted a comprehensive rezoning ordinance,

to be effective on January 16, 1992, as part of the implementation

of the 1990 comprehensive plan. This rezoning was significant for

three reasons. First, it repealed all earlier and inconsistent

ordinances. Second, while the property maintained its

classification allowing for residential apartment development, the

new zoning ordinance reduced the density restriction from ten to

3
7.5 units per acre. Third, the new ordinance adopted a formal site

plan review procedure.

At this point, Bryan finally applied for a building permit.

But according to a Madison ordinance, the builder must seek the

permit within six months of approval of the site plan. Bryan had

missed this deadline, so he was forced to resubmit his site plan

for approval. In early July 1993, therefore, Bryan amended his

site plan to accord with the new density provision and resubmitted

it. The board of aldermen voted to approve the new plan in

September 1993.

While Bryan was involved in that process residents became

unhappy with what would have been Madison’s first apartment

complex, and organized a petition drive opposing the development.

They collected over 700 signatures. This expression of voters,

naturally enough, provoked a response from Mayor Mary Hawkins: she

vetoed the board’s September approval of Bryan’s site plan. Bryan

appealed this decision to the Circuit Court of Mississippi.2 In

the meantime, the mayor and two aldermen, Timothy Johnson and Lisa

Clingan-Smith, submitted a rezoning application to the city zoning

commission that would have prohibited development of apartments.

2
He pursued his appeal pursuant to Miss.Code.Ann. § 11-51-75,
which provides for appeal from decisions of boards of supervisors
and municipal authorities upon presentment of a bill of exceptions
setting forth the basis for appeal. In this case, the circuit
court ultimately found that Bryan’s plan was inadequate.

4
The commission rejected their application, however. A group of

residents calling themselves the “Madison Homeowners Association”

then appealed the commission’s decision to the mayor and board of

aldermen, who had authority to hear this type of appeal. After a

public hearing, however, the board voted 3-2 to deny the mayor’s

rezoning application.

Two days later, in early November 1993, the mayor called four

of the board members for an unscheduled meeting. The mayor told

them she was declaring the first vote invalid and called for

another immediate vote, even though one of the board members was

absent and none of the interested parties had notice of the

meeting. Two members of the board objected and left the room.

Undeterred, the mayor proceeded to count the two who had left as

abstaining votes, thereby constituting affirmative votes. She then

announced that the rezoning had passed, 4-0.

The landowner, not Bryan, appealed this decision to the

circuit court. In its March 16, 1994 order, the court ruled that

the rezoning had been improper and warned the mayor against using

the site approval procedures to block a landowner from lawfully

using his property in response to public clamor. But the judge

dismissed the appeal on the assumption that the parties would be

able to work out their differences. By this time, however, the

dispute was beginning to develop solid traction that would not slip

into compromise.

5
 Two days later, on March 18, 1994, Bryan submitted a new site

plan, which he later modified on April 7.3 On April 25, the

planning and zoning commission voted to approve Bryan’s plan

subject to certain conditions. The mayor and board took up the

matter of the site plan on May 3, but left the issue unresolved

until the next regular meeting, May 17. At that May 17 meeting,

the board again voted 3-2 to approve the plan, and directed city

personnel to issue a building permit. But the mayor again vetoed

the board decision.

This pattern became script. Bryan would appeal the mayor’s

veto before the circuit court, which would reverse the veto. In

doing so, the circuit judge would issue findings in Bryan’s favor
4
before remanding back to the board of alderman. After another

favorable vote for Bryan in that forum, the mayor would announce

another veto based on some new problem with Bryan’s plan. Bryan

would then appeal.

This pattern was temporarily interrupted at a hearing on

June 13, 1995. At that hearing, before the aldermen even had a

chance to vote, the mayor withdrew the plan from consideration,

3
During review of this plan, Madison’s city engineer,
Engineering Associates, Inc., advised the city of a potential
conflict of interest. The board of aldermen then voted unanimously
to hire another firm, Southern Consultants, Inc., to review the
plan.
4
The district court held that these findings did not have
preclusive effect, an issue that Bryan has not raised on appeal.

6
ostensibly to review the transcript of another board meeting held

the night before during which a portion of Bryan’s plan had been

approved. But the mayor never made any attempt to obtain such a

transcript.

By this point, Bryan’s window for purchasing the property had

closed, but it is not clear whether the circuit judge was aware of

this development. Regardless, the judge eventually tired of the

mayor’s strategies. He determined that Bryan’s plan complied with

all city ordinances and directed the city to issue a building

permit. The judge also imposed sanctions of $19,688.45 on the city

for its repeated attempts to block Bryan’s attempts to obtain a

building permit.

At this point, nothing appeared to stand in Bryan’s way. But

on April 21, 1995, the property’s owner wrote Bryan informing him

that the contract period for purchasing the property had ended.

The owner ordered Bryan to remove his equipment from the property

and not to return. The owner later sold the property to a third

party in 1996.

After this final reversal, Bryan filed a § 1983 suit in

federal district court, alleging violation of his Fifth and

Fourteenth Amendment rights. The suit named the city of Madison,

the mayor, and the two aldermen (Johnson and Clingan-Smith) as

defendants. Bryan and the defendants later filed summary judgment

7
motions, and the district court ruled in favor of the defendants,

dismissing the suit.

II

Because the district court ruled for the defendants on summary

judgment, we review the judgment de novo, applying the same

standard as the district court. Duffy v. Leading Edge Prods. Inc.,

44 F.3d 308, 312 (5th Cir. 1995); Fed.R.Civ.P. 56. We therefore

draw all factual inferences in Bryan’s favor in order to determine

whether the defendants are entitled to judgment as a matter of law.

Degan v. Ford Motor Co., 869 F.2d 889, 892 (5th Cir. 1989).

III

We first address whether the three individual defendants enjoy

immunity from this suit.5 The district court, in a thorough and

considered opinion, concluded that they were entitled to absolute

legislative immunity. We must disagree.

A

Absolute immunity applies to activities, not offices. See

Marrero v. City of Hialeah, 625 F.2d 499, 508 (5th Cir. 1980)(“[I]t

is the official function that determines the degree of immunity

required, not the status of the acting officer.”). Legislative

immunity protects officials fulfilling legislative functions even

5
The City of Madison itself does not enjoy immunity from suit,
either absolute or qualified, under § 1983. Burge v. Parish of St.
Tammany, 187 F.3d 452, 476 (5th Cir. 1999).

8
if they are not “legislators.” Hughes v. Tarrant County Texas, 948

F.2d 918, 920 (5th Cir. 1991). And absolute immunity only protects

those duties that are functionally legislative, not all activities

engaged in by a legislator. Id.

The first step in our analysis, therefore, is to determine

exactly what activities Bryan has challenged. Bryan’s brief and

his complaint discuss four types of such activities:6

(1) The mayor’s repeated vetoes of Bryan’s site and
development plans.

(2) Delaying tactics by the mayor by blocking a decision on
Bryan’s various plans at board meetings.7

(3) The vote by the mayor and two aldermen to apply to
themselves to rezone the property.8

(4) The events at the November 3, 1993 board meeting, where
the mayor placed the rezoning decision back on the agenda
without notifying the parties, and where she and the two

6
We note that Bryan’s brief often fails to enumerate what
specific acts form the basis for his specific claims.
7
In his complaint, Bryan charges that the mayor prevented the
processing of a site plan he submitted to the board on March 18,
1994, though Bryan does not explain how the mayor accomplished
this. In his complaint, he points to further delay when the board
failed to reach a decision on his site plan at a meeting on May 3,
1994. Again, there is no mention of how this was accomplished, or
even who was to blame for the delay. Finally, Bryan points to a
decision by the mayor to remove consideration of Bryan’s plan from
the agenda at a June 13, 1995 board meeting, purportedly to obtain
a transcript of an earlier proceeding.
8
On September 13, 1993, the Madison zoning commission voted to
deny the mayor’s rezoning application. The Madison Homeowner’s
Association appealed to the board of alderman, which then voted on
November 1, 1993, to deny the rezoning application.

9
 aldermen voted to rezone the property notwithstanding the
board’s earlier vote against rezoning.9

B

In Hughes v. Tarrant County Texas, 948 F.2d 918 (5th Cir.

1991), we discussed various legal standards for evaluating whether

a particular activity is “legislative” rather than “administrative”

and therefore protected by absolute immunity.10 We first looked to

Cinevision Corp. v. City of Burbank, 745 F.2d 560, 580 (9th Cir.

1984), which held that “[a]dministration of a contract does not

involve the formulation of a policy. . . . Rather, it is more the

type of ad hoc decisionmaking engaged in by an executive.” We also

considered a zoning case, Scott v. Greenville County, 716 F.2d

1409, 1423 (4th Cir. 1983), where the Fourth Circuit held that

“[w]hen local zoning officials do more than adopt prospective,

legislative-type rules and take the next step into the area of

enforcement, they can claim only the executive qualified immunity

appropriate to that activity.” We next turned to Cutting v.

Muzzey, 724 F.2d 259, 261 (1st Cir. 1984), where the First Circuit

denied legislative immunity protection to a zoning board that had

placed conditions on the approval of a development: “It is not the

9
The state court overturned the rezoning on Feb 10, 1994.
10
Hughes was not a zoning or permit case. The question before
the court was whether county commissioners were entitled to
absolute legislative immunity for refusing to compensate a district
court clerk for his attorney’s fees incurred in the course of his
§ 1983 suit against them.

10
enactment of an overall plan or the establishment of general

policy, both of which could be said to be legislative in

nature. . . . In our case the Planning Board merely decided to

insist on completion of a particular road before granting approval

of a specified proposed subdivision.” We explained that the

Cutting court had adopted two different tests in reaching its

conclusion:

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

Id. (citing Developments In the Law, 91 Harv.L.Rev. 1427, 1510-11

(1978). In Hughes, we did not choose any one of these particular

standards, but instead used them as general guidelines.

C

Applying the same guidelines to the present case indicates

that legislative immunity protects only one of the defendants’

listed activities. The first challenged activity, the mayor’s

repeated vetoes, was non-legislative. In each instance, the mayor

was vetoing a determination that Bryan’s plan satisfied city zoning

11
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

Cutting tests, the determination was based on specific, particular

facts and affected Bryan’s development alone.

Thus, our conclusion is not inconsistent with our earlier

decision in Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir.

1981), where we held that a mayor’s veto of a rezoning ordinance

was protected by legislative immunity. Zoning is general and

prospective. It directly affects the entire community. In the

present case, however, general rules are being applied to one

specific piece of property.11 Calhoun v. St. Bernard Parish, 937

F.2d 172 (5th Cir. 1991) presents a closer case because it

concerned spot zoning rather than a general zoning ordinance. But

spot zoning, even if it relates to a specific plot, is still a

11
In some circumstances, the application of general rules to
a specific case may be quasi-judicial in nature, and therefore
entitled to absolute immunity for that reason. The standard for
judicial immunity is different, and is discussed in detail in
Thomas v. City of Dallas, 175 F.3d 358, 362-63. We are not aware
that the defendants have raised this argument to this point, but
the district court did not address it, and the defendants have not
alluded to it in their brief. For these reasons, the issue is not
properly before us.

12
prospective amendment of a larger general plan. For that reason,

it is legislative, while the vetoes in the case before us are not.12

Similarly, the second activity, where the mayor delayed

decisions on approval of Bryan’s plans at various board meetings,

is non-legislative. The point at issue in those meetings was

specifically and particularly related to the proposed development.

Any decision to delay a vote on that issue, therefore, was also

specific and particular.

The third challenged activity, the vote to apply for a

rezoning, also appears non-legislative. This was not a vote to

rezone. It was a vote to apply for a rezoning, just as private

citizens are able to do. This type of activity is more like ad hoc

decisionmaking than the formulation of a policy.

Based on these standards, however, we must grant legislative

immunity for the events related to the November 3, 1993 board

meeting, which is the fourth set of activities. These activities

were irregular and inappropriate. But they were still legislative

in nature because they involved a rezoning provision. It may be

that at some point, when a legislature acts in a wholly

irresponsible and undemocratic manner, its immunity for

12
Our conclusion is consistent with that of the Eleventh
Circuit, which has twice held that the denial of a permit
constitutes an administrative rather than a legislative act. See
Corn v. City of Lauderdale Lakes, 997 F.2d 1369, 1392 (11th Cir.
1993); Crymes v. Dekalb County, Georgia, 923 F.2d 1482, 1485-86
(11th Cir. 1991).

13
“legislative” acts dissipates because it is no longer operating as

a legislature, as we understand the term. But we are reluctant to

conclude that this point has been reached here.13

D

We recognize that the mayor and aldermen may be entitled to

qualified immunity for the activities that are not protected by

legislative immunity. But the district court did not need to

address this issue, having concluded that legislative immunity

applied, and it has not been fully briefed by the parties. For

that reason, we decline to address it at this point.

IV

We turn now to the substance of Bryan’s specific

claims--substantive and procedural due process violations, taking

without just compensation, and equal protection violation.

13
Immunity concerning the November 3 meeting is probably
insignificant. The state court overturned the rezoning just over
three months later, so any impact on Bryan’s efforts was minor.

14
 A

In order to establish either a substantive or a procedural due

process violation by claiming denial of a property right, Bryan

must first establish a denial of a constitutionally protected

property right.14 See Spuler v. Pickar, 958 F.2d 103, 107 (5th Cir.

1992) (stating that a prerequisite to a substantive due process

claim is the establishment of a constitutionally protected property

right); Jackson Court Condominiums, Inc. v. City of New Orleans,

874 F.2d 1070, 1074 (5th Cir. 1989)(requiring a showing of a

property right as a basis for a procedural due process violation).

Such a showing, as we noted in Schaper v. City of Huntsville, 813

F.2d 709 (5th Cir. 1987), must be made by reference to state law.

“The Constitution does not create property interests; ‘they are

created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state

law.’” Schaper, 813 F.2d at 713 (quoting Board of Regents v. Roth,

408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)); see also

Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 48 L.Ed.2d 684

(1976) (stating that “a property interest in employment can, of

course, be created by ordinance or by an implied contract . . . in

14
This requirement of a property right is not necessary if the
plaintiff charges denial of a liberty interest. But Bryan has not
made that claim here.

15
either case, however, the sufficiency of the claim of entitlement

must be decided by reference to state law”).

The right that Bryan claims he was denied is his right to

develop apartments on the land. He contends that when he signed

the contract to purchase the land and put money down, that gave him

an interest in the land. Bryan maintains that this interest

entailed a right to use, which encompassed a right to develop

apartments. That is what, according to him, the defendants

interfered with.

The one and only Mississippi case that he relies on as support

for the existence of such a right is Cole v. Haynes, 62 So.2d 779

(Miss. 1953). A careful analysis of that holding is therefore

warranted.

In Cole, the issues were whether a contract between two

parties was an option contract or a contract of sale, and if the

latter, whether the buyer had an equitable lien on the property for

the return of his down payment upon the seller’s failure to make

good title. Id. at 779. The parties had signed a contract, and

the buyer paid $3,250 down. But the seller was not able to clear

title to the property by the closing date. When the seller refused

to return the down payment, the buyer sued. He claimed an

equitable lien on the property in the amount of his down payment.

The only part of the holding that is relevant to our inquiry

16
is the nature of the interest the buyer secured.15 We believe the

description of that interest, however, forecloses any possible

recovery under a due process theory:

55 Am.Jur., Vendor and Purchaser, § 548, states that the
general rule is that a purchaser under an executory
contract for sale and purchase of land is entitled to an
equitable lien upon the land for the amount which he has
paid upon the purchase price, where the vendor is in
default or unable to make good title. Section 549 says
this with reference to the nature and basis of the lien:
‘The lien of a purchaser of land under an executory
contract for the amount which he has paid is to secure to
him the repayment of expenditures made in pursuance of
the contract. The exact nature of this lien is not
clear. . . . It has been said that the basis of the lien
is the well-known fundamental rule that in equity what is
agreed to be done is regarded as done, so that from the
time that a contract is made for the purchase of real
estate, the vendor is, in a sense, a trustee for the
purchaser, and the purchaser in a sense is the real owner
of the land, so that each, under the ordinary equitable
rules, has a lien for his protection. The whole practice
in equity with reference to such contracts is clearly on
the basis that the parties are under equitable
obligations to each other.’

Id. at 781 (emphasis added)(quoting 55 Am.Jur., Vendor and

Purchaser, § 548).

The nature of the interest the buyer secures under Cole is

extremely limited. It is an interest in the land. But what rights

does that interest entail? Merely a right to get the down payment

back if the seller does not make good title. This interest does

15
Bryan has asserted, and the defendants do not appear to
contest, that the contract in this case was one of sale rather than
an option contract.

17
not give one the right to enter the land, to exclude others from

the land, or to build anything on the land.

Thus, it is apparent that Bryan never had the right that he

claims the defendants denied him. The interest in the land that

arose when he signed the contract to purchase did not give him the

right to develop the land. So the defendants did not deny him his

right to develop apartments because he never had such a right in

the first place.

Because Bryan has failed to establish the denial of a property

right, his due process claims fail.16

B

Bryan next contends that the defendants’s conduct violated 42

U.S.C. §§ 1985(3) and 1986. These two sections are directed at

conspiracies to interfere with civil rights. The district court

16
Bryan also contends that the city’s demand that he cede a
forty-foot buffer of the property in exchange for approval of his
plan constituted a taking of property without just compensation.
The district court, however, correctly held that this claim was not
ripe because Bryan had failed to seek compensation from the state.
In Williamson County Regional Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 194, 105 S.Ct. 3108, 3120-21, 87
L.Ed.2d 126 (1985), the Supreme Court held that “if a State
provides an adequate procedure for seeking just compensation, the
property owner cannot claim a violation of the Just Compensation
Clause until it has used the procedure and been denied just
compensation.” Mississippi has a procedure for obtaining
compensation based on eminent domain takings, and Bryan failed to
resort to it. See Miss. Code Ann. §§ 11-27-1 et seq. (providing
for a “court of eminent domain”).

18
dismissed these claims because Bryan had failed to allege

membership in a class recognizable under § 1985(3).

On appeal, Bryan asserts that he is a member of an

identifiable class--multi-family developers. But in United

Brotherhood of Carpenters and Joiners of America, Local 610,

AFL-CIO v. Scott, 463 U.S. 825, 837-39, 103 S.Ct. 3352, 3360-61, 77

L.Ed.2d 1049 (1983), the Supreme Court held that § 1985(3) does not

reach conspiracies motivated by economic or commercial animus. In

this circuit, we require an allegation of a race-based conspiracy.

Newberry v. East Texas State University, 161 F.3d 276, 281 n.2 (5th

Cir. 1998). For that reason, Bryan’s § 1985(3) claim fails. And

because a valid § 1985 claim is a prerequisite to a § 1986 claim,

that claim is also invalid. See id. at 281 n.3.

C

Finally, Bryan argues that the defendants violated his right

to equal protection under the Fourteenth Amendment. Unfortunately,

neither his complaint nor his brief lists the specific instances

that he considers examples of violations of his equal protection

rights. To the best we can discern, there are two types of

violations that might be implicated here. First, Bryan appears to

allege that the defendants applied the zoning standards, such as

the height and water meter restrictions, unreasonably in his case

by vetoing his applications based on a failure to comply with those

standards. Second, Bryan charges that the “extraordinary” process

19
he faced, which included the unscheduled November 1993 meeting and

the hiring of Southern Consultants to review his plan, violated his

equal protection rights.

The first activity falls within the standard equal protection

analysis. As a prerequisite to such a claim, the plaintiff must

prove that similarly situated individuals were treated differently.

Wheeler v. Miller, 168 F.3d 241, 252 (5th Cir. 1999). But Bryan

has failed even to allege this. He does not provide an example of

any developer who had these standards applied to him or her in a

manner different from the way they were applied to him. Thus, the

equal protection claim with respect to those actions fails.

The second type of conduct on the part of defendants does not

fit into this “as applied” analytical framework as easily, but

instead looks like an example of “selective enforcement.” In

Esmail v. Macrane, 53 F.3d 176, 178-79 (7th Cir. 1995), the Seventh

Circuit considered a case in which city officials had used their

powers to delay and frustrate an applicant’s efforts to obtain a

liquor license. That court treated the case as one of “selective

prosecution,” which is a type of equal protection claim recognized

in this circuit as well. See Allred’s Produce v. United States

Department of Agriculture, 178 F.3d 743, 748 (5th Cir.

1999)(including all but personal vindictiveness); Stern v. Tarrant

County Hospital District, 778 F.2d 1052, 1058 (5th Cir.

1985)(including all but personal vindictiveness). In the present

20
case, when the mayor independently sought to rezone the property

and called the November 1993 unscheduled meeting, she was not

applying standards in an unreasonable manner. Instead, she was

selectively using her powers against a single party,17 Bryan. This

therefore looks like an case of selective enforcement.

But to successfully bring a selective prosecution or

enforcement claim, a plaintiff must prove that the government

official’s acts were motivated by improper considerations, such as

race, religion, or the desire to prevent the exercise of a

constitutional right.18 Allred’s Produce, 178 F.3d at 748. Stern,

778 F.2d at 1058. Bryan’s selective enforcement claim fails for

that reason. He has never alleged any improper motive by the mayor

or aldermen. Neither his complaint nor his brief explains why the

17
In Willowbrook v. Olech, 120 S.Ct. 1073, 1074 (2000), the
Supreme Court explained that “[o]ur cases have recognized
successful equal protection claims brought by a “class of one.” As
we read this part of the holding, it merely stands for the
proposition that single plaintiffs may bring equal protection
claims. They need not proceed on behalf of an entire group. But
this statement has nothing to do with whether they must assert
membership in a larger protected class. The decision does not,
therefore, alter our requirement of an improper motive, such as
racial animus, for selective enforcement claims.
18
For example, retaliation for an attempt to exercise one’s
religion or right to free speech would be expected to qualify.
Esmail, 53 F.3d at 179. The Seventh Circuit has also included
personal vindictiveness as an improper basis for selective
enforcement in the equal protection context. Id. at 180. We have
never specifically addressed whether such a motive would be enough
to support an equal protection claim without some other class-based
discrimination, but that issue is not before us here because Bryan
has failed to allege it.

21
mayor and aldermen’s motive to block his plan were improper. He

does not allege that they did so because of his race, his religion,

his attempts to assert his constitutional rights, or just personal

vindictiveness. The most we can garner is that the mayor and

aldermen acted in response to the public petition against the

development. If the public opposition were based on improper

motives, such as race, then it might be that responding as the

mayor and aldermen did to block the development would have

implicated constitutional rights. But Bryan has failed to allege

any such motive. And, in a democratic republic, responding to the

voice of the public is expected and is not, standing alone, a

malevolent motive for selective enforcement purposes. For that

reason, the district court’s dismissal of this claim was

appropriate.

V

For the reasons stated herein, the district court’s decision

is

A F F I R M E D.

22