                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0673n.06
                            Filed: August 8, 2005

                                           No. 04-5258

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


LANEY BRENTWOOD HOMES, LLC,                              )
                                                         )       ON APPEAL FROM THE
       Plaintiff-Appellant,                              )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE WESTERN
v.                                                       )       DISTRICT OF TENNESSEE
                                                         )
TOWN OF COLLIERVILLE, a Tennessee                        )                          OPINION
Municipal Corporation; FRED D. ROGERS, JR.,              )
                                                         )
       Defendants-Appellees.                             )
                                                         )


BEFORE:        KEITH, BATCHELDER, and COLE, Circuit Judges.

       R. GUY COLE, JR., Circuit Judge. Laney Brentwood Homes, LLC, filed an action

pursuant to 42 U.S.C. § 1983 against the town of Collierville, Tennessee, and Fred Rogers, Jr.,

Collierville’s Director of Development Services, alleging that the defendants acted improperly with

respect to the plaintiff’s applications for certain building permits and conducted harassing

inspections of its construction sites. The district court granted summary judgment in favor of the

defendants. For the following reasons, we AFFIRM the judgment of the district court.

                                      I. BACKGROUND

       On February 21, 2000, the application of Laney Brentwood Homes, LLC (“LBH”), for

issuance of a permit to build a residence on real property designated as Lot 96 in Collierville,

Tennessee, was denied by Collierville building officials. LBH appealed this denial to the Board of

Zoning Appeals (“Board”), arguing that Collierville inappropriately denied the application because
No. 04-5258
Laney Brentwood Homes v. Collierville, et al.

LBH refused to make repairs to “public maintenance property” owned by Raintree Development

Company, LLC, a company that LBH says Collierville wrongly believe was affiliated with it. The

Board affirmed Collierville’s denial of the application.

       On June 2, 2000, LBH challenged the Board’s decision by filing a petition for a writ of

certiorari with the Chancery Court of Shelby County, Tennessee. Under Tennessee law, a writ of

certiorari is a special petition to obtain review of an administrative board’s decision. Goodwin v.

Metro. Bd. of Health, 656 S.W.2d 383, 386-387 (Tenn. Ct. App. 1991). LBH also joined original

counts to this petition. These counts sought relief against Collierville and Rogers, including a

declaratory judgment, damages for malicious harassment, and damages for state takings violations.

LBH voluntarily dismissed these original counts on August 24, 2000. On October 18, 2000, the

Chancery Court upheld the Board’s decision. LBH appealed the Board’s decision, and that appeal

remains pending.

       On August 24, 2001, LBH filed a new complaint in the Chancery Court against Collierville

and Rogers, asserting several of the claims it had initially included in the petition for a writ of

certiorari, including state law claims of malicious harassment and unlawful takings, as well as a

section 1983 claim for unspecified constitutional violations. The defendants removed the case to

federal court.

       On March 15, 2002, the district court granted LBH leave to file an amended complaint. LBH

added state claims of extortion and spoliation, and specified that the section 1983 claims were based

on violations of LBH’s equal protection and substantive due process rights, as well as its right to

associate freely with Raintree. LBH further alleged that Collierville treated it differently from other

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developers by conducting more frequent and intimidating inspections on LBH’s construction sites.

LBH also added new factual allegations regarding the denial of applications for building permits on

October 13, 1999 for five other lots, and a temporary “stop work” order issued on October 23, 2000

for site violations on a sixth lot.

        The defendants moved for summary judgment. On February 28, 2003, the district court

granted summary judgment to the defendants on the section 1983 claim, holding that the claim was

time-barred and, alternatively, that LBH failed to establish an equal protection or substantive due

process violation. The district court declined supplemental jurisdiction over the remaining state law

claims, and remanded those claims to the Chancery Court.

                                           II. ANALYSIS

A. Standard of Review

        We review the district court’s grant of summary judgment de novo. Thomas v. City of

Chattanooga, 398 F.3d 426, 428 (2005). Summary judgment is proper where the movant shows

through “the pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits . . . 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.” FED. R. CIV. P. 56(c).

        This Court “reviews de novo the district court’s determination that a complaint was filed

outside the relevant statute of limitations.” Miller v. Am. Heavy Lift Shipping, 231 F.3d 242, 246-47

(6th Cir. 2000). Along the same lines, “we review de novo the district court’s decision to deny

relation back of an amended complaint to the original complaint.” Id. at 247.



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B. Statute of Limitations

       A section 1983 action alleging a violation of civil rights or personal injuries is governed by

the applicable state’s statute of limitations. Wilson v. Garcia, 471 U.S. 261, 267-68 (1985).

Tennessee, whose law applies, requires the filing of such actions within one year after the cause of

action has accrued. TENN. CODE ANN. §§ 28-3-104(a)(1) and (a)(3). Because its cause of action

accrued on February 21, 2000, the date the Board denied its application for building permits on Lot

96, the last day LBH could file a timely complaint was February 21, 2001. Similarly, in order for

LBH’s claims arising from the October 13, 1999 denial of application for building permits and the

October 23, 2000 “stop work” order, complaints would have to have been filed by October 13, 2000,

and October 23, 2001, respectively, in order to be timely.

1. The Petition for Writ of Certiorari and Tennessee’s Savings Statute

       LBH contends that it is entitled to the one-year grace period set forth in Tennessee’s Savings

Statute. The Savings Statute provides that if an “action is commenced within the time limited by

a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any

ground not concluding the plaintiff’s right of action . . . the plaintiff . . . [may] commence a new

action within one (1) year after the reversal or arrest.” TENN. CODE ANN. § 28-1-105. LBH claims

that it “commenced” an action against Collierville and Rogers when it joined the original counts to

its writ of certiorari petition on June 2, 2000. Although it later dismissed these original counts on

August 24, 2000, LBH argues that it had one year under the Savings Statute to refile its claim, and

did so on August 24, 2001.



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        The district court concluded that the filing of the original counts on June 2, 2000, was

irrelevant because those counts were improperly joined with the certiorari petition. The district

court noted that the Chancery Court does not have the authority to hear original claims that are

joined to writs of certiorari. Goodwin, 656 S.W.2d at 386-387. Therefore, the district court began

its statute of limitations analysis by examining, as the first relevant filing, LBH’s August 24, 2001

complaint. As this complaint was filed one year and six months after the alleged improper permit

denial on February 21, 2000 (the “February 2000 Denial”), the district court found LBH’s section

1983 claim barred by the one-year statute of limitations.

        Our statute of limitations analysis turns on whether the original counts joined to LBH’s June

2000 certiorari petition “commenced” a suit on that date for purposed of the Savings Statute. The

district court held that the Savings Statute was inapplicable because LBH never properly filed its

original counts in the first instance under Goodwin. See 656 S.W.2d at 386-387. however, the

district court’s reasoning conflicts with Tennessee law. The Tennessee courts have maintained that

the Savings Statute is to be construed liberally, and that “the true test of the statute’s applicability”

is whether the party affected had notice of the action. See, e.g., Henley v. Cobb, 916 S.W.2d 915,

917 (Tenn. 1996) (holding that even where the plaintiff files the original action in a court without

venue, the Savings Statute applies if the defendants were on notice of the action). Keeping in mind

Tennessee’s strong preference that disputes be resolved on their merits, see id. at 916, LBH’s

improper filing of its original counts with its writ of certiorari should not automatically preclude it

from applicability of the Savings Statute. For one, the defendants were on notice of the original



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filing, as was contemplated by the Savings Statute. Therefore, the filing of the original counts on

June 2, 2000 did “commence” an action for purposed of the Savings Statute.

        The Savings Statute expands the time a plaintiff has to refile a claim when the “original

complaint and the new complaint allege substantially the same cause of action, which includes

identity of the parties.” Foster v. St. Joseph Hosp., 158 S.W.3d 418, 422 (Tenn Ct. App. 2004). “It

is not necessary that the two complaints be identical, only that the allegations arise out of the same

transaction or occurrence.” Id. Here, the original counts set forth in the June 2, 2000, certiorari

petition included damage claims based on the February 2000 Denial. LBH’s complaint filed on

August 24, 2000, echoed these damage claims and were all based on the same occurrence: the

February 2000 Denial. Although LBH added a section 1983 claim, the allegations in the 2001

complaint were based on the same transaction or occurrence as the allegations in the 2000

complaint. Therefore, LBH’s claims based on the February 2000 Denial are not barred by the one-

year statute of limitations.

2. Relation Back and the Continuing Violation Doctrine

        On March 15, 2002, LBH amended its complaint to add claims based on events occurring

in October 1999 and October 2000. The district court determined that these new claims did not

“relate back” to the August 24, 2001 filing for purposes of tolling the statute of limitations. In

particular, the district court noted that the new claims did not arise out of the incident identified in

the initial complaint and were not part of any “continuing violation.” We agree.




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       An amended pleading relates back to the original pleading when the amended pleading

alleges a new legal theory for the same injury, or when the amended pleading more specifically

defines terms or events in the original pleading. See Miller, 231 F.3d 242, 248-49. The August 24,

2001 complaint specifically set forth only one improper transaction or occurrence, namely, the

February 2000 Denial. By contrast, the March 15, 2002 amendment sets forth actions based on other

occurrences. As a result, with regard to any claims based on occurrences outside of the February

2000 Denial, LBH’s amended complaint does not relate back to the August 24, 2001 complaint.

       Additionally, LBH’s claims concerning the improper denial of building permit applications

and imposition of delays do not constitute a continuing violation. A continuing violation occurs

when there is a “longstanding and demonstrable policy of discrimination.” LRL Props. v. Portage

Metro Hous. Auth., 55 F.3d 1097, 1105-06 (6th Cir. 1995). “Courts have been extremely reluctant

to apply this doctrine outside of the context of Title VII.” Id. at 1105 n.3. “Unrelated incidents of

discrimination will not suffice to invoke this exception; rather there must be a continuing over-

arching policy of discrimination.” Id. at 1106 (internal quotation marks omitted). In LRL

Properties, this Court faced a similar claim for a continuing violation. In that case, owners of low-

income housing developments sued a local housing authority under section 1983, claiming equal

protection, procedural due process, and substantive due process violations, as well as various state

law violations. Id. at 1103. The property owners complained that the housing authority sought to

replace them with developers whom the housing authority favored. The property owners alleged,

among other things, that the housing authority entered into secret deals with other developers in

order to buy out the plaintiffs’ property; that on three occasions the housing authority refused to give

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plaintiffs rent increases which were required under federal regulations; and that housing authority

inspectors more rigorously enforced safety standards on plaintiffs’ properties. See 55 F.3d at 1101-

1102. We determined that the plaintiffs had alleged a “series of discrete and separate acts that, at

best, are separate incidents of discrimination and are not sufficient, even when the plaintiffs’

pleadings are liberally construed, to establish an ‘over-arching policy of discrimination.’” Id. at

1106. As with the claims in LRL Properties, LBH has not established that Collierville engaged in

a continuing, over-arching policy of discrimination. Accordingly, LBH’s claim that it suffered from

a continuing violation fails.

C. Merits

       LBH argues that the district court should have refrained from ruling on the merits of the case

because the Chancery Court never “officially” dismissed the original counts that LBH joined in its

writ of certiorari. Although LBH voluntarily dismissed these counts and refiled them, leading to

their removal to federal court, LBH now claims that these counts are still pending in the Chancery

Court because there was no order of dismissal as to these counts. LBH asserts that the district court

should not have considered the case, citing to the doctrine of “prior suit pending” under Tennessee

law. The Tennessee doctrine of “prior suit pending,” however, is a state law doctrine which plainly

does not apply to federal courts. City of Newport v. Masengill Auction Co., 19 S.W.3d 789, 794

(Tenn. Ct. App. 1999).

       A party alleging that a federal court should have abstained from hearing a matter would

typically rely on a federal doctrine such as Younger or Pullman abstention. See Younger v. Harris,



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401 U.S. 37 (1971); R.R. Comm’n v. Pullman Co., 312 U.S. 496 (1941). Under these doctrines, the

federal court would abstain from deciding a case that is pending in state court on the grounds of

comity and federalism. There is no reason why the district court should have abstained from hearing

the removed claims here, given that the Chancery Court could not have entertained the original

claims as they were improperly filed. Thus, the federal court would not be interfering with any state

court proceeding under either Younger or Pullman. See also Southland Mall, Inc. v. Garner, 455

F.2d 887 (6th Cir. 1972) (finding that abstention would be inappropriate where the plaintiff appealed

the property valuation decision of the State Board of Equalization to state court and then filed a

separate claim in district court seeking a refund of property taxes, because the “remedies available

to Appellant in this type of state court proceeding convinces us that there is no possibility that any

decision in the state court could eliminate the need for facing the constitutional question presented

here”). Accordingly, the district court was within its province to rule on the merits.

       Turning to the merits of LBH’s section 1983 claim, LBH has failed to allege properly a

violation of any federal right. Although LBH has advanced a plethora of claims, LBH has not

sufficiently advanced any argument in support of these claims. Thus, the district court did not err

in dismissing such claims.

       We note further that LBH has failed to provide any reason why the February 2000 Denial

was a violation of LBH’s right under the equal protection clase. As the district court noted, LBH

has not claimed that it was a member of any suspect class; hence, it would have the burden of

showing that the permit denial was improper under rational basis review. Muller v. Lujan, 928 F.2d



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207, 210 (6th Cir. 1991). By all accounts, Collierville granted several other permits to LBH, and

the denial of the subject application in February 2000 was to ensure the repair of other property.

LBH has simply not shown how this denial was irrational. Accordingly, the district court properly

dismissed this claim.         Further, the district court correctly denied LBH’s substantive due

process claim because the February 2000 Denial did not “shock the conscience,” as would be

required for a constitutional remedy. Mertik v. Blalock, 983 F.2d 1353, 1367-68 (6th Cir. 1993).

As with our ruling in LRL Properties that alleged actions by government officials did not “shock the

conscience,” LBH’s claims do not meet this standard. LBH’s remaining allegations that the permit

denial violated its right to associate with Raintree and constituted a taking, also lacks merit. LBH

has proffered no reason why the denial of its application infringed on its right to associate with

Raintree in any way that is proscribed by the First Amendment. See generally Hill v. Mitchell, 400

F.3d 308, 335 (6th Cir. 2005) (noting the burden on parties to make some effort at developed

argumentation beyond perfunctory assertions). Similarly, LBH has set forth no sound basis for its

takings claim.

                                      III. CONCLUSION

       For the preceding reasons, we hereby AFFIRM the judgment of the district court.




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