                   United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 96-2736
                               _____________

Thomas H. Johnson, III,                *
                                       *
             Plaintiff - Appellant,    *
                                       *   On appeal from the United States
       v.                              *   District Court for the
                                       *   District of Minnesota
City of Minneapolis; John Mori,        *
Chief Finance Officer; Michael         *
Cunningham; John Utley, Bond Council; *
Sharon Sayles-Belton, Mayor, Member *
of the Board of Estimate and Taxation; *
Jackie Cherryhomes, Minneapolis City *
Council, Member of the Board of        *
Estimate and Taxation; Jack Qvale,     *
Executive Secretary of the Board of    *
Estimate and Taxation; Irving Weiser, *
Dain Bosworth, Inc.; Roger Wikner,     *
Miller & Schroeder Financial Services, *
Inc.,                                  *
                                       *
             Defendants - Appellees.   *

                               _____________

                              Submitted: June 10, 1998

                              Filed: August 13, 1998
                               _____________
Before BOWMAN, Chief Judge, BEAM, Circuit Judge, and GAITAN,1 District Judge.
                             _____________

FERNANDO J. GAITAN, JR., District Judge.

       Thomas A. Johnson III appeals from the district court’s order of dismissal.
Johnson brought this action pro se on behalf of himself and other plaintiffs. The district
court granted defendants’ motion to dismiss, finding that plaintiffs had not sufficiently
pled a class action, had not pled a sufficient property or liberty interest to give rise to
due process claims, and had not sufficiently pled equal protection claims. Johnson,
now through counsel, appeals the district court’s order as to dismissal of the merits but
not as to class certification. Because we conclude that the district court2 correctly
determined that Johnson failed to present any claims that could entitle him to relief, we
affirm the district court's order dismissing the case.

I.    BACKGROUND

      Johnson initiated this action after the City of Minneapolis purchased the Target
Center Arena from private owners in 1995 using the proceeds of a City of Minneapolis
bond issue. Johnson and the other plaintiffs,3 all of whom were residents of the City
of Minneapolis, objected to the constitutionality of the bond issue and sued in district
court on due process and equal protection grounds.




      1
        The HONORABLE FERNANDO J. GAITAN, JR., United States District Judge
for the Western District of Missouri, sitting by designation.
      2
        The HONORABLE JOHN R. TUNHEIM, United States District Judge for the
District of Minnesota.
      3
        Although several plaintiffs were involved in this case, only Johnson appeals the
district court’s final decision.

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       In a four-count complaint, plaintiffs brought two equal protection claims, a claim
pursuant to 42 U.S.C. § 1983, and a § 1985 conspiracy claim. As the district court
correctly pointed out, 42 U.S.C. § 1983 does not provide substantive rights, but rather
creates a cause of action for deprivation of a claimant’s constitutional rights by any
person under color of state law. 42 U.S.C. § 1985 creates a cause of action for
conspiracy to deprive any person or class of persons of equal protection of the law.

II.   DISCUSSION

       We review the district court's Fed.R.Civ.P. 12(b) dismissal of Johnson’s action
de novo. See Concerned Citizens of Neb. v. United States Nuclear Regulatory
Comm'n, 970 F.2d 421, 425 (8th Cir.1992). We must construe the allegations in the
complaint in the light most favorable to Johnson, see id., and should not approve
dismissal of his complaint for failure to state a claim unless "it appears beyond doubt
that [he] can prove no set of facts in support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80
(1957) (footnote omitted).

       Appellant presents only one question on appeal: Did the district court err in
finding that the complaint failed to plead a sufficient declaratory judgment action? This
court will first consider this issue in the context of appellant’s due process claim, and
then as it relates to the equal protection claims.

      A.     Due Process

       A due process claim is cognizable only if there is a recognized liberty or property
interest at stake. Movers Warehouse, Inc. v. City of Little Canada, 71 F.3d 716, 718
(8th Cir.1995). Property interests are created by existing rules or understandings that
stem from an independent source, such as state law. Board of Regents v. Roth, 408
U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

                                           -3-
       The appellant contends that a property interest exists as a result of the
referendum requirement imposed by the Minneapolis Home Rule Charter (“Charter”).4
The Charter provides direction for the Board of Estimate and Taxation when issuing
bonds, and commands that bond issues exceeding $15,000,000 must first be approved
by a majority of the electors. However, the bonds that are the subject of this dispute
were not issued pursuant to the Charter by the Board of Estimate.

       Instead, the bonds were issued by the Minneapolis City Council under the
authority granted in Minn. Stat. 469.129.5 This statute deals with the issuance of
municipal bonds for economic development purposes. Appellant claims that the
provisions of the Charter requiring a referendum still apply. We, like the district court,
hold to the contrary.

       Johnson argues that the Charter still must apply, apparently because a Minnesota
statute exists which, if it were applicable, would subject the issuance of bonds to city
charter-based limitations. The problem with Johnson’s argument is that Minn. Stat.


      4
       Minneapolis Home Rule Charter Ch. 15, § 9, provides:

      Upon request of the City Council expressed by ordinance or resolution
      adopted by the votes of two-thirds of all the members thereof, the Board
      of Estimate and Taxation in its discretion ... shall have the power to issue
      and sell negotiable bonds ... [If the amount of indebtedness exceeds
      $15,000,000] the Board of Estimate and Taxation shall not issue or sell
      any [such] bonds ... without approval of a majority of the electors.
      5
          Minn.Stat. § 469.129(1) states that:

      The governing body may authorize, issue and sell general obligation
      bonds to finance the acquisition and betterment of real and personal
      property needed to carry out the development program within the
      development district. The bonds shall ... be issued in accordance with
      [enumerated sections of Minn.Stat. Ch. 475].

                                            -4-
475.52(2)6 is not, in fact, applicable to bonds issued pursuant to § 469.129. Section
469.129 specifically enumerates several statutes that apply. Minn.Stat. § 475.52(2),
imposing charter-based limitations on the authority to issue bonds, has not been made
applicable to § 469.129.

       Putting another twist on the same argument, Johnson claims that this bond issue
is a matter of local concern and that therefore, according to Minnesota law, the Charter
should apply. Although enactments by home rule cities are generally given full
legislative force in Minnesota, State v. City of Crookston, 91 N.W.2d 81, 83 (Minn.
1958), they are usurped when the state legislature has “expressly or impliedly restricted
the municipality’s power over these matters[.]” Gadey v. City of Minneapolis, 517
N.W.2d 344, 348 (Minn.Ct.App. 1984); see also, Lilly v. City of Minneapolis, 527
NW.2d 107, 111 (Minn.Ct.App. 1995). As discussed, supra, several sections of
Chapter 475 are referenced as applicable to § 469.129, but § 475.52(2) is not one of
them. Hence, the referendum requirement of § 475.52(2) is not imposed, or is
“impliedly restricted” from the issuance of bonds pursuant to § 469.129. Because
Johnson had no legitimate expectation that he would be entitled to vote on any bonds
issued under Minn. Stat. § 469.129, he lacks a protected liberty or property interest
upon which to base a due process claim.




      6
       Home rule charter cities.

      Any city governed by a home rule charter may issue bonds for any
      purpose enumerated in subdivision 1 unless forbidden by its charter,
      except that any such city may issue bonds for the acquisition of
      ambulances and related equipment notwithstanding the provisions of its
      charter; and for other purposes as authorized by its charter.

      Minn.Stat. § 475.52(2)

                                          -5-
       B.     Equal Protection

       Appellant next argues that the district court erred in finding there to be no class
of people who had received disparate treatment in violation of the equal protection
clause. To state an equal protection claim, appellant must have established that he was
treated differently from others similarly situated to him. See Klinger v. Department of
Corrections, 31 F.3d 727, 731 (8th Cir.1994), cert. denied, 513 U.S. 1185, 115 S.Ct.
1177, 130 L.Ed.2d 1130 (1995).

       The district court found that “plaintiffs neither describe the classification at issue
nor identify any differential treatment to which they have been subjected.” The court,
finding that the only class plaintiffs identified was that of qualified voters in the City
of Minneapolis, applied rational basis review and dismissed plaintiffs’ claims.

      On appeal, appellant, through counsel, now attempts to recharacterize the equal
protection claims. “[W]hat [Johnson] meant to say is that his right to vote was
abrogated.” Brief of Appellant, p. 16. However, the cases cited by appellant are
inapposite, for they involve legislation that impacted the voting power of a particular
group (e.g. racial minority groups), whereas appellant concedes that this case does not
involve a protected class.

       Because no protected class is involved, the legislative decision -- to except
economic development bonds from referendum requirements -- is reviewed only for a
rational basis. Where rational basis review is appropriate, the plaintiff/appellant bears
the burden of proof, and the statute in question bears a strong presumption of validity.
 F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 2101-2,
124 L.Ed.2d 211 (1993) , citing Lyng v. Automobile Workers, 485 U.S. 360, 370, 108
S.Ct. 1184, 1192, 99 L.Ed.2d 380 (1988). Because we agree that the complaint does
not plead an equal protection claim upon which relief could be granted, we also affirm
this portion of the district court’s decision.

                                            -6-
III.   CONCLUSION

       For the reasons set forth above, we affirm the judgment of the district court.

       A true copy.

             Attest:

                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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