USCA11 Case: 22-12987 Document: 57-1 Date Filed: 10/26/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12987
Non-Argument Calendar
____________________
DIYONNE L. MCGRAW,
Plaintiff-Appellant,
versus
KHANH-LIEN ROBERTS BANKO,
SELDON J CHILDERS,
CHILDERS LAW, LLC,
RON DESANTIS,
In his Individual Capacity and Official
Capacity as Governor of Florida,
Defendants-Appellees.
____________________
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2 Opinion of the Court 22-12987
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:21-cv-00163-AW-MAF
____________________
Before NEWSOM, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
We grant the petition for rehearing in part, withdraw our
previous opinion, and replace it with the following.
Diyonne McGraw won an election for a school board seat
for District Two in Alachua County, Florida. But McGraw had a
problem: The local media discovered that she did not actually live
in that district, even though a county official had told her other-
wise. So McGraw’s opponent in the primary election, Khanh-Lien
Roberts Banko, hired an attorney, Seldon Childers, to file an emer-
gency declaratory judgment action against McGraw in state court.
Banko alleged that McGraw’s seat was technically vacant under
Florida law, which requires that public officials live in the districts
they represent. The state court denied Banko’s emergency motion
for relief but suggested that Banko was likely to succeed on the
merits. Childers forwarded that order to Governor DeSantis’s of-
fice, and Banko also wrote to the Governor.
In response, Governor DeSantis issued Executive Order 21-
147. The Executive Order explained that, because he concluded
that McGraw failed to maintain residency in District Two, her seat
was vacant as a matter of law. McGraw filed a petition for a writ of
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22-12987 Opinion of the Court 3
quo warranto against Governor DeSantis in state court, which the
court denied. McGraw appealed that order.
McGraw then filed this action. In the operative complaint,
McGraw alleges that Governor DeSantis, Banko, Childers, and
Childers’s law firm conspired to infringe her “fundamental right”
under the Due Process Clause of the Fourteenth Amendment to
“vote and have her vote counted.” She sought compensatory dam-
ages and injunctive relief. The defendants separately moved to dis-
miss the second amended complaint.
The district court dismissed each of McGraw’s claims—
some on justiciability grounds, the rest on the merits. Banko ap-
pealed.
After appealing, McGraw ran for election in a newly drawn
District Two and won, which mooted the state court appeal of her
petition for a writ of quo warranto. Likewise, McGraw concedes
that her requests for injunctive relief in this case are moot because
she currently serves on Alachua County’s school board. So we con-
sider only her claims for damages in this appeal.
We review de novo a district court’s order granting a Rule
12(b)(6) motion to dismiss, accepting the allegations in the com-
plaint as true and construing them in the light most favorable to
the plaintiff. Am. Dental Ass’n v. Cigna Corp.,
605 F.3d 1283, 1288
(11th Cir. 2010). To survive a motion to dismiss, a complaint must
“state a claim to relief that is plausible on its face,” meaning it must
contain “factual content that allows the court to draw the reasona-
ble inference that the defendant is liable for the misconduct
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4 Opinion of the Court 22-12987
alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
McGraw contends that Governor DeSantis and by extension
the other defendants 1 violated her substantive due process right “to
vote and have her vote counted.” By removing her from office, her
theory goes, Governor DeSantis “disenfranchised her and her vot-
ers.” As for McGraw’s only remaining claim for damages, the Gov-
ernor argues that he is protected by qualified immunity because his
actions did not violate clearly established law. We agree.
The Due Process Clause of the Fourteenth Amendment
“guarantee[s] some rights that are not mentioned in the Constitu-
tion, but any such right must be ‘deeply rooted in this Nation’s his-
tory and tradition’ and ‘implicit in the concept of ordered liberty.’”
Dobbs v. Jackson Women’s Health Org.,
142 S. Ct. 2228, 2242 (2022)
(quoting Washington v. Glucksberg,
521 U.S. 702, 721 (1997)). Courts
rarely recognize new substantive due process rights. Collins v. City
of Harker Heights,
503 U.S. 115, 125 (1992) (“[T]he Court has always
1 The other defendants argue that they are not state actors for the purposes of
this constitutional claim. We agree. It is “[o]nly in rare circumstances” that a
private party can be viewed as a state actor for purposes of Section 1983. Har-
vey v. Harvey,
949 F. 2d 1127, 1130 (11th Cir. 1992). A private person may be
considered a state actor if they willfully participated in a joint act with the state
or its agents. Dennis v. Sparks,
449 U.S. 24, 27-28 (1980). We cannot say that
Banko, Childers, and Childers’s law firm engaged in that kind of joint act when
they petitioned the Governor in light of the state court’s ruling. See, e.g., Cobb
v. Georgia Power Co.,
757 F.2d 1248, 1251 (11th Cir. 1985)(“One who has ob-
tained a state court order or judgment is not engaged in state action merely
because it used the state court legal process.”).
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22-12987 Opinion of the Court 5
been reluctant to expand the concept of substantive due process
because guideposts for responsible decisionmaking in this unchar-
tered area are scarce and open-ended.”). A plaintiff may bring an
action under Section 1983 for violations of substantive due process
rights, see Maddox v. Stephens,
727 F.3d 1109, 1118 (11th Cir. 2013),
but a plaintiff cannot prevail unless the Due Process Clause pro-
tects the right invoked.
For its part, qualified immunity shields state officials from
liability for money damages in their individual capacity unless a
plaintiff pleads facts showing “(1) that the official violated a statu-
tory or constitutional right, and (2) that the right was ‘clearly estab-
lished’ at the time of the challenged conduct.” Ashcroft v. al–Kidd,
563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald,
457 U.S. 800,
818 (1982)). “‘Clearly established’ means that, at the time of the of-
ficer’s conduct, the law was sufficiently clear that every reasonable
official would understand that what he is doing is unlawful.” Dis-
trict of Columbia v. Wesby, ––– U.S. ––––,
138 S. Ct. 577, 589 (2018)
(quoting Ashcroft v. al–Kidd,
563 U.S. 731, 735,
131 S. Ct. 2074,
179
L.Ed.2d 1149 (2011)) (internal quotation marks omitted).
McGraw cannot prove the existence of a clearly established
substantive due process right on which she may base her claim.
McGraw relies on a single, inapposite decision from the former
Fifth Circuit. See Duncan v. Poythress,
657 F.2d 691, 703-04 (5th Cir.
Unit B Sept. 1981). There, the court held that public officials disen-
franchise the electorate when they fill by appointment an office
that state law mandates filling by election. This case has little in
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6 Opinion of the Court 22-12987
common with Duncan. There, state officials deprived voters of an
election to fill a public office where state law required one.
Id. Here,
voters voted and elected McGraw. But Governor DeSantis deter-
mined the seat to which McGraw was “elected” was vacant under
state law because he determined that she did not reside in the dis-
trict. Put differently, voters exercised their right to vote. But they
elected someone who another state official determined was ineligi-
ble to hold the position under state law. We cannot say that the
Governor’s actions violated a clearly established constitutional
right such that he may be held liable for damages.
For these reasons, the district court is AFFIRMED.
McGraw’s motions for sanctions are DENIED.
