Jabary v. City of Allen

What This Case Is About

Mike Jabary opened a restaurant and hookah bar in Allen, Texas. After he sold a legal-but-controversial synthetic cannabis product called “K2,” city officials revoked his Certificate of Occupancy without a hearing. Jabary sued the city and multiple officials under § 1983, alleging violations of due process and other constitutional rights. The Fifth Circuit partially reversed the district court’s dismissal, finding that Jabary stated a viable procedural due process claim against two officials.

The Facts

Jabary applied for a Commercial Certificate of Occupancy from the City of Allen to open a restaurant. The city’s Chief Building Official, Bret McCullough, suggested amending the application to describe the use as a “Restaurant and Hookah Bar.” The city issued the certificate in January 2009, and Jabary opened his business selling food, drinks, and tobacco products — including K2 (“Spice”), a then-legal synthetic cannabinoid. K2 drew complaints from residents and caught the attention of city officials. The city council passed an emergency ordinance banning K2, and shortly after, Mayor Stephen Terrell directed McCullough to revoke Jabary’s Certificate of Occupancy. McCullough revoked the certificate without providing Jabary a hearing or meaningful opportunity to respond.

What the Court Decided

The Fifth Circuit held that Jabary adequately stated a procedural due process claim against Mayor Terrell and Chief Building Official McCullough. The court found that Jabary plausibly alleged he had a protected property interest in his Certificate of Occupancy — and that the city deprived him of that interest without adequate pre-deprivation process.

However, the court affirmed dismissal of several other claims. The substantive due process claim failed because Jabary did not allege conduct “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” The equal protection claim failed for lack of specific factual allegations of similarly situated businesses treated differently. The conspiracy claims failed because Jabary’s allegations were conclusory.

Why This Case Matters for Your § 1983 Case

Jabary is instructive on the difference between procedural and substantive due process claims, and it shows how plausibility pleading under Iqbal and Twombly applies to different constitutional theories:

• Procedural due process: You must show (1) a protected property or liberty interest, and (2) that the government deprived you of it without adequate process. A government-issued license or permit can create a property interest.
• Substantive due process: The bar is much higher — you must show the government’s conduct “shocks the conscience.” Ordinary misconduct or bad faith is not enough.
• Conspiracy claims: Conclusory allegations of agreement are insufficient. You must plead specific facts showing an actual agreement to violate your rights.

Key Takeaway

When the government revokes a license or permit without a hearing, a procedural due process claim under § 1983 is viable — but substantive due process requires “conscience-shocking” conduct, and conspiracy claims require specific factual allegations of an agreement, not just conclusory assertions.