William R. Muldrow v. Cathy Davis ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-13926 JULY 14, 2011
________________________ JOHN LEY
CLERK
D. C. Docket No. 08-00109-CV-4-SPM-WCS
WILLIAM R. MULDROW,
Plaintiff,
BLUE CHIP CONSTRUCTION COMPANY,
Intervenor-Plaintiff-
Appellee,
versus
CATHY DAVIS,
Individually,
DAVID REID,
Individually,
KENT RICKEY,
Individually,
Defendants-Intervenor-
Defendants,
CITY OF TALLAHASSEE,
a Municipal Corporation
of the State of Florida,
Defendant-Intervenor-
Defendant,
CANDIE M. FULLER,
Appellant,
SAM MCCALL,
JOHN MARKS,
JOYCE MARTINEZ,
ANITA FAVORS,
THOMAS LEWIS,
Defendants.
________________________
Appeals from the United States District Court
for the Northern District of Florida
_________________________
(July 14, 2011)
Before HULL and BLACK, Circuit Judges, and HUCK,* District Judge.
PER CURIAM:
After oral argument and review of the briefs and record, the Court has
determined that Plaintiff-Appellee Blue Chip Construction Company’s (“Blue
Chip”) First Amended Complaint failed to state a retaliation claim in Count II
*
Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
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against Defendant-Appellant Candie M. Fuller (“Fuller”), Inspector General of the
Florida Department of Community Affairs, and that the district court erred in
denying Fuller’s motion to dismiss on qualified immunity grounds.
Only Count II of the First Amended Complaint makes allegations against
Fuller, and only Count II as to Fuller is involved in this appeal. Count I of the First
Amended Complaint and Count II as it relates to the other defendants remain
pending in the district court.
I. PROCEDURAL HISTORY
On April 20, 2009, Blue Chip filed its First Amended Complaint (“the
Complaint”) against Fuller and the other defendants. Count I of the Complaint
alleged that the City of Tallahassee and some of its officials maintained a racially
discriminatory policy in awarding certain contracts, and sought damages,
attorneys’ fees, and compensatory and punitive damages under 42 U.S.C. §§ 1983
and 1985. Count I was previously the substance of a free-standing lawsuit. Fuller
was not a defendant in that prior lawsuit and is not a defendant in Count I of this
lawsuit.
Count II of the Complaint alleged that Fuller, at the state level, conspired
with local officials from the City of Tallahassee to engage in a racially
discriminatory audit in retaliation for Blue Chip’s having filed Count I as a free-
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standing lawsuit, and sought damages under 42 U.S.C. §§ 1983 and 1985.
Fuller filed a Rule 12(b)(6) motion to dismiss Count II of the First Amended
Complaint, arguing (1) that Blue Chip failed to state a § 1983 claim on which relief
could be granted and (2) that she was entitled to qualified immunity. In an order
dated July 9, 2009, the district court denied Fuller’s motion.
II. DISCUSSION
We review de novo a district court’s denial of a motion to dismiss on the
basis of qualified immunity. Courson v. McMillian, 939 F.2d 1479, 1486 (11th
Cir. 1991). “In ruling on a 12(b)(6) motion, the Court accepts the factual
allegations in the complaint as true and construes them in the light most favorable
to the plaintiff.” Speaker v. U.S. Dep’t of Health and Human Servs. Ctrs. for
Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). To prove
First Amendment retaliation, a plaintiff must show that “(1) his speech or act was
constitutionally protected; (2) the defendant’s retaliatory conduct adversely
affected the protected speech; and (3) there is a causal connection between the
retaliatory actions and the adverse effect on speech.” Moton v. Cowart, 631 F.3d
1337, 1341 (11th Cir. 2011) (quotation marks omitted). To show purposeful racial
discrimination sufficient to overcome qualified immunity, a plaintiff “must plead
sufficient factual matter to show that [defendant] adopted and implemented the []
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policies at issue not for a neutral, investigative reason but for the purpose of
discriminating on account of race, religion, or national origin.” Ashcroft v. Iqbal,
556 U.S. __, 129 S. Ct. 1937, 1948-49 (2009) (discussing federal Bivens claim)
(quotation marks omitted).
In this case, Blue Chip made only conclusory allegations against Fuller in
Count II and failed to provide any factual basis to support the claim that Fuller
engaged in her audit “for the purpose of discriminating on account of race,
religion, or national origin.” Id. at 1949. “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.’” Id. (quoting Bell Atl. Co. v. Twombly, 550
U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Accordingly, we reverse the district court’s denial of Fuller’s motion to
dismiss and remand for entry of judgment in favor of Fuller on Count II.
REVERSED AND REMANDED.
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