U.S. Const. amend. XIV, § 1. Jacobs, 927 F.2d at 1115 (citing Curtis Ambulance, Inc. v. Bd. of Cnty. Comm'rs, 811 F.2d 1371, 1375 (10th Cir. 1987)). [a] property interest protected by the due process clause results from a legitimate claim of entitlement created and defined "by existing rules or understandings that stem from an independent source such as state law."
In order to state a claim for a due process violation, defendants, acting under color of state law, must have deprived plaintiffs of some "definite liberty or property interest . . . without appropriate process." Southern Disposal, Inc. v. Texas Waste Management, 161 F.3d 1259, 1265 (10th Cir. 1998) (quoting Curtis Ambulance v. Shawnee Rd. of County Comm'rs, 811 F.2d 1371, 1375 (10th Cir. 1987)). The Olathe and Flatt defendants move to dismiss plaintiffs' due process claims on the grounds that the allegations in plaintiffs' complaint, if proven, fail to establish any constitutionally protected property interest.
"The process requirement necessary to satisfy fourteenth amendment procedural due process comes into play only after plaintiff has shown that it has a property or liberty interest." Curtis Ambulance of Fla., Inc. v. Board of County Comm'rs, 811 F.2d 1371, 1375 (10th Cir. 1987). The plaintiffs' claim that they have stated a cognizable liberty interest is premised on their claims of defamation, failure to receive rent increases, defendants' inducing of plaintiffs' tenants to breach their lease agreements, restriction of availability of Section 8 housing at plaintiffs' property, arbitrary and capricious inspections by defendants to harass plaintiffs, and denial to plaintiffs of Section 8 Moderate Rehabilitation funds. All of these alleged actions except the last occurred outside of the two-year statute of limitations and therefore cannot be considered.
Thus, for this Court to determine whether TriHealth has a constitutionally protected property right, this Court must inquire whether Ohio law limits the County Defendants' discretion in choosing to whom to award a contract, and if so, whether TriHealth had a legitimate claim of entitlement to the contract. See Curtis Ambulance of Florida, Inc. v. Board of County Com'rs of the County of Shawnee, KS, 811 F.2d 1371, 1378 (10th Cir. 1987). Plaintiffs also cite Patuala Elec. Membership Corp. v. Whitworth, 951 F.2d 1238 (11th Cir. 1992) in support of their argument.
As with contract bidders, prequalified status does not guarantee aggregate sellers any sales of aggregate or acceptance at the project site. See S. Disposal, Inc. v. Tex. Waste Mgmt., 161 F.3d 1259, 1265 (10th Cir.1998) (“ ‘[A] disappointed bidder has no constitutionally protected property interest’ until it is actually awarded the contract.” (quoting Curtis Ambulance of Fla., Inc. v. Bd. of Cty. Comm'rs, 811 F.2d 1371, 1376–77 (10th Cir.1987))); see also Interior Contractors, 185 F.Supp.2d at 1225. By the same token, a potential supplier has no entitlement to sell its material.
Plaintiffs' claims were dismissed by the district court pursuant to Fed.R.Civ.P. 12(b)(6), and this court therefore "must take as true all well-pleaded allegations in the plaintiff's complaint." Curtis Ambulance of Fla., Inc. v. Bd. of County Comm'rs, 811 F.2d 1371, 1374 (10th Cir. 1987). Accordingly, the factual background in this case will be drawn from plaintiffs' second revised third amended complaint, which is the operative pleading here.
We also "must indulge all reasonable inferences in favor of the plaintiff." Curtis Ambulance of Fla., Inc. v. Bd. of County Comm'rs, 811 F.2d 1371, 1374 (10th Cir. 1987). In deciding a Rule 12(b)(6) motion, a federal court may only consider facts alleged within the complaint.
In order to state a claim for a due process violation, Defendants, acting under color of state law, must have deprived Southern Disposal of some "definite liberty or property interest . . . without appropriate process." See Curtis Ambulance v. Shawnee Bd. of County Comm'rs, 811 F.2d 1371, 1375 (10th Cir. 1987) (quoting Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972)). Appellant argues it holds a protected property interest in its contracts existing at the time of the bidding for the new exclusive contract. Valid contracts may constitute a property interest for purposes of due process.
To sustain their cause of action under section 1983, then, appellants must first allege a property interest sufficient to warrant due process protection. Curtis Ambulance, Inc. v. Board of County Comm'rs, 811 F.2d 1371, 1375 (10th Cir. 1987). A property interest protected by the due process clause results from a legitimate claim of entitlement created and defined "by existing rules or understandings that stem from an independent source such as state law."
The district court dismissed the pendent state law claims in this case. That decision cannot be overturned absent an abuse of discretion. Curtis Ambulance of Florida, Inc. v. Board of County Comm'rs, 811 F.2d 1371, 1386 (10th Cir. 1987). The plaintiffs appear to concede that the court properly exercised its discretion if the dismissal of the federal claims is affirmed by this court.