Peacock v. City of Murphy Texas , 123 F. App'x 609 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT February 18, 2005
Charles R. Fulbruge III
Clerk
No. 04-40509
Summary Calendar
STANLEY J. PEACOCK; PATSY PEACOCK,
Plaintiffs-Appellants,
versus
THE CITY OF MURPHY TEXAS,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
(4:02-CV-373-DDB)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Real-estate developers Stanley and Patsy Peacock appeal, pro
se, the summary judgment granted the City of Murphy, Texas. In
1987, a Texas state court issued a writ of mandamus ordering the
City to issue various permits to the Peacocks. In 2002, the
Peacocks filed a development application seeking to correct their
development plat and have the necessary permits issued. The City
refused to issue the permits because the Peacocks’ development
plans did not comply with existing building and utility codes.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
The Peacocks filed this action under 42 U.S.C. § 1983,
claiming the City, inter alia, violated their equal-protection
rights by imposing requirements on them that were not required of
other developers near the proposed development. The City submitted
competent summary judgment evidence showing: the Peacocks’
development application was considered under the same standards as
every other applicant; and the denial of the Peacocks’ development
application was rationally based. The Peacocks did not provide any
countervailing evidence. The district court entered summary
judgment in favor of the City.
We review a summary judgment de novo. See Melton v. Teachers
Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559 (5th Cir. 1997).
Summary judgment is appropriate where the pleadings and evidence
present no genuine issue of material fact and the moving party is
entitled to a judgment as a matter of law. See FED. R. CIV.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A
factual dispute will preclude an award of summary judgment if a
reasonable jury could return a verdict for the nonmovant based on
the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Conclusional allegations, speculation, improbable
inferences, or a mere scintilla of evidence are insufficient to
defeat a summary judgment motion. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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The Peacocks offer only generalized and conclusional
assertions that the evidence submitted by the City was untrue.
This is insufficient to overcome the City’s summary judgment
evidence. See Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th
Cir.), cert. denied, 531 U.S. 926 (2000). Because the undisputed
facts, supported by competent summary-judgment evidence, showed the
Peacocks did not receive disparate treatment and the denial of
their development application was rationally based, the City was
entitled to summary judgment against their equal protection claims.
See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Nor have the Peacock’s shown they were denied due process.
Their development application was considered at public hearings and
they do not assert they were not notified of those hearings. See
Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Moreover, the
City’s refusal to issue the requested permits because the Peacocks
had not met building and utility code requirements is neither
arbitrary nor wrongful. See Zinermon v. Burch, 494 U.S. 113, 125
(1990).
The Peacocks also contend the district court erred in refusing
to compel responses to their discovery requests. They have not
shown an abuse of discretion, however; they have not explained how
the responses would have created a genuine issue of material fact.
See Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir.
3
2000); Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285-86 (5th
Cir. 1990).
AFFIRMED
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