IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10880

DA VINCI INVESTMENT, LIMITED PARTNERSHIP, 

 Plaintiff - Appellee

v.

CHARLIE PARKER; KATHRYN WILEMON; SHERI CAPEHART; JIMMY 

BENNETT; MICHAEL GLASPIE, 

 Defendants - Appellants

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:13-CV-971

Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges.

PER CURIAM:*

Plaintiff Da Vinci Investment Limited Partnership sued the City of 

Arlington, Texas, and five city council members in their official and individual 

capacities. Da Vinci claimed violations of its substantive due process and equal 

protection rights under 42 U.S.C. § 1983, and also claimed that an unlawful 

taking occurred under the Texas Constitution. The individual council 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 11, 2015

Lyle W. Cayce

Clerk

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members filed a motion for judgment on the pleadings on the Section 1983 

individual capacity claims on the basis of absolute and qualified immunity. 

The district court denied the motion. This interlocutory appeal followed. We 

AFFIRM in part and REVERSE in part.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of a proposed development plan to build a car wash 

in Arlington, Texas. In 1991, Da Vinci purchased approximately 12 acres of 

undeveloped land in Arlington and obtained a zoning change on the property 

to “planned development” (“PD”). PD zoning provides that property can only 

be developed in accordance with an approved development plan. Over several 

years, Da Vinci developed and sold portions of the land. The land at issue in 

this appeal is Da Vinci’s sole remaining tract (the “Lot”). In 2012, Da Vinci 

contracted with a third party who would purchase the Lot; the purchase was 

conditioned upon approval by the City of a development plan to build a car 

wash. Pursuant to the PD zoning, a car wash was a permitted use on the Lot. 

In February 2013, the City conducted a review and found that the 

proposed development plan for a car wash was unlikely to have a negative

effect on the location and was consistent with the surrounding uses. In March, 

Da Vinci and the purchaser submitted a formal development plan application

for the Lot. That same month, a City staff report found that the plan complied 

with the minimum commercial design standards and would have no impact on 

traffic. 

There was significant opposition to the development plan from real 

estate developer Jim Poynter and two former city officials. These individuals 

sent emails to the council members stating their objections and sometimes 

attaching letters of opposition from community members. Council member 

Parker answered one such email from Poynter: “Thanks Jim more wood for 

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the fire and it is much appreciated.” Another email from Parker to Poynter 

stated: “I think that you have this thing knocked. I know that I can get [council 

member] Sheri[] [Capehart’s] vote against also.” 

In May, after a public hearing, the planning and zoning commission 

recommended against approving the development plan because the plan did 

not mitigate compatibility problems and enhance the neighborhood areas. Da

Vinci appealed the commission’s decision to the city council; the council agreed 

to hear the appeal. The next day, Poynter sent an email to council member 

Bennett inquiring about the decision to approve the appeal. Bennett 

responded: “I voted in favor because I have a personal policy to hear almost 

all [o]f these types [o]f requests. That being said, I cannot imagine a scenario 

where the case would ever get my support. Thanks for all you do Jim.” 

In August, the city council conducted a public hearing to consider the 

development plan. The hearing consisted of, among other things, a 

presentation by Da Vinci and opinions of citizens who spoke both for and 

against the plan. At the conclusion of the hearing, the council voted to deny 

the development plan application by a vote of 5-4. The denial was made 

without discussion. The contract of sale between Da Vinci and the purchaser 

was thereafter terminated. 

In November 2013, Da Vinci filed suit against the City and the council 

members in state court. The case was removed to the United States District 

Court for the Northern District of Texas. The council members filed a motion 

for judgment on the pleadings and a motion for summary judgment.1 In the 

motions, the council members argued they were entitled to absolute or at least 

qualified immunity. The district court denied the motion for judgment on the 

 

1 The pleadings before the district court were Da Vinci’s complaint and a Federal Rule 

of Civil Procedure 7(a) reply to the council members’ answer. No dispositive motions were 

filed by the City or the council members in their official capacities. 

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pleadings and did not consider the motion for summary judgment. The district 

court then issued a pretrial scheduling order directing the parties to conduct 

limited discovery related to the immunity defenses. The council members filed 

a timely appeal of the district court’s denial of absolute and qualified immunity 

and the discovery order.

DISCUSSION

Orders rejecting absolute and qualified immunity defenses are 

immediately appealable. Will v. Hallock, 546 U.S. 345, 350 (2006). A district 

court’s refusal to dismiss claims on the basis of absolute or qualified immunity 

is reviewed de novo. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). 

A motion for judgment on the pleadings under Federal Rule of Civil 

Procedure 12(c) is subject to the same standards as a Rule 12(b)(6) motion to 

dismiss. Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). “To survive 

a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007)). 

When asserting an immunity defense, “[i]t is sufficient that the movant 

in good faith pleads that it is entitled to absolute or qualified immunity.” Beck 

v. Tex. State Bd. of Dental Exam’rs, 204 F.3d 629, 633 (5th Cir. 2000). “Once 

the movant asserts this affirmative defense, the burden shifts to the plaintiff 

to rebut it.” Id. at 633-34 (citation, quotation marks, and alteration omitted). 

I. Absolute Immunity

“Local legislators are entitled to absolute immunity from § 1983 liability 

for their legislative activities.” Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998). 

To determine whether a particular activity is legislative, we use two tests:

The first test focuses on the nature of the facts used to reach the 

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given decision. If the underlying facts on which the decision is 

based are legislative facts, such as generalizations concerning a 

policy or state of affairs, then the decision is legislative. If the facts 

used in the decisionmaking are more specific, such as those that 

relate to particular individuals or situations, then the decision is 

administrative. The second test focuses on the particularity of the 

impact of the state action. If the action involves establishment of 

a general policy, it is legislative; if the action single[s] out specific 

individuals and affect[s] them differently from others, it is 

administrative.

Hughes v. Tarrant Cnty., 948 F.2d 918, 921 (5th Cir. 1991) (quotation marks 

omitted). 

The district court held that Da Vinci had “pleaded sufficient facts to 

overcome Individual Defendants’ absolute immunity defense.” The court 

relied on the fact that the denial of the development plan “affected a specific 

individual and a specific situation” and “was not a general and prospective 

action that affected the entire community or a prospective amendment of a 

larger general plan that merely related to Plaintiff’s property.”

The council members argue that they are entitled to absolute immunity 

because the denial of the development plan application was a legislative 

activity. They contend that the “process for obtaining approval of [Da Vinci’s] 

development plan application was a zoning event under the City’s code 

provisions” and zoning is a legislative activity.2 Da Vinci contends that this is 

not a zoning case because “it does not involve a change to the zoning 

classification for Da Vinci’s property.” It argues that the council members fail 

to distinguish between the ordinance processes for rezoning into a new PD 

district and plan approval for property in an existing PD zone. The denial of 

its development plan, Da Vinci argues, only involved the second step and was 

 

2 All ordinances referenced in this opinion are those that were in effect at the time of 

the events in question.

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therefore not a zoning decision. 

In one precedent, a developer submitted a plan to build apartments. 

Bryan v. City of Madison, 213 F.3d 267, 269 (5th Cir. 2000). The plan was 

approved, but the developer failed to apply for a permit within the deadline 

established by the city ordinances. Id. at 270. As a result, he was forced to 

resubmit the plan for approval. Id. His site plan was again approved, but the 

mayor vetoed it. Id. Bryan submitted another plan, which the board approved, 

and the mayor vetoed. Id. at 271. This pattern repeated itself until Bryan 

eventually lost his opportunity to purchase the land. Id. Bryan sued the 

mayor, among others, under Section 1983 alleging violation of his Fifth and 

Fourteenth Amendment rights. Id. at 272. The district court concluded the 

mayor was entitled to absolute immunity. Id.

On appeal, we reversed. Id. Applying the tests used in Hughes, we 

determined that the mayor’s vetoes were not legislative actions:

In each instance, the mayor was vetoing a determination that 

Bryan’s plan satisfied city zoning ordinances or building 

requirements. Such a determination does not involve the 

determination of a policy. Rather than constituting a prospective 

rule, an overall plan, or general policy, this determination entered 

the realm of enforcement with respect to approval of a specified 

proposed plan. Finally, under the two . . . tests, the determination 

was based on specific, particular facts and affected Bryan’s 

development alone.

Id. at 273 (internal quotation marks omitted). We also noted that, under our 

precedent, zoning is a legislative activity because it “is general and 

prospective” and “directly affects the entire community.” Id. We determined 

that “[i]n the present case, however, general rules are being applied to one 

specific piece of property” and therefore the activity was administrative rather 

than legislative. Id. at 273-74. 

Da Vinci’s development plan was “based on specific, particular facts and 

affected [Da Vinci’s] development alone.” See id. at 273. The denial of the plan 

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did not “involve the determination of a policy,” but, instead, applied “general 

rules . . . to one specific piece of property.” See id. at 273-74 (citation and 

quotation marks omitted). We conclude that the council members’ denial of Da

Vinci’s development plan was not a legislative decision. There is no absolute 

immunity for the council members’ actions. 

The council members argue that regardless of any similarity to the 

actions in Bryan, the present case involves zoning and Bryan did not. The 

City’s ordinances can be read to label the development plan review process as 

zoning, but we are not controlled by the labels a city chooses. The land was 

zoned PD twenty-two years prior to the development plan application. The 

decision being contested now involved “specific, particular facts,” which 

affected “[one] development alone,” and was in “the realm of enforcement with 

respect to approval of a specific proposed plan.” See id. at 273 (quotation marks 

omitted). A city cannot categorize all its decisions as “zoning” in order to grant 

its legislators blanket immunity. 

Da Vinci pleaded sufficient facts to overcome the council members’ claim 

to absolute immunity.

II. Absolute Quasi-Judicial Immunity

The district court held that “[p]laintiff’s allegations show that Individual 

Defendants’[] actions were not essentially judicial in nature and [they] were 

not performing functions essentially similar to those of judges when they voted 

to deny Plaintiff’s development plan and, therefore, Individual Defendants are 

not entitled to quasi-judicial immunity.” In doing so, it considered the factors 

enumerated in Butz v. Economou, 438 U.S. 478, 512 (1978).

Absolute quasi-judicial immunity protects officials that “perform 

functions comparable to those of judges and prosecutors.” Beck, 204 F.3d at 

634 (citing Butz, 438 U.S. at 512-13). Under this “functional approach,” we 

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look “at the nature of the function performed, not the identity or title of the 

actor who performed it.” Id. (citing Buckley v. Fitzsimmons, 509 U.S. 259, 268 

(1993)). The Supreme Court has

identified a nonexhaustive list of factors to determine whether 

[nonjudicial actors] perform[] “quasi-judicial” functions, and thus 

are entitled to absolute immunity: (1) the need to assure that the 

individual can perform his functions without harassment or 

intimidation; (2) the presence of safeguards that reduce the need 

for private damages actions as a means of controlling 

unconstitutional conduct; (3) insulation from political influence; 

(4) the importance of precedent; (5) the adversary nature of the 

process; and (6) the correctability of error on appeal. 

Id. (citing Butz, 438 U.S. at 511-13). “No one factor is controlling.” Id. 

Da Vinci argues that the district court properly denied the council 

members’ claim for absolute quasi-judicial immunity because “[i]n judicial 

proceedings, judges do not solicit opposition to, and evidence against, a party 

in the proceeding, as happened here.” As to the Butz factors, Da Vinci argues 

that there was “absolutely no insulation of the development plan process from 

political influence.” That influence was evidenced by the communications 

between the council members and members of the community. Further, there 

was evidence that the council members did not consider precedent to be of 

importance, as they ignored the fact that the council had approved a similar 

development plan for a car wash. Da Vinci also contends the process was not 

adversarial because, though parties for and against the plan were provided an 

opportunity to address the city council, nobody testified under oath and, with 

one exception, there was no cross-examination. 

The council members did not analyze the Butz factors in their initial 

brief. They acknowledge the factors in their reply brief but state they “are not 

absolute.” Instead, the council members contend that Texas law controls the 

question whether the council members were acting in a quasi-judicial capacity. 

They argue that under Texas law, a city’s consideration of whether a 

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subdivision plat complies with ordinances is a quasi-judicial matter. Thus, the 

denial of a development plan application is also quasi-judicial.

We disagree. The council members cite no binding or persuasive 

authority indicating that we should abandon our past consistent reliance on 

Butz and instead examine state law on quasi-judicial immunity.3 Under Butz, 

Da Vinci has pleaded sufficient facts to overcome the council members’ 

entitlement to absolute quasi-judicial immunity. First, because private 

communications occurred between city council members and citizens, the 

evidence-gathering and decision-making process was not judicial in nature. 

See Beck, 204 F.3d at 634. Second, several of the Butz factors weigh in Da

Vinci’s favor. As to the second factor, there is no indication that the significant 

safeguards that exist in judicial proceedings applied to the council meeting. 

The record reflects that opponents and supporters of the development 

registered to make presentations to the council, but that is not the equivalent 

of a judicial proceeding. No one has identified a provision in the City’s 

ordinances that gives procedural rights such as a right to counsel or to crossexamine witnesses to those seeking approval of a project. Regarding the third 

factor, it is evident from the facts of this case that council members are subject 

to political pressures. On the fourth factor, Da Vinci’s allegation that the city 

council previously approved a similar development plan supports the 

conclusion that precedent is not a controlling factor. As to the fifth factor, there 

were no allegations that, at the hearing, anyone was put under oath or that 

witnesses were called. We have held that a proceeding was adversarial where 

the “hearings were conducted by a presiding officer who administered oaths to 

witnesses and made evidentiary rulings.” Id. at 636. There certainly were 

 

3 For support of their contention that Texas law controls, the council members cite to 

cases from the Third Circuit and the District of Colorado. 

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advocates and opponents here, but they were not presenting sworn and 

competing testimony from which a fact-finder was required, at least 

technically, to make an objective decision. 

The district court properly denied the council members’ motion for 

judgment on the pleadings on the ground of absolute quasi-judicial immunity.

III. Qualified Immunity

The council members argue that qualified immunity protects them from 

liability against Da Vinci’s claims of a violation of substantive due process and 

of equal protection. “[A] plaintiff seeking to defeat qualified immunity must 

show: ‘(1) that the official violated a statutory or constitutional right, and (2) 

that the right was “clearly established” at the time of the challenged conduct.’” 

Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (quoting 

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)). 

A. Substantive Due Process Claim

The district court held that Da Vinci sufficiently pleaded a substantive 

due process violation. The court determined that Da Vinci asserted a valid 

property interest in having the development plan approved. Further, the 

complaint supported the conclusion that the council members violated clearly 

established law by arbitrarily denying Da Vinci’s property rights.

“To prevail on a substantive due process claim, [a plaintiff] must first 

establish that it held a constitutionally protected property right to which the 

Fourteenth Amendment’s due process protection applies.” Simi Inv. Co., v. 

Harris Cnty., 236 F.3d 240, 249-50 (5th Cir. 2000). “To have a property interest 

in a benefit,” a plaintiff must “have a legitimate claim of entitlement to it”; 

relevant entitlements are “created and their dimensions are defined by 

existing rules or understandings that stem from an independent source such 

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as state law.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005)

(citation and quotation marks omitted). If the benefit may be granted or denied 

at the discretion of government officials, it is not an entitlement. Id. Courts 

look for “‘explicitly mandatory language,’ i.e., specific directives to the 

decisionmaker that if the regulations’ substantive predicates are present, a 

particular outcome must follow.” Ridgely v. FEMA, 512 F.3d 727, 735-36 (5th 

Cir. 2008) (quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 463 (1989)). 

The substantive due process right Da Vinci claims it was denied is the 

right to use its land “in a lawful manner for a lawful purpose.” That is too 

broad a definition to be useful for our substantive due process analysis.4 Da

Vinci must show an entitlement under state or local law to approval of its 

development plan. In Ridgely, we held there was no property right in 

continued rent assistance because the pertinent statutes and regulations 

contained no mandatory language entitling the plaintiffs to the benefit. Id. at 

736. Instead, the statutes provided that “FEMA may provide continued 

housing assistance.” Id. (citation and quotation marks omitted). We held that 

“[b]ecause no ‘specific directives’ limit FEMA’s discretion by compelling it to 

provide assistance upon a showing of eligibility, these provisions do not give 

rise to a property interest.” Id. 

Here, if, under the ordinances, city council members could “grant or deny 

[a development plan application] in their discretion,” there was no entitlement 

 

4 Da Vinci argues that its property rights do not need to arise from a particular statute 

or ordinance. Instead, it argues that its property right arises generally from Texas law, citing 

a decision of this court in which we stated that “Texas law recognizes that the right of the 

owner of a property interest to use his property for a lawful purpose” is a “property right” for 

due process purposes. Shelton v. City of Coll. Station, 754 F.2d 1251, 1256-57 (5th Cir. 1985). 

After Shelton was reheard en banc, though, the full court effectively withdrew that definition 

of a protected property right for due process purposes. We ruled on other grounds, and said 

“we do not today undertake the task of defining the property right in question or deciding the 

related question of whether the state has deprived [the plaintiffs] of any property.” Shelton 

v. City of Coll. Station, 780 F.2d 475, 479 (5th Cir. 1986) (en banc). 

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to the benefit and, therefore, no protected property right. See Castle Rock, 545 

U.S. at 756. Da Vinci argues that the council members had no discretion to 

deny its development plan because it had met all the guidelines set forth in the 

ordinances. We find no such mandatory language. Neither in its pleadings 

nor its brief does Da Vinci cite any explicit language in the ordinances 

requiring, for example, the city council to grant a development plan application 

when all guidelines are met. While Da Vinci is correct that section 9-300(E)(9) 

of the ordinances states that “[n]othing listed [in the guidelines] shall limit the 

Council’s ability to require more restrictive standards necessary to protect the 

public’s health, safety and welfare,” that language does not require the council 

to approve a development plan application that meets all the guidelines.

Because there is no “explicitly mandatory language” in the ordinances 

requiring city officials to approve a development plan, even where a plan meets 

all required guidelines, the city council had discretion to grant or deny the 

benefit. Accordingly, Da Vinci did not have a protected property right in the 

approval of its development plan.5 

Without a protected property interest, there can be no substantive due 

process violation. See Simi Inv. Co., 236 F.3d at 249-50. Because no 

constitutional violation has been shown, we need not address the second prong 

 

5 Da Vinci also argues that “Texas courts have also held that, although the granting 

of permits is generally considered a privilege and not a right, if one meets the required 

criteria to obtain a permit, it may not be lawfully refused, thereby becoming a right.” With 

one exception, none of the Texas state cases cited by Da Vinci for support of this argument 

addresses protected property rights for due process purposes. The case that does address

constitutionally protected property rights supports our holding. In that decision, the court 

stated that “whether a property-holder possesses a legitimate claim of entitlement to a [landuse] permit or approval turns on whether, under state and municipal law, the local agency 

lacks all discretion to deny issuance of the permit or to withhold its approval.” Arbor Bend 

Villas Hous., L.P. v. Tarrant Cnty., Hous. Fin. Corp., No. 4:02-CV-478, 2005 WL 548104, at 

*18 (N.D. Tex Mar. 9, 2005) (quoting Gardner v. Baltimore Mayor and City Council, 969 F.2d 

63, 68 (4th Cir. 1992)).

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of qualified immunity. The council members are entitled to qualified immunity 

on Da Vinci’s substantive due process claim.

B. Equal Protection Claim

The district court held that Da Vinci pleaded sufficient facts to establish 

that the council members’ conduct violated Da Vinci’s “clearly established 

constitutional right to equal protection in application of these land-use 

regulations,” and the law was “clearly established . . . at the time of the 

challenged actions in this case.” 

The Supreme Court has recognized “successful equal protection claims 

brought by a ‘class of one,’ where the plaintiff alleges that she has been 

intentionally treated differently from others similarly situated and that there 

is no rational basis for the difference in treatment.” Village of Willowbrook v. 

Olech, 528 U.S. 562, 564 (2000) (citation omitted). 

Da Vinci argues the district court was correct as it sufficiently pleaded

that it was treated differently than other similarly situated landowners

without a rational basis. Da Vinci pleaded that it was treated differently than 

the “Cooper Project,” a development plan for a car wash facility that was 

approved by the city council less than two years before Da Vinci’s application. 

In light of this, Da Vinci argues, there was no rational basis for the council 

members to deny its development plan application. As to whether the right 

was clearly established, Da Vinci argues that, at the time of the alleged acts, 

“this court had clearly established that different treatment of similarly 

situated parties without a rational basis was a violation of equal protection 

rights.” 

The council members failed in their initial brief to make any argument 

on Da Vinci’s equal protection claim. They discuss the Cooper Project in their 

reply brief in the context of their absolute immunity claim, but “[a]rguments 

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raised by appellants for the first time in reply briefs are waived.” Warren v. 

Chesapeake Expl., L.L.C., 759 F.3d 413, 420 (5th Cir. 2014). 

We conclude Da Vinci’s well-pleaded facts, which we must accept as true, 

“state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 

(quoting Twombly, 550 U.S. at 570). Accordingly, the district court’s conclusion

that Da Vinci sufficiently pleaded its equal protection claim was proper. 

On the second part of the qualified immunity analysis, Da Vinci argues 

that the law surrounding the violation of equal protection rights under facts 

similar to those at hand is clearly established and cites several cases of this 

circuit. We agree with the district court that “[i]n the context of land-use 

decisions, a ‘class of one’ equal protection claim was clearly established . . . at 

the time of the challenged actions in this case.” See, e.g., Olech, 528 U.S. at 

564 (holding an equal protection claim sufficiently stated where the plaintiff 

alleged the municipality intentionally treated similarly situated property 

owners differently without a rational basis); Mikeska v. City of Galveston, 451 

F.3d 376, 381-82 (5th Cir. 2006) (reversing summary judgment for the 

defendant city on an equal protection claim involving a land use decision and 

noting that the plaintiff “must show that the difference in treatment with 

others similarly situated was irrational”); Bryan, 213 F.3d at 276 (noting that 

“[a]s a prerequisite to [an equal protection claim], the plaintiff must prove that 

similarly situated individuals were treated differently”).

Because Da Vinci has pleaded facts sufficient to overcome the council 

members’ qualified immunity defense on its equal protection claim, the district 

court’s denial of the council members’ motion for judgment on the pleadings on 

this claim is affirmed.

IV. Discovery Order

After denying the council members’ motion for judgment on the 

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pleadings, the district court ordered discovery “limited to . . . issues relating to 

Individual Defendants’ assertions of absolute, qualified, and official immunity 

in defense of the claims asserted against them[.]”6 It also ordered that 

“[s]ummary judgment motions based on immunity, if any,” were to be filed by 

a specific date. 

Once qualified immunity is raised as a defense, a district court generally 

should not permit discovery until the immunity issues have been addressed. 

“One of the most salient benefits of qualified immunity is protection from 

pretrial discovery, which is costly, time-consuming, and intrusive.” Backe v. 

LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). “If [a] complaint alleges facts to 

overcome the defense of qualified immunity, the district court may then 

proceed . . . to allow the discovery necessary to clarify those facts upon which 

the immunity defense turns.” Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 

995 (5th Cir. 1995). We see no reason to treat discovery questions differently 

when absolute immunity is claimed.

Here, the district court concluded that Da Vinci pleaded sufficient facts 

to overcome the council members’ entitlement to absolute and qualified 

immunity. It then ordered limited discovery to explore the factual basis for the 

claims of immunity. We have affirmed the district court’s holding that Da 

Vinci pleaded sufficient facts to overcome the council members’ entitlement to 

a dismissal based on absolute and qualified immunity on the equal protection 

claim. The council members do not assert that discovery would exceed the 

narrow focus appropriate for the immunity issues. Instead, they argue that 

any discovery will intrude into the integrity of the legislative process by 

examining their motives, knowledge, and the like. We reject that argument as 

 

6 The district court also ordered discovery on “issues relating to Plaintiff’s claims 

against the City of Arlington.”

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the decision in question was not a legislative one. Discovery relating to the 

council members’ assertions of immunity defenses on Da Vinci’s equal 

protection claim is proper. The council members are entitled to qualified 

immunity on Da Vinci’s substantive due process claim, though, and discovery 

that pertains to that claim was not properly ordered.

* * *

We AFFIRM the district court’s denial of the council members’ motion 

for judgment on the pleadings on Da Vinci’s equal protection claim. We 

REVERSE the district court’s denial of the council members’ motion for 

judgment on the pleadings on the substantive due process claim and hold that 

the council members are entitled to qualified immunity as to that claim. As to 

the discovery order, we AFFIRM to the extent discovery relates to the equal 

protection claim but REVERSE as to the substantive due process claim. 

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