                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3759
                                   ___________

Terry Creason; Janet Creason,              *
                                           *
            Appellants,                    *
                                           *
      v.                                   *
                                           *
City of Washington, a municipal            *
corporation of the third class; Richard    *
Stratman, Mayor of the City of             *
Washington; Walter E. Larson, Former       *
Mayor of the City of Washington; Jim       *
Briggs, City Administrator; Daniel E.      *
Boyce, Washington City Engineer; Tim       *   Appeal from the United States
Overschmidt, Washington City               *   District Court for the
Council; Robert Engemann,                  *   Eastern District of Missouri.
Washington City Council; Tessie            *
Steffens, Washington City Council;         *
John Rhodes, Washington City               *
Council; Kevin Hellmann, Washington        *
City Council; Tim Brinker,                 *
Washington City Council; John Politte,     *
Washington City Council; Bradley           *
Bruns, Washington City Council, Said       *
Individuals being sued in their Official   *
Capacities,                                *
                                           *
            Appellees.                     *
                                   ___________

                         Submitted: October 14, 2005
                             Filed: February 1, 2006
                                  ___________

Before RILEY, JOHN R. GIBSON, and COLLOTON, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

      Terry Creason and Janet Creason (Creasons) appeal the district court’s1
dismissal of their 42 U.S.C. § 1983 action. After de novo review, we agree the
Creasons failed to state a claim for which relief can be granted, and we affirm.

I.     BACKGROUND
       On March 24, 2000, the Creasons purchased a single family residence and tract
of land on Steutermann Road in the City of Washington, Missouri (City). During
2000 and 2001, the City improved Steutermann Road to turn Steutermann Road into
“an attractive alternate to Highway 100.” On January 17, 2003, the City imposed a
“special assessment” against the owners of lots adjacent to Steutermann Road,
including the Creasons, in the amount of $18.04 per linear foot. The City gave all
affected landowners the option of exchanging an easement for the special assessment
costs of improving Steutermann Road. In other words, the City permitted landowners
to offset the value of the donated land against the special assessment.

      The Creasons declined the City’s offset offer. The City initiated condemnation
proceedings against the Creasons, and as a result of the condemnation proceedings,
the City paid the Creasons a $6,870 condemnation award. The City thereafter


      1
       The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.

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imposed a special assessment on the Creasons’ property in the amount of $5,258.66
(approximately 77% of the condemnation award).

       The Creasons sued the City and various City officials in state court, and the
City removed the action to federal court. In Count I, the Creasons sought a
declaratory judgment and injunctive relief against the special assessment, alleging the
special assessment “constitutes an unlawful and unauthorized cloud and lien on [the
Creasons’] title” and asking the court to declare the special assessment “null and
void.” In Count II, the Creasons sought damages under 42 U.S.C. § 1983, alleging the
special assessment violates the Due Process Clause; the right to just compensation; the
Equal Protection Clause; the Uniform Relocation and Real Property Acquisition
Policies Act (URA), 42 U.S.C. §§ 4601-4655; and Missouri law.

      The City filed a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), arguing the Creasons failed to allege sufficient facts supporting their claims.
The district court (1) dismissed the Creasons’ claims under section 1983, concluding
the Creasons failed to state a claim for which relief can be granted; (2) dismissed the
Creasons’ claim under the URA, because the URA does not create a private right of
action; and (3) declined to exercise supplemental jurisdiction over the Creasons’ state
law claims.

      The Creasons appeal the district court’s dismissal of their section 1983 claims
in Count II, arguing they stated a cause of action “based on the City’s violation of
[the Creasons’] constitutional rights to due process, just compensation and equal
protection of the laws.”

II.    DISCUSSION
       “We review de novo a district court’s grant of a motion to dismiss.” MM&S
Fin., Inc. v. Nat’l Ass’n of Sec. Dealers, Inc., 364 F.3d 908, 909 (8th Cir. 2004)



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(citation omitted). Under Rule 12(b)(6), we must accept the Creasons’ factual
allegations as true and grant all reasonable inferences in the Creasons’ favor. Id.

       To survive dismissal of their section 1983 cause of action, the Creasons must
have sufficiently alleged the City deprived them of a right “secured by the
Constitution and laws” of the United States, and the deprivation was caused by a
person or persons acting under color of state law. 42 U.S.C. § 1983; Flagg Bros., Inc.
v. Brooks, 436 U.S. 149, 155 (1978). The Creasons asserted three section 1983 causes
of action: (1) violation of the Equal Protection Clause, (2) violation of the Due
Process Clause, and (3) violation of their right to just compensation.

       A.    Equal Protection Claim
       In their complaint, the Creasons first alleged the City violated the Equal
Protection Clauses of the Fifth and Fourteenth Amendments of the United States
Constitution and article I, section 2, of the Missouri Constitution, because the City did
not apply the special assessments uniformly against the affected landowners.2 The
Equal Protection Clause requires the government treat all similarly situated people
alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). As a
threshold matter, “[t]o state an equal protection claim, [the Creasons] must have
established that [they were] treated differently from others similarly situated.”
Johnson v. City of Minneapolis, 152 F.3d 859, 862 (8th Cir. 1998).




      2
        The Creasons alleged violations of both the United States and Missouri
Constitutions, but the parties do not separately address federal and state constitutional
law. Because the parties appear to assume the state and federal standards are the
same, and because the Missouri Constitution uses language substantially similar to the
United States Constitution, we confine our analysis to federal constitutional law and
accept the parties’ implicit concession the analysis under Missouri constitutional law
is the same.

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       The district court observed that an exhibit attached to the Creasons’ complaint
showed the City assessed all similarly situated landowners at the same rate per linear
foot. Therefore, the district court determined the Creasons’ equal protection claim
was insufficient as a matter of law. We agree with the district court. The City
imposed a special assessment against every owner of lots adjacent to Steutermann
Road, including the Creasons, in the amount of $18.04 per linear foot. The City also
permitted every affected landowner to offset the value of the donated land against the
special assessment. Although the Creasons were the only affected landowners to
decline the City’s offset offer and instead seek just compensation in condemnation
proceedings, the City treated the Creasons and other similarly situated landowners the
same.3 Thus, we affirm the district court’s dismissal of the Creasons’ equal protection
claim.

       B.     Due Process Claim
       The Creasons’ second cause of action asserted the special assessment violated
their constitutional right to due process. The Due Process Clause of the Fourteenth
Amendment prohibits governments from depriving “any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1. This clause has
two components: procedural due process and substantive due process. County of
Sacramento v. Lewis, 523 U.S. 833, 840 (1998).

       The Creasons’ complaint did not state whether their due process cause of action
was a substantive due process or a procedural due process claim, and the district court


      3
        To the extent the City treated landowners differently, by using donated land
with values not matching amounts due under the assessment to offset the special
assessment, the Creasons’ equal protection claim fails because the City had a rational
basis for any dissimilar treatment. See Weiler v. Purkett, 137 F.3d 1047, 1051 (8th
Cir. 1998) (en banc) (quoting Romer v. Evans, 517 U.S. 620, 631 (1996)) (holding a
classification that does not burden a fundamental right or target a suspect class will
be upheld if it bears a rational relationship to a legitimate end).

                                          -5-
addressed only whether the Creasons sufficiently alleged a procedural due process
claim. To the extent the Creasons attempted to assert a substantive due process claim
as well as a procedural due process claim, both of their due process claims fail.

       As the district court recognized, the Creasons’ procedural due process claim
fails because the Creasons did not challenge the manner of any deprivation, such as
lack of notice or opportunity to be heard. See Parrish v. Mallinger, 133 F.3d 612, 615
(8th Cir. 1998) (“A procedural due process claim focuses not on the merits of a
deprivation, but on whether the State circumscribed the deprivation with
constitutionally adequate procedures.”).

       Any substantive due process claim also fails. In analyzing a substantive due
process claim, our task is two-fold. First, we consider whether the Creasons
“possessed a right arising under the [F]ourteenth [A]mendment.” Wells v. Walker,
852 F.2d 368, 370 (8th Cir. 1988). Second, we determine “whether [the City’s]
conduct deprived [the Creasons] of [that right] within the meaning of the due process
clause.” Id. “To meet [this] burden [the Creasons] must demonstrate that the
government action complained of is truly irrational, that is something more than . . .
arbitrary, capricious, or in violation of state law.” Klein v. McGowan, 198 F.3d 705,
710 (8th Cir. 1999) (internal quotation omitted).

       The Creasons failed to allege sufficient facts supporting either element of a
substantive due process claim. First, the Creasons do not allege or argue their
monetary interest in being free from a special assessment is a liberty interest “deeply
rooted in this Nation’s history and tradition” so as to be protected by the Fourteenth
Amendment. Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quotation
omitted). Second, the City’s imposition of the special assessment was not so
“arbitrary” or “conscience-shocking” as to violate due process. See Lingle v. Chevron
U.S.A. Inc., 125 S. Ct. 2074, 2084 (2005); Lewis, 523 U.S. at 846; Bonebrake v.
Norris, 417 F.3d 938, 942 (8th Cir. 2005). The City had a valid public purpose in

                                          -6-
improving Steutermann Road in order to “provide an attractive alternate to Highway
100, thereby relieving traffic on this State Route.” Because the Creasons failed to
meet their burden of showing irrationality, they have failed to meet the second
element of a substantive due process claim. Klein, 198 F.3d at 710. Therefore, the
district court properly dismissed the Creasons’ due process claim.

        C.    Taking Claim
        Finally, the Creasons alleged the special assessment constituted an
unconstitutional taking without just compensation, in violation of the Takings Clause
of the Fifth and Fourteenth Amendments to the United States Constitution, and article
I, section 26, of the Missouri Constitution.

        It may be somewhat unclear whether special assessments for local
improvements constitute takings. Compare Village of Norwood v. Baker, 172 U.S.
269, 279 (1898) (holding a local government takes private property without just
compensation when, through a special assessment on land, it compels a landowner to
pay for a public improvement in an amount “in substantial excess of the special
benefits accruing to him”) and Myles Salt Co. v. Bd. of Comm’rs, 239 U.S. 478, 485
(1916) (holding when a special assessment is “formed to include property which is not
and cannot be benefitted directly or indirectly . . . there is an abuse of power and an
act of confiscation”) with Commonwealth Edison Co. v. United States, 271 F.3d 1327,
1329 (Fed. Cir. 2001) (en banc) (holding a special assessment “does not constitute a
Fifth Amendment taking because the Takings Clause does not apply to legislation
requiring the payment of money”) and City of Marshfield v. Brown, 88 S.W.2d 339,
340 (Mo. 1935) (holding a special assessment “is not an actual taking of or damage
to [] property”). Even if the special assessment did constitute a taking, the Creasons
have no taking claim because they do not allege they did not receive just
compensation. See Williamson County Reg’l Planning Comm’n v. Hamilton Bank,
473 U.S. 172, 194 n.13 (1985) (“As we have explained . . . because the Fifth
Amendment proscribes takings without just compensation, no constitutional violation

                                          -7-
occurs until just compensation has been denied.”). Thus, the Creasons’ taking claim
fails as a matter of law.



III.  CONCLUSION
       Therefore, we affirm the district court’s dismissal of the Creasons’ section 1983
action.
                        ______________________________




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