1Though Plaintiffs have cited section 151 as the appropriate cite

for the Telecommunications Act, the Court believes that § 251 is the

actual starting point for this legislation. See, e.g., E. Spire

Communications, Inc. v. Baca, 269 F.Supp.2d 1310, 1314 (D.N.M. 2003). 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DALLAS COUNTY, ALABAMA, : 

et al., : 

: 

Plaintiffs, : 

: 

v. : CIVIL ACTION 05-0350-M

: 

THE CITY OF SELMA, ALABAMA, : 

: 

Defendant. : 

MEMORANDUM OPINION AND ORDER

This action comes before the Court on Plaintiffs’ Motion for

Summary Judgment (Doc. 22) and Defendant’s Motion for Summary

Judgment (Doc. 35). Jurisdiction has been invoked in this Court

under 28 U.S.C. § 1331, pursuant to The Homeland Security Act of

2002, 6 U.S.C. § 101, The Telecommunications Act of 1996, 47

U.S.C. § 251,1 the Fourteenth Amendment, 28 U.S.C. § 1343(3) and

42 U.S.C. § 1983 (Doc. 21). The parties filed written consent

and this action has been referred to the undersigned Magistrate

Judge to conduct all proceedings and order the entry of judgment

in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see

Doc. 17). After consideration, Defendant’s The City of Selma,

Alabama Motion for Summary Judgment is GRANTED to the extent that

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 1 of 24
2The Court will use Dallas in this Opinion to represent all

Plaintiffs unless otherwise specifically stated.

2

it seeks the dismissal of this action on the ground that this

Court lacks jurisdiction to hear it; Defendant’s Motion is DENIED

as to any other assertion made (Doc. 35). The Motion for Summary

Judgment filed by Plaintiffs Dallas County, Alabama, Harris

Huffman, Dallas County Communications District, Llewellyn R.

Rollins, and Carl G. Allen is DENIED in its entirety (Doc. 22).

The facts, very briefly, are as follows. Plaintiff Dallas

County, Alabama (hereinafter Dallas)2

 is a corporate and

political body which brought this action by its elected governing

body, the Dallas County Commission (Doc. 22, ¶ 3; see also Doc.

47, ¶ 3). Plaintiff Harris Huffman is a citizen and the Sheriff

of Dallas County, Alabama (Doc. 22, Exhibit 4 [Huffman Aff.]., ¶

1). Plaintiff Dallas County Communications District is a

corporate body organized pursuant to the provisions of Ala. Code

§§ 11-98-1 to -2 (2005) (Doc. 22, ¶ 3; see also Doc. 47, ¶ 3). 

Plaintiffs Llewellyn R. Rollins and Carl G. Allen are residents

of Dallas County, Alabama, suing as individuals (Doc. 32, Exhibit

5 [Rollins Aff.], ¶ 2 and Exhibit 6 [Allen Aff.], ¶ 1). 

Defendant City of Selma (hereinafter Selma) is a municipality

organized under Alabama statutes (Doc. 22, ¶ 4; see also Doc. 47,

¶ 4). 

In 2002, Congress passed The Homeland Security Act of 2002

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 2 of 24
3

which established the U.S. Department of Homeland Security and

authorized the Secretary of that Department to coordinate with

State and local government personnel to establish better

communication networks in providing for a more secure homeland

(Doc. 22, ¶ 5; see also Doc. 47, ¶ 5). 6 U.S.C. §§ 111, 112. In

2004, Congress established the Office for Interoperability and

Compatibility and authorized it to establish federal grants to

enhance public safety communications at all levels of government

(Doc. 22, ¶ 6; see also Doc. 47, ¶ 6). 6 U.S.C. § 194. 

The Alabama Legislature enacted the Alabama Homeland

Security Act of 2003 which created the State Department of

Homeland Security (hereinafter SDHS) for the purpose, inter alia,

of receiving, distributing, and monitoring funds from any source

for activities related to homeland security (Doc. 22, ¶ 7; see

also Doc. 22, ¶ 7). Ala. Code § 31-9A-1 to -16. Brett H.

Howard, Director of the Dallas County Department of Homeland

Security and Emergency Management and member of the Dallas County

E-911 Board, is the designated “point of contact” (hereinafter

POC) between Dallas County and the SDHS (Doc. 22, Exhibit 2

[Howard Aff.], ¶ 2). Howard applied to SDHS for federal grant

funds to acquire “bridging” equipment and a communications tower

to be installed at the E-911 Center, located at 311 Dallas Avenue

in Selma (id. ¶¶ 5-6), where “all law enforcement, fire and

emergency communications for both the City of Selma and Dallas

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 3 of 24
3On March 25, 2003, a “Historic Ordinance” took effect in Selma

which prohibited the erection of any structure within a historic

district without prior approval by the Selma Historic Development

Commission; the Ordinance stated that this requirement applied “to all

actions by public authorities which involve historic properties []

within historic districts” (Doc. 21, Exhibit 5 [Historic Ordinance],

¶¶ 12, 18).

4

County are handled” (Doc. 22, ¶ 7; see also Doc. 47, ¶ 7). In

February 2005, the SDHS allocated $75,000 to construct a

communications tower (Doc. 22, Exhibit 2, ¶ 8 and Attachment C);

the “Assistance Allocation Letter of Agreement” does not state a

specific tower location though earlier correspondence from the

SDHS to Howard stated that “it [was] essential for the

communications tower [to] be located in close proximity of the 9-

1-1 Center” (Doc. 22, Exhibit 2, Attachment A; cf. Attachment C).

Following the grant announcement, Selma’s Mayor expressed

disfavor with the proposed tower location and suggested that it

be placed at the Selma Police Department (Doc. 22, ¶ 9; see also

Doc. 22, ¶ 9). On May 16, 2005, the Selma City Council adopted

Resolution 163-04/05 which opposed the proposed tower location at

the E-911 Center as being in violation of municipal laws because

that building was in a Historic District;3 the Resolution further

expressed its preference for locating the tower at the Selma

Police Department (id.; Doc. 22, Exhibit 2, Attachment E). 

On June 13, 2005, Plaintiffs brought this action, seeking a

declaratory judgment on ten issues related to the construction of

the tower as well as injunctive and equitable relief (Doc. 1). 

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 4 of 24
5

Plaintiffs amended their complaint on August 9, 2005 to include

two individual claimants, Allen and Rollins, and a claim on their

behalf under 42 U.S.C. § 1983 (Doc. 21). Simultaneous to filing

the Amended Complaint, Plaintiffs filed a Motion for Summary

Judgment (Doc. 22). Defendant filed its own Motion for Summary

Judgment and Response to Plaintiff’s Motion (Docs. 35-36). 

Plaintiffs then filed a Response/Reply (Doc. 39) to which

Defendant has filed a Reply (Doc. 42).

The Rules of Civil Procedure, in discussing summary

judgment, state that 

an adverse party [to a motion for summary

judgment] may not rest upon the mere

allegations or denials of the adverse party's

pleading, but the adverse party's response,

by affidavits or as otherwise provided in

this rule, must set forth specific facts

showing that there is a genuine issue for

trial. If the adverse party does not so

respond, summary judgment, if appropriate,

shall be entered against the adverse party. 

Fed.R.Civ.P. 56(e); see also Celotex Corporation v. Catrett, 477

U.S. 317, 325-27 (1986). The Court further bears in mind, with

regard to the motions for summary judgment, that "there is no

issue for trial unless there is sufficient evidence favoring the

non-moving party for a jury to return a verdict for that party. 

If the evidence is merely colorable or is not significantly

probative, summary judgment may be granted." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). 

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 5 of 24
6

Summary judgment may be granted against a party who fails to

establish the existence of an element essential to that party's

case and on which that party will bear the burden of proof at

trial. Id.

The first issue to be decided is whether this Court has

jurisdiction over this matter. Plaintiff has asserted that the

subject matter of this action directly relates to federal law. 

Selma argues that it does not. 

The U.S. Supreme Court “has repeatedly held that, in order

for a claim to arise 'under the Constitution, laws, or treaties

of the United States,' 'a right or immunity created by the

Constitution or laws of the United States must be an element, and

an essential one, of the plaintiff's cause of action.'” Phillips

Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127 (U.S. 1974)

(quoting Gully v. First National Bank in Meridian, 299 U.S. 109,

112 (1936)). The Eleventh Circuit Court of Appeals has stated

that

[a] case arises under federal law if rights

claimed by one party may be defeated by one

construction of the statute and sustained by

opposite construction, Gully v. First

National Bank of Meridian, supra, 299 U.S.

[109,] 112 []. Construction of a statute so

as to sustain federal jurisdiction does not

mean that the "case will necessarily turn

upon an interpretation of the statute, but

simply that the complaint must set forth a

cause of action of which federal law is an

essential ingredient, and which may,

therefore, properly involve a construction of

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 6 of 24
4The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent

decisions of the former Fifth Circuit rendered prior to October 1,

1981.

7

that law." 

Hines v. Cenla Community Action Committee, Inc., 474 F.2d 1052,

1056 (11th Cir. 1973)4 (quoting McGoon v. Northern Pacific Railway

Co., 204 F. 998, 1001 (D.C.N.D. 1913)). The Hines Court went on

to state that “when a controversy between the parties may be

decided under local law without the necessity of interpreting a

federal statute, there is no federal jurisdiction.” Hines, 474

F.2d at 1056 (citing Cabana Management, Inc. v. Hyatt Corp., 441

F.2d 862, 864 (5th Cir. 1971)). 

The first asserted basis of jurisdiction is The Homeland

Security Act of 2002 (hereinafter HSA), codified at 6 U.S.C. §

101, and the amendments thereto in the Intelligence Reform and

Terrorism Prevention Act of 2004 (hereinafter IRTPA) (Pub.L. 108-

458), codified at 50 U.S.C. § 401 (Doc. 22, pp. 3-4, ¶¶ 5-6). 

The Court notes at the outset that Dallas has not pointed to a

specific provision of the Act which gives rise to a private cause

of action. 

The only provision which this Court found that gave rise to

a cause of action was in HSA § 863 which provided “a Federal

cause of action for claims arising out of, relating to, or

resulting from an act of terrorism when qualified anti-terrorism

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 7 of 24
8

technologies have been deployed in defense against or response or

recovery from such act and such claims result or may result in

loss to the Seller.” 6 U.S.C. § 442(a). This section is plainly

not applicable here. Likewise, this Court’s search has revealed

no case finding such a right. 

Plaintiff has specifically referenced certain sections of

HSA and IRTPA in asserting jurisdiction (Doc. 21, pp. 3-4; ¶¶ 5-

6); this is where the Court will begin. It is noted at the

outset that the HSA established the Department of Homeland

Security which was given the mission, inter alia, to prevent

terrorist attacks and reduce the vulnerability of the U.S. to

terrorism. 6 U.S.C. § 111. The Department Secretary was ordered

to coordinate with State and local government personnel in

consolidating “the Federal Government’s communications and

systems of communications relating to homeland security.” 6

U.S.C. 112(c)(2). In the IRTPA, Congress granted the Secretary

the authority to “establish an Office for Interoperability and

Compatibility” to develop “appropriate minimum capabilities for

communications interoperability for Federal, State, and local

public safety agencies.” 6 U.S.C. § 194(a)(1)(C) and (a)(2)(A). 

Appropriations were made to enable the Secretary to perform that

task as well as the authority to award “grants to any State,

region, local government, or Indian tribe for the purpose of

enhancing interoperable communication capabilities for emergency

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 8 of 24
5Cort has been overruled according to Justice Scalia, in Thompson

v. Thompson, 484 U.S. 174, 189 (1988), in a concurring opinion: “It

could not be plainer that we effectively overruled the Cort v. Ash

analysis in Touche Ross & Co. v. Redington, 442 U.S. 560, 575-576, 99

S.Ct. 2479, 2488-2489, 61 L.Ed.2d 82 (1979), and Transamerica Mortgage

Advisors, Inc. v. Lewis, 444 U.S. 11, 18, 100 S.Ct. 242, 246, 62

L.Ed.2d 146 (1979), converting one of its four factors (congressional

intent) into the determinative factor, with the other three merely

indicative of its presence or absence.” 

This Court, nevertheless, will use Cort as a guideline for

examination though understanding that congressional intent is the

single determinative factor.

9

response providers.” 6 U.S.C. § 194(a)(3) and (e)(1). This

grant program was enacted because Congress found that “many first

responders working in the same jurisdiction . . . [could] not

effectively and efficiently communicate with one another” which

“threaten[ed] the public’s safety and may result in unnecessary

loss of lives and property.” 6 U.S.C. § 194(i)(1)(A and B). 

Since this is apparently a case of first impression, the

Court will look to the U.S. Supreme Court for guidance “[i]n

determining whether a private remedy is implicit in a statute not

expressly providing one.” Cort v. Ash, 422 U.S. 66, 78 (1975).5

The Cort Court stated that courts should look at the following

factors:

First, is the plaintiff “one of the class for

whose especial benefit the statute was

enacted”–that is, does the statute create a

federal right in favor of the plaintiff? 

Second, is there any indication of

legislative intent, explicit or implicit,

either to create such a remedy or to deny

one? Third, is it consistent with the

underlying purposes of the legislative scheme

to imply such a remedy for the plaintiff? 

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 9 of 24
10

And finally, is the cause of action one

traditionally relegated to state law, in an

area basically the concern of the States, so

that it would be inappropriate to infer a

cause of action based solely on federal law?

Cort, 422 U.S. at 78 (citations omitted). 

As the Court has found no explicit cause of action in its

reading of the HSA, the Court will focus on the implicit language

of § 194. The first Cort factor to consider is whether Plaintiff

is “‘one of the class for whose especial benefit the statute was

enacted’–that is, does the statute create a federal right in

favor of the plaintiff?” The Court notes the text of § 194 names

no particular class of people who are to benefit from this

legislation. Rather, the Court’s reading of the statute is that

it would benefit all of this Country’s residents because better

communications would exist throughout for all. Although § 194

provides Plaintiff Dallas County Communications District with the

opportunity to avail itself of the grants made available in

subsection (e), this Court finds no hint of a cause of action

within the language of the statute. The Court finds that no

federal right has been created in favor of any of the Plaintiffs

on the basis of the first factor.

The second Cort factor to consider is whether there is “any

indication of legislative intent, explicit or implicit, either to

create such a remedy or to deny one?” Plaintiffs have pointed to

nothing more than the statute itself; this Court, independently,

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 10 of 24
11

has failed to find an indication that Congress intended to create

a remedy in Plaintiffs. The Court notes that this factor,

according to Justice Scalia in Thompson, is the determinative

one. Thompson, 484 U.S. at 189.

The third Cort factor is a determination as to whether it is

“consistent with the underlying purposes of the legislative

scheme to imply such a remedy for the plaintiff?” After having

read large portions of the Homeland Security Act of 2002 and the

Intelligence Reform and Terrorism Prevention Act of 2004, this

Court must answer this question in the negative. While those

Acts were substantial in terms of creating a new executive

department which would be responsible for making the United

States more secure, including the establishment of better

communications networks for disseminating information, this Court

finds that the overall import of the legislation was not to

establish a new federal right. 

The final Cort factor is whether “the cause of action [is]

one traditionally relegated to state law, in an area basically

the concern of the States, so that it would be inappropriate to

infer a cause of action based solely on federal law?” The Court

understands the essence of this dispute, when stripped to its

most basic form, to be two local, political entities who cannot

agree where to put a communications tower. The federal

government, other than making the communications tower a

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 11 of 24
6The Court notes that “[i]n legislation enacted pursuant to the

spending power, the typical remedy for state noncompliance with

federally imposed conditions is not a private cause of action for

noncompliance but rather action by the Federal Government to terminate

funds to the State.” Pennhurst State School and Hospital v.

Halderman, 451 U.S. 1, 28 (1981) (no substantive rights created in the

“bill of rights” provision of the Developmentally Disabled Assistance

and Bill of Rights Act). 

7On September 10, 2001, the Selma City Council adopted “A Local

Ordinance Regulating the Siting of Wireless Telecommunications

Facilities” (hereinafter Tower Ordinance) (Doc. 21, Exhibit 6). The

Tower Ordinance references—but does not cite—the Telecommunications

Act of 1996 in its opening sentence and concludes by saying that it

“is enacted pursuant to applicable authority granted by the State and

federal government” (id. §§ 1, 34). 

12

possibility, has no real interest in the dispute.6

After review of all of the Cort factors, the Court concludes

that The Homeland Security Act of 2002 does not establish a

private cause of action to Plaintiffs. The Court expressly finds

that Plaintiffs have failed to demonstrate a congressional intent

to establish a private cause of action in this legislation or in

the amendments thereto. Therefore, this Court does not have

jurisdiction pursuant to that Act.

The second asserted basis of jurisdiction is The

Telecommunications Act of 1996, codified at 47 U.S.C. § 251. 

Plaintiffs referenced this Act, noting that Selma had passed an

ordinance which was “adopted in accordance with provisions of the

Telecommunications Act of 1996" (Doc. 22 Brief, p. 14 n.1).7

Dallas argues that because Selma asserts that it has control over

tower placement which impacts communications under the Homeland

Security Act, there is “obvious existence of a federal question

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 12 of 24
8Section 253, entitled “Removal of Barriers to Entry,” states as

follows: 

(a) No State or local statute or regulation, or

other State or local legal requirement, may

prohibit or have the effect of prohibiting the

ability of any entity to provide any interstate

or intrastate telecommunications service.

(b) Nothing in this section shall affect the

ability of a State to impose, on a competitively

neutral basis and consistent with section 254 of

this title, requirements necessary to preserve

and advance universal service, protect the public

safety and welfare, ensure the continued quality

of telecommunications services, and safeguard the

rights of consumers.

13

involving whether the Telecommunications Act was intended by

Congress to enable local government to block Congressional intent

as expressed under the Homeland Security Act and to prevent the

implementation of interoperable communications as provided under

the Homeland Security Act” (id.). Again, however, the Court

notes that Dallas has failed to point to a specific provision of

the Act giving rise to a private cause of action. 

The Court’s search came across Bellsouth Telecommunications,

Inc. v. Town of Palm Beach, 252 F.3d 1169, 1175 (11th Cir. 2001),

which discussed the Telecommunications Act and noted that its

purpose was “to promote competition and reduce regulation in

order to secure lower prices and higher quality services for

American telecommunications consumers and encourage the rapid

deployment of new telecommunications technologies.” Id., citing

110 Stat. at 56. The Bellsouth Court discussed a provision of

that Act, codified at 47 U.S.C. § 253,8 and specifically held the

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 13 of 24
(c) Nothing in this section affects the authority

of a State or local government to manage the

public rights-of-way or to require fair and

reasonable compensation from telecommunications

providers, on a competitively neutral and

nondiscriminatory basis, for use of public

rights-of-way on a nondiscriminatory basis, if

the compensation required is publicly disclosed

by such government.

(d) If, after notice and an opportunity for

public comment, the Commission determines that a

State or local government has permitted or

imposed any statute, regulation, or legal

requirement that violates subsection (a) or (b)

of this section, the Commission shall preempt the

enforcement of such statute, regulation, or legal

requirement to the extent necessary to correct

such violation or inconsistency.

47 U.S.C.A. § 253.

9The Court notes that § 253 seems to be the most appropriate

section of the Act to be considered.

14

following: 

[A] private cause of action in federal

district court exists under § 253 to seek

preemption of a state or local statute,

ordinance, or other regulation only when that

statute, ordinance, or regulation purports to

address the management of the public rightof-way, thereby potentially implicating

subsection (c). All other challenges brought

under § 253 must be addressed to the FCC.” 

Bellsouth, 252 F.3d at 1191. This Court does not understand

subsection (c) to be pertinent to the claims raised in this

action; to the extent that any of the balance of the statute9 is

applicable to the claims raised herein, Plaintiffs must seek

their remedy before the Federal Communications Commission as

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 14 of 24
10"This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof; and all Treaties made, or which

shall be made, under the Authority of the United States, shall be the

supreme Law of the Land; and Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding." U.S. Const. art. VI, cl. 2.

15

there is no basis for jurisdiction in this Court.

Plaintiff has also asserted that Selma’s Resolution 163-

04/05 is “an affront to the Supremacy Clause” of the U.S.

Constitution10 because it “effectively blocked the construction

of the communications tower” (Doc. 22 Brief, pp. 15-16). Dallas

further points to constitutional language which states that

Congress has the power to, among other things, “provide for the

common Defence and general Welfare of the United States”. U.S.

Const. art. I, ¶ 8, cl. 1. Though not clearly expressed, it

appears that Plaintiff seeks preemption of the resolution, as

well as the Historic and Tower Ordinances, by the HSA. Under the

Supremacy Clause, federal law controls local or State law. 

Bosarge v. U.S. Dept. of Education, 5 F.3d 1414, 1419 (11th Cir.

1993). 

The Court has reviewed the Resolution and the two ordinances

and finds that Plaintiff has not demonstrated a need to invoke

the Supremacy Clause. Specifically, while Selma has passed laws,

as a normal, functioning municipality does, which regulate

commerce and zoning, these ordinances provide only a speed

bump—as opposed to a roadblock—in the placement of this

communications tower. The Court reads nothing in either

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 15 of 24
11The Court acknowledges that this is a less-than-thorough

explanation of this particular claim, but finds, nevertheless, that it

suffices for purposes of this Order.

16

ordinance which prohibits the communications tower; they merely

provide a process for its placement. Dallas, however, has

candidly admitted that it has not availed itself of that process,

asserting that such applications would be futile (Doc. 22 Brief,

p. 18). The Court finds Plaintiff’s argument non-persuasive.

Finally, Plaintiffs Allen and Rollins have brought claims

under 42 U.S.C. § 1983 and the Fourteenth Amendment. More

specifically, Plaintiffs asserted “that they are being denied the

constitutional rights to due process and equal protection of the

law in that they are particularly affected and aggrieved as

citizens of Dallas County, Alabama, who reside within an area of

Dallas County serviced by volunteer fire departments” (Doc. 22

Brief, p. 17). Because the volunteer fire departments must

communicate with existing UHF antennas, there are occasions where

there is no communication because of atmospheric conditions.11

Section 1983 states as follows: 

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of

Columbia, subjects, or causes to be

subjected, any citizen of the United States

or other person within the jurisdiction

thereof to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 16 of 24
17

equity, or other proper proceeding for

redress.

42 U.S.C. § 1983 (1994). 

The Court notes initially that Selma “'may only be held

liable under Section 1983 if action pursuant to official . . .

policy of some nature caused a constitutional tort.'" Campbell

v. Rainbow City, Ala., 434 F.3d 1306, 1312 (11th Cir. 2006)

(quoting Matthews v. Columbia County, 294 F.3d 1294, 1297 (11th

Cir. 2002) (per curiam) (quoting Church v. City of Huntsville, 30

F.3d 1332, 1342 (11th Cir.1994))). It is further noted that

“only municipal officers or groups who have final policymaking

authority may subject the municipality to § 1983 liability.” Id.

“‘[T]o seek redress through § 1983, . . . a plaintiff must

assert the violation of a federal right, not merely a violation

of federal law.” Gonzaga University v. Doe, 536 U.S. 273, 282

(2002) (quoting Blessing v. Freestone, 520 U.S. 329, 340 (1997)

(emphasis in Blessing)). “Section 1983 provides a remedy only

for the deprivation of ‘rights, privileges, or immunities secured

by the Constitution and laws’ of the United States. Accordingly,

it is rights, not the broader or vaguer ‘benefits’ or

‘interests,’ that may be enforced under the authority of that

section.” Gonzaga, 536 U.S. at 283 (quoting § 1983). 

The Gonzaga Court went on to explain what Courts should look

for in determining whether § 1983 was an appropriate vehicle for

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 17 of 24
12The State may rebut this presumption by showing that Congress

"specifically foreclosed a remedy under § 1983." The State's burden

is to demonstrate that Congress shut the door to private enforcement

either expressly, through "specific evidence from the statute 

itself, or "impliedly, by creating a comprehensive enforcement scheme

that is incompatible with individual enforcement under § 1983." 

Gonzaga, 536 U.S. at 284 n.4.

18

enforcing federal law. The lengthy—though thorough—analysis is

as follows: 

We have recognized that whether a

statutory violation may be enforced through §

1983 "is a different inquiry than that

involved in determining whether a private

right of action can be implied from a

particular statute." But the inquiries

overlap in one meaningful respect–in either

case we must first determine whether Congress

intended to create a federal right. Thus we

have held that "[t]he question whether

Congress . . . intended to create a private

right of action [is] definitively answered in

the negative" where a "statute by its terms

grants no private rights to any identifiable

class." For a statute to create such private

rights, its text must be "phrased in terms of

the persons benefited” [sic]. . . . But even

where a statute is phrased in such explicit

rights-creating terms, a plaintiff suing

under an implied right of action still must

show that the statute manifests an intent "to

create not just a private right but also a

private remedy."

Plaintiffs suing under § 1983 do not

have the burden of showing an intent to

create a private remedy because § 1983

generally supplies a remedy for the

vindication of rights secured by federal

statutes. Once a plaintiff demonstrates that

a statute confers an individual right, the

right is presumptively enforceable by §

1983.12 But the initial inquiry–determining

whether a statute confers any right at all–is

no different from the initial inquiry in an

implied right of action case, the express

Case 2:05-cv-00350-M Document 59 Filed 02/24/06 Page 18 of 24
19

purpose of which is to determine whether or

not a statute "confer[s] rights on a

particular class of persons." This makes

obvious sense, since § 1983 merely provides a

mechanism for enforcing individual rights

"secured" elsewhere, i.e., rights

independently "secured by the Constitution

and laws" of the United States. "[O]ne cannot

go into court and claim a 'violation of §

1983'–for § 1983 by itself does not protect

anyone against anything."

A court's role in discerning whether

personal rights exist in the § 1983 context

should therefore not differ from its role in

discerning whether personal rights exist in

the implied right of action context. Both

inquiries simply require a determination as

to whether or not Congress intended to confer

individual rights upon a class of

beneficiaries. Accordingly, where the text

and structure of a statute provide no

indication that Congress intends to create

new individual rights, there is no basis for

a private suit, whether under § 1983 or under

an implied right of action.

Gonzaga, 536 U.S. at 283-286.

The Court has already determined that the Homeland Security

Act of 2002, the Intelligence Reform and Terrorism Prevention Act

of 2004, and the Telecommunications Act of 1996 all fail to

create a private cause of action on the set of facts presented by

Plaintiffs. Likewise, the Court finds nothing in those

statutes—and Plaintiffs have failed to demonstrate otherwise—that

indicate that Congress intended to create individual rights

through those statutes. As such, § 1983 offers no cause of

action on the basis of these three statutes.

As noted earlier, though, Plaintiffs Allen and Rollins bring

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this § 1983 claim pursuant to the Due Process and Equal

Protection clauses of the Fourteenth Amendment. The pertinent

language is as follows:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.

U.S. Const. Amend XIV, § 1. 

The Court notes that “[a]s a preliminary consideration,

federal courts should be disinclined to ‘sit as a zoning board of

review,’ and as a ‘general rule,’ zoning decisions ‘will not

usually be found by a federal court to implicate constitutional

guarantees.’" Campbell, 434 F.3d at 1313 (quoting Greenbriar

Village, L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1262

(11th Cir. 2003) (per curiam)). To be successful in their

argument, “Plaintiffs must show (1) that they were treated

differently from other similarly situated individuals, and (2)

that Defendant unequally applied a facially neutral ordinance for

the purpose of discriminating against Plaintiffs.” Campbell, 434

F.3d at 1314. 

Plaintiffs Allen and Rollins have asserted that if the

communications tower does not go to the 911 Center, they—along

with other citizens—face the possibility of a failure of

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13Plaintiffs cited Northeastern Florida Chapter of the Associated

General Contractors of America v. City of Jacksonville, Florida, 508

U.S. 656 (1993) as support for their claim (Doc. 39, p. 12). In

Northeastern, an association of general contractors sued the city on

the basis of the Equal Protection Clause, challenging an ordinance

which gave preferential treatment to minority-owned businesses in city

construction contracts. Northeastern, 508 U.S. 656. 

The Court finds, however, that Northeastern is not instructive as

the facts of this action do not contemplate discrimination on the

basis of race. Though Plaintiffs assert that a barrier has been

placed before them here, as in Northeastern, this Court finds the

similarity to end there.

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communications during an emergency. The Court has reviewed the

two ordinances, however, and finds them rationally related to

what municipalities do. The Court further finds that the

ordinances have not been “applied” in a discriminatory manner; as

noted earlier, the ordinances were passed prior to—and from all

appearances, not in anticipation of—the factual situation

presented herein. 

The Court finds that Plaintiffs’ assertions, accepted as

true, demonstrate, at most, de facto discrimination in that city

residents fare better than county residents with regard to

emergency communications. The Court, however, does not find that

this amounts to de jure discrimination. Plaintiffs have not

demonstrated that they have been discriminated against on the

basis of their race,13 alienage, or ancestry which would require

stricter scrutiny; it is not an issue of sexual discrimination

which would require intermediate scrutiny. Likewise, Plaintiffs

have failed to show this Court that their interest in this matter

is a recognized fundamental interest requiring stricter scrutiny

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14The Court acknowledges that these specific findings are general

in nature and cite no specific case law for their conclusions. The

Court has, however, relied, in large measure on one treatise on the

subject, finding it most beneficial in gaining a better understanding

of this difficult constitutional protection. See Chester James

Antieau & William J. Rich, Modern Constitutional Law §§ 25.00 - 25.05

(2d ed. 1997 & Supp. 2006). The Court notes that no party contributed

much to this discussion.

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of the municipal ordinances.14 The Court finds that Plaintiffs

Allen and Rollins have failed to state an Equal Protection claim

in this action as the Ordinances they challenge are rationally

related to the task of a municipality.

Plaintiffs Allen and Rollins have also claimed that they

were deprived of due process. More specifically, they assert

that being deprived of interoperable communications “may result

in the unnecessary loss of their lives and property” (Doc. 21, ¶

28). In their brief supporting the Motion for Summary Judgment,

Plaintiffs set out a factual predicate for their argument, but

fail to point to any cases demonstrating the basis of their

assertions (Doc. 22 Brief, pp. 17-18). Likewise, the Conclusions

of Law set out by Plaintiffs in their Statement of Undisputed

Facts and Determinations of Law fail to inform this Court of the

basis for their Due Process Clause assertion (Doc. 22, Facts/Law

¶¶ 38-56).

In Plaintiffs’ Response/Reply, Allen and Rollins have

pointed to a single case as support for their claim (Doc. 39, p.

10). In Gomez v. Florida State Employment Services, 417 F.2d 569

(5th Cir. 1969), migratory farm workers were found to have

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standing to seek remedies for deprivations of certain wages and

conditions of employment as guaranteed by the Wagner-Peyser

National Employment System Act. In that action, though, standing

was found on the basis of the Wagner-Peyser Act with no remedy

provided on the basis of the Fourteenth Amendment. As this Court

has already found that the Homeland Security Act, the

Intelligence Reform and Terrorism Prevention Act of 2004, and the

Telecommunications Act of 1996 all fail to create a private cause

of action, the Court finds no further instruction in Gomez. The

Court finds that Plaintiffs Allen and Rollins have failed to

demonstrate that this Court has jurisdiction under the Due

Process Clause.

In conclusion, Plaintiffs have failed to convince this Court

that it has jurisdiction over any of the claims asserted in this

action. The Court has explored each particular claim and found

it wanting. The Court finds that this matter is, essentially, a

local matter which should be resolved through principles of State

law. The facts of this action do not give rise to federal

jurisdiction.

Therefore, Defendant’s The City of Selma, Alabama Motion for

Summary Judgment is GRANTED to the extent that it seeks the

dismissal of this action on the ground that this Court lacks

jurisdiction to hear it; since this Court lacks jurisdiction,

Defendant’s Motion is DENIED as to any other assertion made (Doc.

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24

35). For the same reason, namely, the lack of jurisdiction, the

Motion for Summary Judgment filed by Plaintiffs Dallas County,

Alabama, Harris Huffman, Dallas County Communications District,

Llewellyn R. Rollins, and Carl G. Allen is DENIED in its entirety

(Doc. 22).

DONE this 24th day of February, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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