     Case: 13-51056      Document: 00512725510         Page: 1    Date Filed: 08/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                      No. 13-51056                               FILED
                                                                            August 7, 2014
                                                                            Lyle W. Cayce
ROBERT A. LEVY; PHYLLIS B. LEVY,                                                 Clerk

                                                 Plaintiffs-Appellants
v.

THE CITY OF EL PASO; EL PASO ELECTRIC COMPANY; JOYCE
WILSON,

                                                 Defendants-Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:13-cv-00129


Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants Robert and Phyllis Levy appeal the district court’s
Rule 12(b)(6) dismissal of their Section 1983 due-process claims based on
Defendant-Appellee the City of El Paso’s termination of electrical service to
one of the Levys’ rental properties. Affording liberal construction to the Levys’
pleadings and appellate briefs, 1 we affirm for the following reasons:


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520-
21 (1972).
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                                  No. 13-51056
       • The district court held that the Levys failed to state a procedural
          due process claim because, even accepting all allegations as true
          and viewing them in the light most favorable to the Levys, their
          complaint and its attachments demonstrated that the City
          provided adequate notice and an opportunity to be heard before
          disconnecting the Levys’ electrical service. The City’s initial Notice
          of Violation included a detailed listing of the property’s
          deficiencies, and thus gave the Levys adequate notice more than
          ten months before the disconnection. The Levys’ complaint does
          not allege that they did not receive an adequate opportunity to be
          heard; to the contrary, the complaint explicitly refers to their
          several meetings with City officials, including at least one on-site
          meeting at the property. The district court’s dismissal of the Levys’
          procedural due process claim was proper.
       • The district court held that the Levys similarly failed to state a
          substantive due process claim, relying principally on our decision
          in Hidden Oaks Ltd., et al. v. City of Austin and its conclusion that
          municipalities have a substantial and legitimate interest in
          ensuring that substandard housing remains unoccupied. 2 We
          agree that this legitimate interest provides a rational basis for the
          legislative and enforcement acts alleged in the Levys’ complaint.
          The district court’s dismissal of the Levys’ substantive due process
          claim was proper.




 2   138 F.3d 1036, 1043 (5th Cir. 1998).
                                            2
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                                    No. 13-51056
          • In light of the above, we agree with the district court’s conclusion
             that any amendment of the Levys’ complaint would have been
             futile. 3
      We hold that the district court properly dismissed the Levys’ complaint
with prejudice without first allowing the Levys an opportunity to amend it.
AFFIRMED.




      3 Martin’s Herend Imports, Inc. v. Diamond & Gem Trading United States of America
Co., 195 F.3d 765, 771 (5th Cir. 1999) (“A district court acts within its discretion when
dismissing a motion to amend that is frivolous or futile.”).
                                           3
