LUNSFORD v. CITY OF BOWMAN et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
AUBREY LUNSFORD,
Plaintiff,
vs.
CITY OF BOWMAN, et al.,
Defendants.
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CASE NO. 3:25-CV-21 (CDL)
O R D E R
The Court previously dismissed Aubrey Lunsford’s claims that
arose from the City of Bowman’s decision to deny him permission to
build 	twelve 	commercial 	poultry 	houses 	within 	the 	city 	limits.
Lunsford v. City of Bowman, No. 3:25-CV-21 (CDL), 2025 WL 2394884,
(M.D. 	Ga. 	Aug. 	18, 	2025). 	In 	their 	prior 	motion 	to 	dismiss,
Defendants 	did 	not 	explicitly 	seek 	dismissal 	of 	Lunsford’s
42 U.S.C. 	§ 	1983 	procedural 	due 	process 	claims 	based 	on 	(1) 	the
City’s 	withholding 	of 	occupancy 	and 	completion 	certificates 	for
Lunsford’s storage building or (2) the City’s refusal to build gas
mains 	on 	Lunsford’s 	property. 	The 	Court 	permitted 	the 	City 	to
file 	a 	second 	motion 	to 	dismiss, 	which 	is 	now 	pending 	before 	the
Court. 	As explained below, the second motion to dismiss (ECF No.
14) is granted. 	Also pending before the Court is Lunsford’s motion
for leave to amend (ECF No. 17), which is denied.
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I. 	The City’s Second Motion to Dismiss (ECF No. 14)
A. 	Factual Allegations
For 	purposes 	of 	the 	present 	order, 	the 	following 	factual
allegations are relevant. 	The Court accepts these allegations as
true and must determine whether they contain enough factual matter
to state a plausible claim for relief. 	See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
In 2022, Lunsford applied for and obtained a conditional use
permit to construct a storage building on his property in the City.
Compl. 	¶¶ 46-47, 	ECF 	No. 	1. 	At 	some 	point 	before 	he 	filed 	this
action 	in 	February 	2025, 	Lunsford 	completed 	construction 	of 	the
storage 	building. 	Id. 	¶ 101. 	Lunsford 	alleges 	that 	after 	he
completed 	the 	storage 	building, 	the 	City 	“refused 	to 	issue
certificates 	of 	completion 	or 	occupancy 	. . . 	by 	making 	one
baseless 	excuse 	after 	another.” 	Id. 	¶ 	107. 	He 	further 	asserts
that 	“the 	City 	has 	refused 	and 	continually 	refuses 	to 	issue
certificates 	of 	occupancy 	and 	completion” 	for 	the 	storage
building. 	Id. ¶ 171. 	Lunsford argues that the City’s refusal to
issue the certificates is a violation of his due process rights.
In 2023, Lunsford and the City entered a natural gas agreement
under 	which 	the 	City 	agreed 	to 	install 	natural 	gas 	mains 	on
Lunsford’s property. 	Id. ¶¶ 75-79. 	The City, though, refuses to
build 	the 	gas 	mains, 	and 	Lunsford 	asserted 	in 	his 	complaint 	that
this refusal violated his due process rights. 	Id. ¶ 170.
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B. 	Analysis
To 	survive 	a 	motion 	to 	dismiss 	his 	procedural 	due 	process
claims, Lunsford must allege facts to show (1) a deprivation of a
constitutionally 	protected 	property 	interest, 	(2) 	state 	action,
and 	(3) 	constitutionally 	inadequate 	process. 	Foxy 	Lady, 	Inc. 	v.
City of Atlanta, 347 F.3d 1232, 1236 (11th Cir. 2003) (per curiam).
Lunsford does not clearly oppose dismissal of his procedural
due process claim based on the City’s alleged breach of the natural
gas 	agreement. 	In 	his 	response 	to 	Defendants’ 	present 	motion 	to
dismiss, 	Lunsford 	did 	not 	explicitly 	address 	this 	claim 	or 	point
to 	any 	authority 	suggesting 	that 	a 	city’s 	alleged 	breach 	of 	a
contract 	to 	install 	new 	gas 	mains 	amounts 	to 	a 	deprivation 	of 	a
constitutionally 	protected 	property 	interest. 	Even 	if 	he 	had
adequately alleged that the City deprived him of a constitutionally
protected 	property 	interest 	by 	failing 	to 	install 	the 	gas 	mains,
Lunsford does not dispute that he has an adequate means to remedy
the 	alleged 	deprivation: 	he 	can 	bring 	a 	state 	law 	breach 	of
contract 	claim 	with 	a 	prayer 	for 	specific 	performance. 	Lunsford
asserted 	such 	a 	state 	law 	claim 	in 	his 	complaint. 	Accordingly,
the Court dismisses Lunsford’s procedural due process claims that
are based on the City’s failure to install the gas mains.
The 	next 	claim 	is 	Lunsford’s 	procedural 	due 	process 	claim
based 	on 	the 	City’s 	alleged 	refusal 	to 	issue 	certificates 	of
occupancy and completion for his storage building. 	Again, Lunsford
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alleges 	that 	after 	he 	constructed 	the 	storage 	building, 	the 	City
refused to issue certificates of completion or occupancy. 	In his
Complaint, Lunsford did not allege any facts about his pursuit of
the 	certificates, 	such 	as 	when 	he 	applied 	for 	the 	certificates,
how he applied for the certificates, or who communicated with him
on behalf of the City. 	Lunsford also did not include such factual
allegations in his response to the present motion to dismiss or in
his motion for leave to file an amended complaint. 	He does allege
that the City, through its mayor, offered “baseless excuse[s]” for
the City’s refusal to issue the certificates. 	Compl. ¶ 107.
The Court assumes for the purposes of the present order that
Lunsford 	has 	a 	protected 	property 	interest 	in 	obtaining
certificates of occupancy and completion for the storage building
and 	that 	the 	City 	deprived 	him 	of 	those 	certificates 	by 	state
action. 	The 	remaining 	question 	is 	whether 	Lunsford 	adequately
alleged constitutionally inadequate process. 	A § 1983 procedural
due process claim is not cognizable “if the state provides a means
by which to remedy the alleged deprivation.” 	Foxy Lady, Inc., 347
F.3d 	at 	1238; 	accord 	Watts 	v. 	Fla. 	Int’l 	Univ., 	495 	F.3d 	1289,
1294 	(11th 	Cir. 	2007) 	(finding 	that 	a 	district 	court 	correctly
dismissed 	a 	plaintiff’s 	procedural 	due 	process 	claim 	because 	he
did 	not 	present 	“any 	reason 	to 	believe 	that 	he 	could 	not 	receive
a procedural remedy through a state court proceeding”).
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Defendants 	contend 	that 	Lunsford 	has 	several 	avenues 	for 	a
state 	remedy, 	including 	an 	appeal 	of 	the 	City’s 	denial 	of 	the
certificates 	and 	a 	petition 	for 	a 	writ 	of 	mandamus. 	Lunsford
argues 	that 	these 	remedies 	are 	not 	available 	to 	him, 	but 	he 	did
not 	point 	to 	any 	factual 	allegations 	that 	support 	this 	argument.
Under the City’s zoning ordinance, the “Zoning Administrator shall
sign and issue a Certificate of Occupancy” if the application meets
certain 	requirements. 	Compl. 	Ex. 	B, 	Bowman 	Zoning 	Ordinance
§ 12.4, ECF No. 1-2. 	If a person is “aggrieved by any decision of
Administrator or Building Inspector,” he “shall have the right of
appeal 	to 	Bowman 	Mayor 	and 	Council” 	after 	“the 	rendering 	of 	the
decision.” 	Id. 	§ 15.7.1. 	If 	a 	person 	is 	“aggrieved 	by 	any
decision of the Bowman Mayor and Council,” he “shall have the right
of 	appeal 	to 	the 	Elbert 	County 	Superior 	Court.” 	Id. 	§ 15.7.2.
Lunsford alleges that he “fully constructed” the storage building,
that he applied for certificates of completion and occupancy, that
the 	City 	through 	its 	mayor 	“has 	refused 	to 	issue” 	such
certificates, 	and 	that 	he 	is 	aggrieved 	by 	the 	refusal. 	Compl.
¶¶ 101, 107. 	Lunsford does not allege that he attempted to appeal
this refusal under § 15.7.1 or § 15.7.2. 	Instead, he argues that
he 	cannot 	appeal 	because 	he 	did 	not 	receive 	a 	denial 	in 	writing
and 	the 	City 	did 	not 	take 	any 	enforcement 	action 	against 	him
regarding 	the 	storage 	building. 	But 	Lunsford 	pointed 	to 	no
provision 	in 	the 	zoning 	ordinance 	that 	would 	preclude 	him 	from
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appealing 	a 	City 	representative’s 	oral 	refusal 	to 	sign 	the
certificates, 	and 	he 	did 	not 	allege 	that 	he 	attempted 	to 	appeal
but 	was 	unable 	to 	do 	so. 	The 	Court 	is 	thus 	not 	convinced 	that
Lunsford lacks a remedy under the zoning ordinance.
Even 	if 	Lunsford 	had 	alleged 	facts 	to 	show 	that 	the 	City 	is
somehow 	preventing 	him 	from 	using 	the 	zoning 	ordinance’s 	appeal
procedures, 	then 	it 	is 	unclear 	why 	he 	could 	not 	seek 	a 	writ 	of
mandamus 	as 	permitted 	by 	O.C.G.A. 	§ 	9-6-20. 	“Under 	Georgia 	law,
when 	no 	other 	specific 	legal 	remedy 	is 	available 	and 	a 	party 	has
a 	clear 	legal 	right 	to 	have 	a 	certain 	act 	performed, 	a 	party 	may
seek mandamus.” 	Cotton v. Jackson, 216 F.3d 1328, 1332 (11th Cir.
2000) 	(per 	curiam). 	The 	remedy 	“is 	available 	when 	an 	official
abuses 	his 	discretion.” 	Id. 	Here, 	Lunsford 	alleges 	that 	City
officials 	lacked 	a 	legitimate 	basis 	for 	denying 	his 	certificates
of occupancy and completion, he contends that he does not have an
adequate 	remedy 	under 	the 	zoning 	ordinance, 	and 	he 	wants 	to 	have
a 	court 	compel 	City 	officials 	to 	issue 	the 	certificates. 	If 	the
Court accepts these facts, there is still a remedy: mandamus.
Finally, Lunsford argues that mandamus is unavailable to him
because 	he 	does 	not 	know 	who 	to 	name 	in 	such 	an 	action. 	This
argument 	is 	borderline 	frivolous. 	Lunsford 	should 	name 	the
official whose action he seeks to compel, the Zoning Administrator.
See 	Bowman 	Zoning 	Ordinance 	§ 12.4 	(requiring 	the 	“Zoning
Administrator” 	to 	“sign 	and 	issue 	a 	Certificate 	of 	Occupancy” 	if
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the application meets certain requirements). 	The zoning ordinance
defines 	the 	Zoning 	Administrator 	as 	the 	“city 	clerk 	or 	his/her
designated 	representative, 	who 	is 	vested 	with 	the 	duty 	of
administrating land use regulations within the incorporated areas
of the City of Bowman.” Id. § 13.1.1.58.
In 	summary, 	the 	Court 	finds 	that 	Lunsford’s 	complaint 	fails
to state a procedural due process claim. 	Defendants’ second motion
to dismiss (ECF No. 14) is therefore granted.
II. 	Lunsford’s Motion for Leave to Amend (ECF No. 17)
After 	the 	City 	filed 	its 	second 	motion 	to 	dismiss, 	Lunsford
filed a motion for leave to amend his complaint. 	He contends that
even 	if 	his 	original 	complaint 	does 	not 	state 	a 	procedural 	due
process 	claim, 	he 	could 	state 	such 	a 	claim 	if 	he 	were 	allowed 	to
amend 	his 	complaint. 	Under 	Federal 	Rule 	of 	Civil 	Procedure
15(a)(2), a party may amend its pleading with leave of the court,
and the “court should freely give leave when justice so requires.”
Lunsford 	argues 	that 	if 	the 	Court 	gives 	him 	leave 	to 	amend 	his
complaint, 	he 	will 	add 	additional 	facts 	about 	the 	City’s 	refusal
to issue certificates of occupancy and completion. 	He did not set
forth such facts in his motion for leave to amend, and he did not
attach 	a 	proposed 	amended 	complaint 	setting 	forth 	such 	facts. 	A
motion 	for 	leave 	to 	amend 	must 	“set 	forth 	the 	substance 	of 	the
proposed amendment or attach a copy of the proposed amendment” so
that 	the 	Court 	can 	evaluate 	it. 	Wiand 	v. 	ATC 	Brokers 	Ltd., 	96
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F.4th 1303, 1312 (11th Cir. 2024) (quoting Cita Tr. Co. AG v. Fifth
Third 	Bank, 	879 	F.3d 	1151, 	1157 	(11th 	Cir. 	2018)). 	Because
Lunsford 	did 	not 	indicate 	what 	additional 	facts 	he 	intended 	to
allege in his amended complaint—and certainly did not include any
facts that would save his procedural due process claims—his motion
for 	leave 	to 	amend 	(ECF 	No. 	17) 	is 	legally 	insufficient 	and 	is
thus denied.
CONCLUSION
For the reasons set forth above, the Court grants Defendants’
motion to dismiss Lunsford’s remaining § 1983 claims (ECF No. 14),
and the Court denies Lunsford’s motion for leave to amend (ECF No.
17). 	The 	Court 	has 	now 	dismissed 	all 	claims 	over 	which 	it 	had
original 	jurisdiction, 	and 	the 	Court 	declines 	to 	exercise
supplemental 	jurisdiction 	over 	Lunsford’s 	state 	law 	claims. 	See
28 U.S.C. § 1367(c)(3). 	The state law claims are dismissed without
prejudice.
IT IS SO ORDERED, this 9th day of January, 2026.
S/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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