                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


THE SOUTHSIDE TRUST; THOMAS E.          
TILLEY,
              Plaintiffs-Appellants,
                 v.
TOWN OF FUQUAY-VARINA; JOHN
ELLIS, in his capacity as Mayor for
the Town of Fuquay-Varina, and
individually; LARRY W. BENNETT, in
his capacity as Town Manager for
the Town of Fuquay-Varina, and
individually; RACHEL TURNER, in her
capacity as Town Clerk and Finance
Director for the Town of Fuquay-
Varina, and individually, W. MARK               No. 02-1292
CUMALANDER, in his capacity as
Attorney for the Town of Fuquay-
Varina, and individually; MICHAEL
SORENSEN, in his capacity as
Planning Director for the Town of
Fuquay-Varina, and individually;
DOES 1-10, in their capacity as
Commissioners for the Town of
Fuquay-Varina who voted to impose
three times the "in town" sewage
rate upon the Park and/or a double
rate upon Chandler Ridge
Apartments, and individually,
                Defendants-Appellees.
                                        
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
              Terrence W. Boyle, Chief District Judge.
                       (CA-00-248-5-BO(2))
2          THE SOUTHSIDE TRUST v. TOWN OF FUQUAY-VARINA
                        Argued: April 3, 2003

                       Decided: June 23, 2003

         Before WILLIAMS and MICHAEL, Circuit Judges,
        and Terry L. WOOTEN, United States District Judge
      for the District of South Carolina, sitting by designation.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

ARGUED: Donald M. Brown, Jr., Charlotte, North Carolina, for
Appellants. Susan K. Burkhart, CRANFILL, SUMNER & HART-
ZOG, L.L.P., Raleigh, North Carolina, for Appellees. ON BRIEF:
Cathi J. Hunt, CRANFILL, SUMNER & HARTZOG, L.L.P.,
Raleigh, North Carolina, for Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   For several years the plaintiffs, The Southside Trust and its trustee,
Thomas E. Tilley, have been underpaying and disputing the sewer
bills the Town of Fuquay-Varina, North Carolina, sends them for ser-
vice provided to a trailer park owned by the trust. The trust and Tilley
have sued Fuquay-Varina and several of its officials, claiming that the
town’s billing and collection practices have violated the trust’s consti-
tutional rights. The district court granted summary judgment for the
town and its officials, and we affirm.
           THE SOUTHSIDE TRUST v. TOWN OF FUQUAY-VARINA                3
                                   I.

   The Southside Trust ("Southside") owns Southside Mobile Home
Park ("the park"), which is located outside Fuquay-Varina ("the
town"). Sometime in 1994 the park’s wastewater system began to fail.
One of the park’s managers, Bruce Tilley, asked the town to provide
sewer service, and in 1996 the town agreed to provide it. The town
sent a letter to Southside noting that the park would be "charged in
accordance to the current Water/Sewer Ordinance." The ordinance
created a three-zone sewage rate system. Customers within the town
boundaries paid the base rate; customers in the perimunicipal area, the
zone immediately outside the town boundaries, paid double the in-
town rate; and customers outside of the perimunicipal area, including
Southside, paid triple rates.

   Southside connected to the town sewer system in August 1997.
When the first bill arrived, Bruce Tilley refused to pay the triple rate
and sent payment for what the bill would have been if the town had
charged the double rate, a difference of close to $10,000. Southside
persisted in its refusal to pay the triple rate. Moreover, Southside soon
concluded that it was being charged for about 65 percent more sew-
age than it was actually discharging. Southside’s agreement with the
town provided that Southside would install a wastewater meter. The
meter Southside installed did not work well and was apparently caus-
ing the incorrect readings. Eventually, the meter was fixed and the
town adjusted the rate to make up for the overcharges; the town, how-
ever, did not provide Southside with its calculations. Southside con-
tinued to refuse to pay the full amount the town said was owed.

   Southside and the town exchanged several letters over the course
of 1998. Each time, Southside claimed it was being overcharged and
refused to pay the full amount, and each time, the town demanded full
payment. In February 1999 the town manager wrote to Southside say-
ing that if it did not pay its arrearages by March 22, he would "appear
before the Utilities Commission to request that all water service to
your park be discontinued so that the town will no longer accept
wastewater discharge." Eventually, the town reduced the rates to dou-
ble the in-town rate, but this did not resolve the arrearage dispute.

   In March 2000 the town sued Southside in state court for breach
of contract and unjust enrichment to recover the unpaid fees, which
4          THE SOUTHSIDE TRUST v. TOWN OF FUQUAY-VARINA
by then totaled $66,786.98. A week later, Southside brought this
action in U.S. district court against the town and several of its offi-
cials in their official and individual capacities, alleging various consti-
tutional violations. Southside then removed the town’s case to federal
court, and the cases were consolidated. The town moved for summary
judgment on all claims, including its own state law claims against
Southside. The district court granted summary judgment on the merits
for the town and its officials on Southside’s claims; in the alternative,
the court held that the town officials were entitled to qualified immu-
nity on Southside’s claims against them in their individual capacities.
The district court then remanded the town’s claims against Southside
to state court. Southside appeals the district court’s grant of summary
judgment to the town and its officials (in their official capacities) on
Southside’s procedural due process claim. Southside thus does not
challenge the district court’s qualified immunity ruling. We review
the district court’s grant of summary judgment de novo. Bass v. E.I
DuPont de Nemours & Co., 324 F.3d 761, 766 (4th Cir. 2003). Sum-
mary judgment should be granted if, viewing the evidence in the light
most favorable to the non-moving party, there is no genuine issue of
material fact, and the moving party is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-52 (1986).

                                    II.

   "The Fourteenth Amendment places procedural constraints on the
actions of government that work a deprivation of interests enjoying
the stature of ‘property’ within the meaning of the Due Process
Clause." Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9
(1978). In general, to prove a procedural due process violation, a
plaintiff must show that (1) it has a property interest, (2) it was
deprived of that interest, and (3) the deprivation occurred without due
process of law. Tri-County Paving, Inc. v. Ashe County, 281 F.3d 430,
436 (4th Cir. 2002). Southside relies on Memphis Light, which holds
that a public utility customer may have a property interest in contin-
ued service, and the Due Process Clause may require the utility to
provide a hearing before cutting off service.

   The problem here is that Southside has not shown that it has a pro-
tected property right in continued sewer service. Property rights are
           THE SOUTHSIDE TRUST v. TOWN OF FUQUAY-VARINA                5
created not by the Constitution itself but by "an independent source
such as state law." Bd. of Regents of State Colleges v. Roth, 408 U.S.
564, 577 (1972). The Constitution’s due process guarantee protects
non-tangible property rights, like employment, welfare benefits, or
utility services, when applicable law mandates that such rights may
be terminated or withheld only for cause. Thus, a person claiming a
property interest in a governmental benefit "must . . . have a legiti-
mate claim of entitlement." Gardner v. City of Baltimore, 969 F.2d
63, 68 (4th Cir. 1992) (quoting Roth, 408 U.S. at 577). By contrast,
if the government may refuse to provide the benefit at will, without
any constraints on its reasons, then the benefit is not a protected prop-
erty interest, and no process is due. See Memphis Light, 436 U.S. at
11-12 & n.11.

   Under North Carolina law, municipalities are under no obligation
to provide sewer service to those living outside corporate limits. Atl.
Const. Co. v. City of Raleigh, 53 S.E.2d 165, 168 (N.C. 1949). South-
side has offered us no reason to believe that a municipality like
Fuquay-Varina that chooses to provide sewer service to out-of-town
customers takes on any obligation to continue that service. Accord
N.C.G.S. § 62-3(23)(d) (Lexis 2001) (excluding municipalities from
the definition of "public utility" subject to regulation by North Caro-
lina Utilities Commission); Fulghum v. Town of Selma, 76 S.E.2d
368, 371 (N.C. 1953) ("When a municipality exercises [the power to
offer services to nonresidents], it does not assume the obligations of
a public service corporation toward nonresident customers.").
Fuquay-Varina, as far as state law is concerned, may terminate sewer
service to nonresidents at will. Here, it is bound only by its contract
with Southside. The utility company in Memphis Light, by contrast,
was obligated under Tennessee law to continue service to the plain-
tiffs unless it had cause to terminate. Memphis Light, 436 U.S. at 9-
11. The plaintiffs in Memphis Light therefore had a property right in
continued service and could claim the constitutional guarantee of due
process. Southside has not offered proof to show that it has a similar
property right; it has only offered proof of contract rights, which are
not protected by the Due Process Clause.

   Even if Southside has a property right in continued sewer service,
it has not shown, or even alleged, that it has been deprived of that
property. While Memphis Light is clear that customers with an entitle-
6          THE SOUTHSIDE TRUST v. TOWN OF FUQUAY-VARINA
ment to continued utility service have the right to a hearing before
service is terminated, id. at 19-20, that right is not violated until ser-
vice is actually cut off. The constitutional violation is not the failure
to provide a hearing, but the act of cutting off service without a hear-
ing — the deprivation of property without due process. Cf. Zinermon
v. Burch, 494 U.S. 113, 125 (1990) ("In procedural due process
claims, the deprivation by state action of a constitutionally protected
interest in ‘life, liberty, or property’ is not in itself unconstitutional;
what is unconstitutional is the deprivation of such an interest without
due process of law.").

   In the present case, sewer service to the park was never terminated.
If a plaintiff still has utility service, but shows that it will be cut off
before there is a chance for a hearing, he may have a claim under
Memphis Light. Southside, however, has not shown that termination
is imminent. Although the town threatened in a February 1999 letter
to cut off sewer service to Southside, the record shows that the dis-
pute was still ongoing, and the town was still providing sewer service,
in January 2001, about two years after the letter. There has been no
suggestion in this appeal that the situation is any different today. Fur-
thermore, it appears that the town would run into problems with the
State of North Carolina and Wake County if it cut off Southside’s
sewer service. According to an affidavit from a supervisor at the
county water quality office, "[t]he [North Carolina] Department of
Environment and Natural Resources and Wake County Department of
Environmental Services will not permit the Town of Fuquay-Varina,
without order of the court, to disconnect the sewage services to South-
side Mobile Home Park because untreated sewage may be discharged
in Mill Branch." In short, Southside has not shown that there is an
imminent danger of the termination of its sewer service, let alone ter-
mination without a hearing.

   Because Southside has not shown that it can establish the elements
of a procedural due process violation, the district court did not err in
granting summary judgment to the town and its officials. The judg-
ment is therefore affirmed.

                                                             AFFIRMED
