Rozar v. Mullis

United States Court of Appeals,

Eleventh Circuit.

No. 95-8227.

Catherine ROZAR, Wayne Beard, Anita Ashley, Vance Heard, Royel
Lee Hines, Essie B. Brantley, Joyce Cummings, Maceo Rozar, Homer L.
Berry, Sr., Tommy Lee Beard, Individually and as Representative of
Save Our Neighborhood Community Neighborhood Association,
Plaintiffs-Appellants,

v.

D.M. MULLIS, Individually and as Member of the Laurens County
Board of Commissioners, Roscoe Brower, Individually and Member of
the Laurens County Board of Commissioners, Emory Lake, Individually
and as Member of the Laurens County Board of Commissioners, Michael
Wolfe, Individually and as Member of the Laurens County Board of
Commissioners, Harold Reheis, Individually and as Director of the
Environmental Protection Division of the Georgia Department of
Natural Resources, Environmental Protection Division of the Georgia
Department of Natural Resources, Laurens County, Georgia,
Defendants-Appellees.

June 17, 1996.

Appeal from the United States District Court Southern District of
Georgia. (No. CV-394-51), Dudley H. Bowen, Jr., Judge.

Before TJOFLAT, Chief Judge, and RONEY and CAMPBELL*, Senior
Circuit Judges.

LEVIN H. CAMPBELL, Senior Circuit Judge:

Plaintiffs, as individuals and representatives of Save Our

Neighborhood Community Neighborhood Association, sued Laurens

County in Georgia, members of its Board of Commissioners ("County

Board"), the Georgia Environmental Protection Division ("EPD"), and

its director,1 alleging racial discrimination in the siting and

*
Honorable Levin H. Campbell, Senior U.S. Circuit Judge for
the First Circuit, sitting by designation.
1
Defendants include D.M. Mullis, Roscoe Brower, Emory Lake,
and Michael Wolfe, individually and as members of the Laurens
County Board of Commissioners, Laurens County ("county
defendants") and Harold Reheis, individually and as director of
the Environmental Protection Division of the Georgia Department
permitting of a solid waste landfill in their neighborhood.

Plaintiffs appeal from orders, entered by the United States

District Court for the Southern District of Georgia, denying an

injunction and granting summary judgment to the defendants on the

ground that the plaintiffs' federal claims were time-barred. We

affirm, although on grounds different in some respects from those

stated by the district court.

I.

This case arises from Laurens County's efforts to construct a

solid waste landfill to replace its existing one, which had almost

reached capacity and was becoming contaminated. In 1989 the County

Board hired an engineering firm, Tribble & Richardson, Inc., and a

local property expert, Curtis Beall, to investigate potential sites

suitable for a new landfill. Beall prepared a list of more than

twenty possible sites, some of which were readily rejected because

of insufficient useable acreage or the owner's unwillingness to

sell. The record contains evidence that additional sites were

added to the list as others were eliminated.

In January 1991 the County Board met to discuss a site at

Scotland Road, which the engineers had recommended. Citing

concerns such as the sufficiency of useable land there, the Board

voted to table any action until alternatives were studied.

Plaintiffs say that the site was not pursued because white

residents protested. The record suggests, however, that most of

the area residents were African-American; both an African-American

of Natural Resources, Environmental Protection Division ("EPD")
of the Georgia Department of Natural Resources ("state
defendants"), and John Doe.
and a white church were nearby.

The list of potential landfill sites was expanded to include

Old Macon Road, a mixed racial neighborhood located approximately

three miles from the existing solid waste landfill. The record

indicates that this site was brought to the County Board's

attention when the property owner offered to sell a sizable tract

(more than 400 acres). Preliminary testing was done on the Old

Macon Road property in February 1991, at which time a renewable

option to purchase the property was signed. In November 1991, at

a meeting attended by at least one plaintiff, the County Board

voted to hold a public hearing the next month to decide whether to

construct the landfill there and to apply to the state for a

permit. Notice of the date, time, and purposes of the meeting was

published in the local newspaper in the weeks before the meeting

and was posted at the proposed site and at the local courthouse,

where the meeting was to be held.

At least one named plaintiff attended the public meeting on

December 3, 1991 and protested the proposed siting of the landfill

near plaintiffs' homes. The County Board, which was comprised of

one African-American and four white members, voted for the Old

Macon Road site by three to two. The three who supported the site

were white.

The County Board promptly applied to the state for a permit to

construct the landfill at Old Macon Road, as required by the

Georgia Comprehensive Solid Waste Management Act, O.C.G.A. § 12-8-
20 et seq. ("CSWMA").2 In late December 1991, the Georgia EPD

notified the Board that, after a preliminary review of the

application, the Old Macon Road site seemed "quite complex from a

hydrogeological point of view." The letter stated that an expanded

subsurface investigation was needed, and that it "may demonstrate

that the site is not suitable."

Land studies continued, and the property ultimately was

determined to be acceptable for solid waste disposal. The EPD so

notified the County Board in a "site suitability" letter on August

31, 1992. The letter emphasized that before a permit could be

granted, all state requirements had to be met, including the

Board's submission and the State's approval of a solid waste

landfill design and operational plan. The County Board, having

received the site suitability letter, voted on September 15, 1992

to purchase the Old Macon Road property (for which an option to

purchase had been renewed since the initial agreement in February

1991). The purchase took place on September 28, 1992.

The following spring, the County Board initiated a "facility

2
The Act prohibits the construction or operation of a solid
waste disposal facility without a permit obtained from the
director of the EPD. A permit applicant must comply with many
statutory and regulatory requirements, such as showing need for
the facility, compliance with zoning or land use ordinances, data
on the geologic and hydrogeologic suitability of the site, and a
suitable design and operation plan. A county that is applying
for a permit also must follow detailed procedures, including but
not limited to notifying the public of the meeting at which a
siting decision is to be made; notifying the public after
receiving a site suitability determination from the state;
holding a public hearing to inform affected residents of the
opportunity to engage in a "facility issues negotiation process"
to discuss facility operation issues; and notifying the state if
the negotiating parties reach or do not reach consensus on
negotiated issues, in order to continue the permit application
process.
issues negotiation process" as required by state law. See O.C.G.A.

§ 12-8-32(f). Some plaintiffs participated, voicing concerns with

issues such as the hours and methods of the landfill's operation,

fencing around the property, and traffic flow. Race-related

concerns were not raised, apparently because some plaintiffs had

been advised by the facilitator that that was not an appropriate

forum in which to do so. Following completion of the negotiation

process, the Board proceeded with its permit application, and the

EPD issued a permit on September 3, 1993.

Plaintiffs appealed from the EPD's issuance of the permit to

the Georgia Board of Natural Resources. County Board

representatives intervened as respondents. Plaintiffs challenged

on numerous grounds whether respondents had complied with statutory

and regulatory requirements (e.g., public notice provisions,

protections against contamination of the wells). Allegations of

race discrimination were not raised. An administrative law judge

held an evidentiary hearing and issued an order in June 1994

affirming the issuance of the permit upon compliance with one

condition (involving acceptance of out-of-county waste). The

Laurens County Superior Court affirmed the ALJ's order on November

4, 1994.

Meanwhile, on August 15, 1994, plaintiffs filed this civil

complaint in the federal district court. Seeking damages and a

preliminary and permanent injunction, they asserted various claims,

including that the county and state defendants had committed acts

of racial discrimination under color of law and had conspired to

deprive them of federally secured rights. After a hearing, the
district court denied a preliminary injunction in December 1994.

The court subsequently allowed the county and state defendants'

motions for summary judgment on the solely asserted ground that

plaintiffs' federal claims were time-barred. This appeal followed.

II. Statute of Limitations

A. The District Court Opinion

In the complaint, defendants were charged with race

discrimination in violation of the Equal Protection Clause and 42

U.S.C. § 1983, 1985, and 2000d et seq. They were also charged with

a taking of plaintiffs' life, liberty or property without due

process of law, and a nuisance in violation of Georgia state law.

Provisions of the Georgia CSWMA were challenged as being

unconstitutional on their face and as applied.

In granting summary judgment to defendants on the ground that

plaintiffs' federal claims, filed on August 15, 1994, were

untimely, the district court grouped together all federal claims

against both the county and state defendants. It held that the

applicable limitations period was two years, under the state

statute of limitations for personal injury actions, O.C.G.A. § 9-3-

33. The court accepted defendants' argument that the two-year

period began to run when the County Board voted on December 3, 1991

to select Old Macon Road as the new landfill site. The district

court stated that at the time of that vote, several plaintiffs knew

or should have known of the injuries of which they later

complained. The district court rejected plaintiffs' argument that

the limitations period did not begin to run against the county

defendants until the Board made final its selection of a site by
exercising its option and purchasing the landfill property in

September 1992. The court also rejected, without explanation,

plaintiffs' argument that, since state authorities were not yet

involved by the time of the County Board's site selection vote on

December 3, 1991, plaintiffs' action against the state defendants

could not have accrued then, and must have accrued, at the

earliest, when the EPD, a state agency, issued a site suitability

letter on August 31, 1992 (if not later when the EPD issued a final

permit on September 3, 1993). Accrual by these dates would have

rendered the suit against the state defendants timely.3

We review the district court's grant of summary judgment de

novo to determine whether the record shows "that there is no

genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In

so doing, we construe the facts in the light most favorable to the

non-movant, plaintiffs. E.g., Jeffery v. Sarasota White Sox, Inc.,

64 F.3d 590, 594 (11th Cir.1995).

B. Applicable Limitations Period

The district court ruled, and the parties do not dispute, that

Georgia's personal injury limitations period of two years, O.C.G.A.
4
§ 9-3-33, applies to all the federal claims. We fully agree,

3
Having granted summary judgment on the federal claims, the
district court declined to exercise supplemental jurisdiction
over the state law nuisance claim.
4
In saying that the Georgia personal injury limitations
period applies to plaintiffs' federal claims, we exclude the
claims that the notice provisions of the Georgia CSWMA on their
face and as applied violate the Due Process Clause of the
Fourteenth Amendment. Plaintiffs included these claims in their
complaint, but have not addressed them on appeal. Accordingly,
we deem the matter to have been waived. E.g., Stepak v. Addison,
discussing the matter briefly only because this is the first time

this circuit has had occasion to address the limitations period

applicable to section 2000d (Title VI of the Civil Rights Act of

1964).5

As to the claims brought here under 42 U.S.C. §§ 19836 and

1985,7 precedent is clear that these are measured by the personal

injury limitations period of the state. Wilson v. Garcia, 471 U.S.

261, 269, 105 S.Ct. 1938, 1943, 85 L.Ed.2d 254 (1985) (section

1983); Mullinax v. McElhenney, 817 F.2d 711, 716 n. 2 (11th

20 F.3d 398, 412 (11th Cir.1994).
5
Section 2000d provides:

No person in the United States shall, on the ground of
race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be
subjected to discrimination under any program or
activity receiving Federal financial assistance.
6
Section 1983 provides:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory ... subjects, or causes to be subjected,
any citizen of the United States ... to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress.
7
Section 1985(3) provides in relevant part that injured
parties may have an action for damages if

two or more persons in any State or Territory conspire,
... for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and
immunities under the laws, or for the purpose of
preventing or hindering the constituted authorities of
any State or Territory from giving or securing to all
persons within such State or Territory from giving or
securing to all persons within such State or Territory
the equal protection of the laws; ....
Cir.1987) (section 1983); Williams v. City of Atlanta, 794 F.2d

624, 625 n. 1 (11th Cir.1986) (applying Wilson retroactively to

section 1983 claim and accepting appellants' concession that the

same limitations period applied to sections 1981, 1985, and 1988

claims); Drayden v. Needville Indep. Sch. Dist., 642 F.2d 129,

131-132 (5th Cir.1981) (section 1985).

As to the claim brought under section 2000d, while neither the

Supreme Court nor this circuit has decided whether a state's

personal injury limitations period applies, the other circuits that

have faced the question have so ruled, and we agree with their

reasoning. In Baker v. Board of Regents, 991 F.2d 628 (10th

Cir.1993), the Tenth Circuit reasoned that section 2000d is

"closely analogous" to sections 1983 and 1981: all are civil

rights statutes aimed at providing equal rights under the law and

preventing discrimination against a person and the resulting

"impairments to the rights and dignities of the individual." Id.

at 631. Characterizing section 2000d claims as personal injury

actions for limitations purposes "promotes a consistent and uniform

framework by which suitable statutes of limitations can be

determined for civil rights claims," and serves Congress'

objectives by avoiding uncertainty and "creat[ing] an effective

remedy for the enforcement of federal civil rights." Id. (internal

citations omitted). The Eighth Circuit followed Baker in Egerdahl

v. Hibbing Community College, 72 F.3d 615, 618 (8th Cir.1995)

(noting that "a plaintiff suing a federally-supported program for

racial discrimination may bring a claim under any one of these

three laws [sections 1983, 1981, or 2000d]"). See also Taylor v.
Regents of Univ. of Cal., 993 F.2d 710, 712 (9th Cir.1993)

(applying same state personal injury limitations period to sections

1983 and 2000d claims), cert. denied, --- U.S. ----, 114 S.Ct. 890,

127 L.Ed.2d 83 (1994).

Finding our sister circuits persuasive as to section 2000d,

we hold that Georgia's two-year personal injury limitations period

applies to the claim under that provision as well as those under

sections 1983 and 1985.

C. Accrual of the Actions

We turn next to whether plaintiffs' causes of action against

each group of defendants accrued before or after August 15, 1992,

this being the date two years before the present complaint was

filed on August 15, 1994. Federal law determines when a federal

civil rights claim accrues. Mullinax, 817 F.2d at 716. The

general federal rule is that " "the statute [of limitations] does

not begin to run until the facts which would support a cause of

action are apparent or should be apparent to a person with a

reasonably prudent regard for his rights.' " Id. (internal

citation omitted) (section 1983 claim); Drayden, 642 F.2d at 132

(section 1985 claim). Plaintiffs must know or have reason to know

that they were injured, and must be aware or should be aware of who

inflicted the injury. Mullinax, 817 F.2d at 716. This rule

requires a court first to identify the alleged injuries, and then

to determine when plaintiffs could have sued for them. See Kelly

v. City of Chicago, 4 F.3d 509, 511 (7th Cir.1993).

The district court concluded that all of plaintiffs' claims

accrued against both state and county defendants on December 3,
1991, when the County Board voted to select Old Macon Road as the

landfill site. While we agree as to the county defendants, we

disagree that claims against the state defendants accrued by then.

1. County Defendants

We begin by identifying the injuries allegedly caused by the

county defendants. Plaintiffs contend that the county defendants

deprived them of the Fourteenth Amendment guarantee of equal

protection of the laws by furthering a pattern and practice of

siting landfills in predominantly minority areas. In support,

plaintiffs assert that the county defendants (1) rejected the

Scotland Road site because of white residents' protests; (2) added

plaintiffs' neighborhood to an already-developed list of potential

landfill sites, despite the presence of certain unsuitable land

characteristics which had led other proposed sites to be rejected;

and (3) voted by an all-white majority to construct the landfill in

their neighborhood. These allegedly racially motivated acts are

said to have had a discriminatory impact by harming the African-

American residents' property values, health, and welfare. Under

the above theory, we readily agree with the district court that the

constitutional injury allegedly inflicted by county defendants upon

plaintiffs took place when the County Board—for what plaintiffs say

were racially discriminatory reasons—voted to select Old Macon Road

as the site for the new landfill.

This leaves as a remaining question when the plaintiffs knew

or should have been aware of the injury. It is uncontroverted that

following notice published in a local newspaper and posted at the

courthouse and at the proposed site, the County Board's vote
occurred on December 3, 1991 at a public meeting attended and

participated in by at least one named plaintiff. Plaintiffs did

not argue in the district court, nor do they argue on appeal, that

the remaining plaintiffs were justifiably unaware of what occurred
8
at the December 3, 1991, public meeting. The burden was on

plaintiffs, had any of them wished to maintain that they were

justifiably ignorant at the time of or immediately after the County

Board's allegedly discriminatory action, to make such a showing.

See Cathedral of Joy Baptist Church v. Village of Hazel Crest, 22

F.3d 713, 717 (7th Cir.) (African-American church asserting that

local board's zoning vote was racially discriminatory has the

burden of showing "that even with the exercise of reasonable

diligence it could not have known of the purported injury inflicted

by the Village" on the date of the vote), cert. denied, --- U.S. --

--, 115 S.Ct. 197, 130 L.Ed.2d 129 (1994). Besides the evidence of

public notice and the presence of one plaintiff at the meeting, the

record indicates that at least one of the named plaintiffs then

knew of county defendants' earlier tabling of the proposal to use

the Scotland Road site, an action plaintiffs say was done to favor

white residents. Cf. Calhoun v. Alabama Alcoholic Beverage Control

Bd., 705 F.2d 422, 425 (11th Cir.1983). On this record, we affirm

the district court's conclusion that plaintiffs' constitutional

equal protection claim accrued against the county defendants no

8
At the hearing on the preliminary injunction, plaintiffs
criticized the absence of individual notice to residents in
advance of the meeting. Their witnesses indicated, however,
having received notice of the site's consideration by word of
mouth; and no evidence complaining of a lack of plaintiffs'
actual awareness of the alleged injurious vote was introduced,
nor was such a contention pursued on appeal.
later than December 3, 1991, at which time the alleged injury was

inflicted by county action taken at a public hearing.

Plaintiffs argue below and on appeal that their equal

protection claim did not accrue until the county defendants

actually acquired an ownership interest in the landfill property

(i.e., on September 21 or 28, 1992, the dates when county

defendants exercised the option they held on the property and

actually purchased it). But the Commissioners' vote selecting the

site in question, taken at their December 3, 1991 meeting—a vote

that plaintiffs say was racially motivated—was the operative

decision amounting to the alleged constitutional injury. While a

state permit and final purchase still lay ahead, the county

defendants' unconstitutional act, if such it was, occurred when

they formally committed the County Board to the choice of this

site. See Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29,

70 L.Ed.2d 6 (1981) (employment discrimination claim accrued when

"the operative decision was made—and notice given—in advance of a

designated date on which employment terminated"; "the proper focus

is on the time of the discriminatory act, not the point at which

the consequences of the act become painful") (citing Delaware State

College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d

431 (1980)) (emphasis omitted); cf. Cathedral of Joy Baptist

Church, 22 F.3d at 718-719; Kelly, 4 F.3d at 512; Calhoun, 705

F.2d at 425.

Plaintiffs also charge the county defendants with violating

their due process rights. The precise nature of plaintiffs' due

process claim is unclear from the broadly worded complaint.
Plaintiffs assert that the county defendants' acts authorized a

devaluing and a taking of their property without due process,

endangering their health, welfare, and safety. At bottom,

plaintiffs seem to be charging arbitrary and capricious

governmental action.

Whatever its precise theory, and however it differed legally

from the equal protection claim, the due process claim relied on

the same factual scenario as the former. The county defendants

were alleged to have acted arbitrarily in selecting Old Macon Road

as the landfill site—their selection is said to have been

influenced by impermissible racial considerations, rather than by

the objective criteria (e.g. useable acreage, wetlands) that were

applied in rejecting other fairly comparable sites. The alleged

constitutional injury by the county flowed, therefore, from the

same allegedly arbitrary vote, taken on December 3, 1991, selecting

the Old Macon Road site. Accordingly, this claim against the

county defendants was also time-barred, as the district court

found.

Plaintiffs further allege that the county and state defendants

conspired to violate their statutory right to equal protection of

the laws under section 1985. Appellants' briefs, however, do not

suggest, and the record lacks any evidence to show, the date when

the alleged conspiracy began; further, at oral argument,

appellants' counsel conceded the absence of any conspiracy claim

against the state defendants. Accordingly, we hold that plaintiffs

have abandoned on appeal their claim that the county and state

defendants together conspired to deprive them of equal protection
of the laws. To the extent that plaintiffs are deemed to have

alleged a conspiracy among just the county defendants themselves,

such a conspiracy would have accrued on the date of the site

selection vote if not earlier, rendering the claim time-barred.

We therefore affirm the district court's holding that

plaintiffs' federal statutory and constitutional claims against the

county defendants are time-barred.

2. State Defendants

Plaintiffs' claims against the state defendants, in contrast

to those against the county defendants, were erroneously found to

be untimely—although, for reasons stated below, we affirm the

granting of summary judgment on a different ground. Nothing in the

record suggests that the state defendants took part in the County

Board's allegedly biased vote on December 3, 1991 to select Old

Macon Road for the new landfill. The state defendants only became

significantly involved later, during the permitting process. If,

therefore, the state defendants committed any equal protection and

substantive due process violations at all,9 those wrongs were most

likely inflicted, it would seem, either through some kind of

impliedly discriminatory site suitability determination by the EPD

9
Plaintiffs also allege racial discrimination by a state
agency receiving federal funds, in violation of section 2000d
(Title VI). Like the constitutional equal protection claim,
Title VI requires a showing of intentional discrimination absent
reliance (of which there was none here) on an agency regulation
proscribing acts with a discriminatory impact. See Elston v.
Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11th
Cir.1993) (citing Alexander v. Choate, 469 U.S. 287, 292-294, 105
S.Ct. 712, 715-716, 83 L.Ed.2d 661 (1985); Guardians Ass'n v.
Civil Serv. Comm'n of New York City, 463 U.S. 582, 584 n. 2, 103
S.Ct. 3221, 3223 n. 2, 77 L.Ed.2d 866 (1983)). For accrual
purposes, therefore, the Title VI and equal protection claims
against the state defendants should be treated similarly.
(August 31, 1992), or impliedly discriminatory decision to issue

the final permit (September 3, 1993). Even if plaintiffs learned

of their injury on the earlier date, the complaint was filed on

August 15, 1994, within the two-year limitations period. Summary

judgment based on the statute of limitations (the ground asserted

by the state defendants in their summary judgment motion) was not

warranted.

III. Lack of Any Supported Claim Against the State Defendants

While the statute of limitations did not bar the claims

against the state defendants, an appellate court may affirm a grant

of summary judgment on any alternative ground fairly supported by

the record. E.g., Railway Labor Executives' Ass'n v. Southern Ry.

Co., 860 F.2d 1038 n. 2 (11th Cir.1988) (citation omitted). Here,

we find as an alternative ground the complete absence of any

showing of discriminatory conduct by the state defendants, coupled

with the apparent abandonment of any such claims by concession

during oral argument before us. We recognize, of course, that an

appellate court's authority to affirm summary judgment on an

alternative ground is limited by the principle that the parties

must have

had a full and fair opportunity to develop facts relevant to
the decision.... Where summary judgment is granted on one
issue, an appellate court may not extend that judgment to
another issue under the guise of affirming the "result below"
when the effect is to preclude the losing party from
"disput(ing) facts material to that claim."

Heirs of Ude C. Fruge v. Blood Servs., 506 F.2d 841, 844 n. 2
(5th Cir.1975) (citing Fountain v. Filson, 336 U.S. 681, 683,
69 S.Ct. 754, 755-756, 93 L.Ed. 971 (1949)) (remanding on
question of negligence, where plaintiffs "were never called
upon to produce any Rule 56(c) materials" on the merits of
their claim).
 In the present case, two considerations lead us to conclude

that we properly may and should affirm the district court's order

granting summary judgment to the state defendants, on the

alternative ground that plaintiffs have clearly failed to

demonstrate the existence of any viable claim against the state

defendants. First, the evidentiary hearing on plaintiffs' request

for a preliminary injunction against all the defendants, which

forms a part of the record in this appeal, provided at least

partial opportunity and inducement for plaintiffs to present

whatever facts they could in support of their claims against the

state defendants. At that hearing, plaintiffs had an

opportunity—and to obtain an injunction were required—to show a

substantial likelihood of success on the merits of their claims

(including equal protection and due process) against the various

defendants. The evidence they adduced not only failed to show a

probability of success against the state defendants but, more to

the point here, was wholly insufficient as a matter of law to

support a finding that the state defendants had engaged in

intentional racial discrimination including the pattern or practice

of discrimination in the siting of landfills asserted as to the

county defendants. It was the county, not the state, defendants

who selected the site. The principal responsibility of the state

defendants lay in ascertaining the technical suitability of an

already chosen site. While plaintiffs and others opposed the

state's granting of a permit for the county's choice on various

technical grounds, they did not at that time charge the county with

discrimination, raising the question of how state authorities would
even know that discrimination was an issue. It remains unclear to

this moment on what factual basis plaintiffs now charge that the

state defendants' granting of the permit was racially motivated.

See Village of Arlington Heights v. Metropolitan Housing Devel.

Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 563-564, 50 L.Ed.2d 450

(1977) (evidence of both discriminatory intent and discriminatory

impact are required to show an equal protection violation, absent

an unusually stark pattern); Washington v. Davis, 426 U.S. 229,

242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976); see also Terry

Properties, Inc. v. Standard Oil Co., 799 F.2d 1523, 1535 (11th

Cir.1986) (no equal protection violation where the record did not

show discriminatory intent, but rather showed that legitimate

decisionmaking factors were used in the siting of an industrial

plant).

Having said this, we recognize that the hearing on the

preliminary injunction was not the full equivalent of an

opportunity to make submissions in response to a summary judgment

motion based on an allegation that plaintiffs lacked a valid claim

against the state defendants. If this were all, we would be

reluctant to find that the injunctive hearing, standing alone,

sufficed for present purposes. But there was more. At oral

argument, appellants' counsel conceded, in response to panel

inquiry, that, "As to the state defendants, I'm not aware of

anything [relative to violating the Fourteenth Amendment], in all

candor with the court at this point."10 Adding this concession to

10
We note in fairness to counsel, who was not the same
counsel as appeared in the district court, that the panel's query
was prefaced by a reference to whether, in light of Rule 11,
the failed opportunity to present evidence against the state

defendants at the preliminary injunction hearing, we can see no

unfairness in affirming the judgment in favor of the state

defendants without affording plaintiffs a further opportunity on

remand. We conclude that the summary judgment granted against the

state defendants should stand for the independent reasons just

stated.

IV. Preliminary Injunction

Plaintiffs also appeal from the district court's refusal to

issue a preliminary injunction enjoining defendants from carrying

out the construction of the landfill at Old Macon Road. Among

other factors, the granting of such an injunction would call for a

finding by the district court that plaintiffs have a substantial

likelihood of success on the merits. Since the claims against the

county defendants were, as the court later found and as we affirm,

time-barred, an injunction against them was properly denied.

Further, for the reasons stated above, plaintiffs have failed to

put forward any viable federal statutory or constitutional claims

against the state defendants. It was therefore not an abuse of

discretion to deny injunctive relief against the state defendants.

AFFIRMED.

Fed.R.Civ.P., the claim against state defendants would be pursued
on remand. Rule 11 provides for imposition of sanctions for the
pressing of unsupported claims.