GJR Investments, Inc. v. County of Escambia

United States Court of Appeals,
Eleventh Circuit.
Nos. 96-2290, 96-2321.
GJR INVESTMENTS, INC., Plaintiff-Appellee,
v.
COUNTY OF ESCAMBIA, FLORIDA, a political subdivision of the State of Florida, Lisa
Minshew, Defendants,
W.A. Lee, a.k.a Buck Lee, Wiley C. Page, Bennie Kenney, Defendants-Appellants.
GJR Investments, Inc. Plaintiff-Appellee,
v.
County of Escambia, Florida, a political subdivision of the State of Florida Defendant,
Lisa Minshew, Defendant-Appellant,
W.A. Lee, a.k.a. Buck Lee, Wiley C. Page, Bennie Kenney, Defendants.
Jan. 5, 1998.
Appeals from the United States District Court for the Northern District of Florida. (Nos. 95-
30380/LAC, 95-30380-CIV-LAC), Lacey A. Collier, Judge.
Before HATCHETT, Chief Judge, and TJOFLAT and COX, Circuit Judges.
COX, Circuit Judge:
This case concerns a highly politicized dispute over plaintiff-appellee GJR Investments,
Inc.'s desire to construct an RV campground on its property on Perdido Key in Escambia County,
Florida. Escambia County eventually granted GJR a permit to build the campground, although GJR
had to submit four separate applications, and filed two state court lawsuits in the process. GJR then
sued the county and several county officials and employees under 42 U.S.C. § 1983 for damages
caused by the delay in approving the permit, alleging that the county and the named defendants had
violated GJR's constitutional rights by delaying the permit approval process.
GJR contends that the individual defendants-appellants1 intentionally threw up procedural
roadblocks during the permit approval process in an attempt to delay or deter its construction of an
RV park on Perdido Key. GJR argues that these actions violated its rights both to due process and
to equal protection under the Fourteenth Amendment, and further that the delay in effect
accomplished a taking of its property without just compensation for purposes of the Fifth
Amendment.2 In the district court the defendants moved to dismiss GJR's claims under Fed.R.Civ.P.
12(b)(6) on the ground of qualified immunity. The court denied the motions, and defendants
appealed. For the reasons stated below, we reverse the district court's ruling.
I. ALLEGATIONS OF THE COMPLAINT
A complete copy of the complaint is made an appendix to this opinion. Accepting all
allegations in the complaint as true, and construing facts in a light most favorable to the plaintiff,
see Harper v. Thomas, 988 F.2d 101, 103 (11th Cir.1993), we summarize the allegations as follows.
Appellee GJR Investments, Inc. is a Texas corporation that is the "beneficial owner,"3 (R.1-1
at 3), of certain real property on Perdido Key in Escambia County, Florida. The property is located
in an area designated by Escambia County Ordinance Code (the "Code") 89-6 as a commercial "C-1"
1
Although Escambia County is also a defendant to the suit, it is not a party to this appeal. We
will refer to the four individual defendants-appellants (Minshew, Lee, Page and Kenney)
collectively as "defendants" for purposes of this opinion, naming Escambia County separately
when necessary.
2
While GJR makes these constitutional arguments in its brief, this appeal comes to us in the
context of a motion to dismiss. Therefore, the proper inquiry, see Part V.B.2., infra, is whether
GJR sufficiently alleged a constitutional violation in its complaint.
3
This is the term that GJR uses in its complaint to describe its interest in the property at issue.
However, the complaint fails to explain further the nature of this "beneficial" ownership, stating
only that Perdido Beach Limited, a Louisiana limited partnership, and Yenavlum, Inc., a Texas
corporation, "[hold] legal title to the Property as [GJR's] agents and nominees." (R.1-1 at 4.)
zoning district. GJR sought to develop the property as an RV campground despite strident
opposition from the residents of Perdido Key.
In October 1992 GJR filed its first application to develop the property as a campground. On
the advice of the staff of the Escambia County Department of Growth Management Services that
the proposed campground was not a "permitted use" in a C-1 district, GJR applied to develop the
property as a special exception and planned use development ("PUD"). GJR withdrew its
application in December of 1992, upon further advice from the Growth Management Services staff
that the application still did not comply with the Code.
In May 1993 GJR submitted a second application, this time to develop the campground as
an amusement/recreational facility and a PUD. The Escambia County Zoning Board of Adjustment
denied this application, and GJR appealed to the Escambia County Board of County Commissioners,
which affirmed the decision. GJR subsequently appealed the county commissioners' decision to the
Florida state courts.
While its appeal was pending, GJR filed a third application, this time for permission to
develop the campground as a permitted use under the Code. This application also was denied.
Subsequently, GJR filed a suit for declaratory judgment, asking the Florida courts to declare that
development of the property as a campground is a permitted use under the Code. In March 1994, the
parties settled the dispute regarding the permit: The county agreed to approve a fourth application
from GJR to develop the property as a campground as a permitted use, and in return GJR dismissed
both of its pending state lawsuits.
In its complaint, GJR calls attention to various actions on the part of the individual
defendants that GJR alleges violated its constitutional rights:
A. BENNIE KENNEY
Kenney is an assistant to W.A. "Buck" Lee, an Escambia County Commissioner. Kenney
is a resident of Perdido Key who opposed the construction of the campground and was involved in
a citizens' group that organized to oppose the project. GJR alleges that at defendant Wiley C. Page's
invitation, Kenney attended a Growth Management Services staff meeting pertaining to GJR's
second application, even though attendance at such a meeting does not fall within Kenney's job
responsibilities and she had never previously been invited to attend one.
GJR also alleges that before the appeal of its second application to the Board of County
Commissioners, Kenney asked Lee to order a U.S. Department of Agriculture soil analysis of GJR's
property at the behest of another Perdido Key resident who opposed the project. The resident had
attempted to obtain such an analysis on his own, but was informed that only the landowner or a
county commissioner could request one. GJR claims that Kenney asked Lee to order such an
analysis at the request of the resident.
B. W.A. "BUCK" LEE
Defendant Lee is an Escambia County Commissioner. Lee neither represented nor resided
on Perdido Key, but he spoke out against the project at the Zoning Board hearing on GJR's second
application despite the fact that as a county commissioner he would hear any appeal of the Zoning
Board's decision. Lee also ordered a Department of Agriculture soil analysis of GJR's property, the
results of which he then distributed to his fellow commissioners. GJR also alleges that Lee
distributed numerous letters from Perdido Key residents opposed to the project to his fellow county
commissioners, and only recused himself from the appeal proceeding at GJR's objection.
C. WILEY C. PAGE
Page is the director and supervisor of the Escambia County Department of Growth
Management Services ("GMS"). GJR alleges that before the submission of its first application for
development Page directed the GMS staff to misrepresent the development requirements for a C-1
district and to inform GJR that it could develop a campground on the property only as a special
exception and PUD, not as a permitted use. GJR also alleges that in response to the significant
public outcry against the project, Page directed the GMS staff to review GJR's first application more
strictly than other development applications filed in Escambia County.
Regarding the second application, GJR alleges that Page expressly invited Kenney to attend
the GMS staff meeting, knowing that she opposed the project and that attendance at such a meeting
did not fall within her responsibilities as Lee's assistant. Following the meeting, Page informed GJR
that even though the GMS staff recommended approval of the second petition, he would recommend
that the Zoning Board deny the application. He further informed GJR that in order to obtain a
permit, it would have to appear before the Zoning Board in person to plead its case and persuade the
Board to award the permit. GJR claims that Page inappropriately presented county commissioners
with additional letters from Perdido Key residents opposed to the project as part of the record on
appeal and invited BCC members to contact him for further information regarding residents' remarks
about the project. Finally, GJR asserts that Page "administratively "rejected' " its third application
out of hand. (R.1-1 at 16.)
D. LISA MINSHEW
Minshew is an attorney retained by Escambia County for land use matters. GJR alleges that
Minshew initially advised the GMS staff to reject GJR's application, stating that GJR was an
"out-of-state developer" and noting the Perdido Key residents' considerable hostility to the project.
GJR contends that Minshew gave the GMS staff erroneous and misleading instructions regarding
the prerequisites for approval of GJR's petition. Further, GJR avers, it was "standard procedure" to
submit incomplete permit applications to the Zoning Board for approval, but Minshew advised the
GMS staff not to do so with GJR's incomplete permit application.
GJR also asserts misconduct on Minshew's part at the Zoning Board hearing, alleging that
Minshew coerced a GMS staff member into making false statements to the Board regarding the
applicable criteria for approval of the project. In addition, GJR contends that after the formal
presentation and comment period, Minshew engaged in an ex parte communication with Zoning
Board members which prompted them to "summarily reject" the second application. Finally, GJR
alleges that Minshew attempted to introduce erroneous and misleading material into the official
record at the BCC appeal and knowingly misstated the applicable law to the commissioners.
II. PROCEDURAL HISTORY
Following the approval of its fourth application, GJR filed this suit against Escambia County,
Minshew, Lee, Page, and Kenney. GJR's "First Cause of Action" alleges that the defendants
individually violated GJR's constitutional rights, asserting claims under 42 U.S.C. § 1983. Its
"Second Cause of Action" contends that the defendants conspired to violate the same rights and also
seeks relief under § 1983.4 The "Third Cause of Action" alleges that Escambia County took GJR's
property without just compensation in violation of the Fifth and Fourteenth Amendments. GJR
claims as damages unnecessary fees, taxes and insurance premiums, lost profits, and increased costs
resulting from the delay it incurred in getting its permit application approved.
All defendants moved to dismiss, claiming, inter alia, qualified immunity from GJR's suit.
The district court turned to Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208 (11th Cir.1995),
which enumerates four possible types of constitutional challenges applicable to a zoning decision:
"(1) just compensation takings, (2) due process takings, (3) substantive due process, ... and (4) equal
4
It is black-letter law that § 1983 is not itself a source of substantive rights. See, e.g., Albright
v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 811, 127 L.Ed.2d 114 (1994).
protection." Id. at 1211 n. 1 (citing Eide v. Sarasota County, 908 F.2d 716, 720 (11th Cir.1990)).
The court concluded that allegations supporting any one of these four claims would defeat a motion
to dismiss under 12(b)(6). The district court divined an equal protection claim from two allegations
buried in the middle of GJR's exhaustive and rambling recitation of the events: an allegation that
GJR's development applications had been subjected to stricter analysis vis-à-vis other unspecified
development applications filed in Escambia County, and an allegation that GJR had been required
to present its application to the Zoning Board directly, unlike other developers in Escambia County.
Based on these allegations, the district court held that it could not conclude as a matter of law that
defendants' actions did not violate GJR's equal protection rights, and denied defendants' 12(b)(6)
motions.5
The district court reviewed the defendants' qualified immunity arguments with respect to the
equal protection claim it found in its 12(b)(6) analysis. It concluded that GJR had alleged a violation
of a clearly established constitutional "right to be treated equally in its application for a development
permit," (R.2-83 at 10), finding authority for the existence of such a right in Eide v. Sarasota
County, 908 F.2d 716 (11th Cir.1990). However, the district court stated that it could not determine
whether a genuine issue of fact existed as to whether GJR's rights in this respect had been violated.6
5
This ruling seems based on the idea that a party who cannot successfully assert qualified
immunity as to one of several claims in a complaint is foreclosed from asserting qualified
immunity to any of the claims. This notion is erroneous, as we discuss in Part V.B.3., infra.
6
It is unclear why the district court made any determination with respect to issues of material
fact. The defendants moved to dismiss GJR's complaint under Fed R. Civ. P. 12(b)(6), not for
summary judgment under Rule 56. Thus, the appropriate inquiry was whether GJR's complaint
sufficiently stated a claim, not whether material issues of fact existed. See, e.g., Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). While Rule 12 provides that
a 12(b)(6) motion to dismiss shall be treated as a Rule 56 summary judgment motion if a movant
presents matters outside the pleading to the court, it does not appear that the defendants
presented such material in their motions to dismiss, and the district court's order does not
indicate that it in fact utilized this provision of Rule 12 in ruling on the motions.
It therefore denied the defendants' motions to dismiss and permitted discovery with respect to the
qualified immunity question. Page subsequently moved for reconsideration or clarification of the
district court's order with respect to other claims in the complaint, specifically substantive due
process. On reconsideration, the court dismissed GJR's substantive due process claim with
prejudice. Kenney, Lee, Minshew, and Page appeal from the district court's order denying their
motions to dismiss with respect to the equal protection claim.
III. ISSUE ON APPEAL
The issue we address on appeal is whether the district court erred in dismissing defendants'
motions to dismiss on the ground of qualified immunity, based on its determination that GJR's
complaint alleged a violation of a clearly established equal protection "right to be treated equally
in its application for a development permit." (R.2-83 at 10.)
IV. CONTENTIONS OF THE PARTIES
Primarily, the defendants contend that the district court erred in holding that GJR's complaint
alleged an equal protection violation. The court analyzed GJR's claims under a "rational basis"
standard applicable to facial challenges to legislation, but the defendants argue that GJR's complaint
at most makes out an "as applied" challenge. They contend that the court instead should have
determined whether the complaint sufficiently alleged the discriminatory application of a facially
neutral law, see E & T Realty v. Strickland, 830 F.2d 1107 (11th Cir.1987), and that GJR's complaint
fails so to allege. Only Minshew addresses GJR's Fifth Amendment takings claim, arguing that it
fails in two respects: (1) GJR failed to exhaust its available state court remedies, and (2) the denial
of the development permit did not constitute a taking, as it did not deprive GJR of all viable
economic use of the Perdido Key property.
Finally, the defendants contend that the failure of GJR's substantive claims dooms its § 1983
conspiracy claim, as a plaintiff may only maintain a § 1983 conspiracy action if it first demonstrates
an underlying constitutional violation. In the alternative, defendants argue that the allegations
supporting the existence of a conspiracy are conclusory at best, and the district court should have
dismissed the conspiracy claim on this basis regardless of its determination of the merits of the
substantive claims.
GJR agrees that any equal protection claim in its complaint should be analyzed as an "as
applied" challenge, but contends that its pleading sufficiently makes out such a claim. GJR argues
that its complaint alleges that it is situated similarly to all other owners of C-1 zoned property who
have applied for a permit to develop their land for a permitted use. In addition, it contends that the
complaint "adequately identified [GJR] as part of a group against which [the defendants]
purposefully discriminated—nonresidents of Florida." Appellee's Brief at 28. As to the Fifth
Amendment takings claim, GJR asserts that this claim is only against the county, and not any of the
individual defendants. The county is not a party to this appeal, thus, GJR argues, any resolution of
the merits of the just compensation claim is improper at this stage of the litigation. Finally, GJR
argues that the district court did not err in refusing to dismiss the conspiracy claim, as the complaint
sufficiently alleged both substantive constitutional violations and a conspiracy among the
defendants.
V. DISCUSSION
A. JURISDICTION
Before turning to the merits of this appeal, we briefly address the issue of this court's
jurisdiction over this interlocutory appeal. We earlier requested the parties to brief the jurisdictional
question; after receiving the parties' responses, we ruled that the issue would be carried with the
case. Upon further consideration we find that this court has jurisdiction over the appeal.
While it is true that the district court could not determine whether a genuine issue of material
fact existed with respect to whether defendants' conduct violated clearly established law,7 that
conclusion alone does not preclude interlocutory appellate review of the denial of a motion to
dismiss on qualified immunity grounds. The Supreme Court clarified this issue in Behrens v.
Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (limiting Johnson v. Jones, 515 U.S.
304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)), rejecting the contention that the existence of material
issues of fact in itself bars interlocutory review of accompanying issues of law. See id. at ----, 116
S.Ct. at 842. We reiterated this point in Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir.1996), stating,
"[A]s clarified by Behrens, Johnson [v. Jones ] does not affect our interlocutory jurisdiction in
qualified immunity cases where the denial is based even in part on a disputed issue of law." Id. at
1485.
In addition to finding that issues of material fact existed, the district court found that GJR's
complaint alleged the violation of a clearly established "right to be treated equally in its application
for a development permit." (R.2-83 at 10.) This is an issue of law disputed by the parties on appeal,
and we therefore have jurisdiction to review the district court's ruling on this issue under Behrens
and Cottrell. Cf. Bennett v. Parker, 898 F.2d 1530, 1532 (11th Cir.1990) (petitioner failed as a
matter of law to sufficiently allege a constitutional violation, therefore existence of disputed issues
of material fact does not affect interlocutory jurisdiction). However, our appellate jurisdiction in
matters such as this extends only to the legal issues surrounding the district court's denial of
defendants' motions to dismiss, i.e., issues concerning whether GJR's complaint sufficiently alleged
the violation of a clearly established right. See Marx v. Gumbinner, 855 F.2d 783, 791 n. 15, 792
n. 16 (11th Cir.1988).
7
Again, we are unsure why the district court made this determination. See supra note 6.
B. QUALIFIED IMMUNITY
1. Background Law
Defendants argue that they are entitled to qualified immunity from GJR's claims. The
defense of qualified immunity represents a balance between the need for a damages remedy to
protect the rights of citizens and the need for government officials to be able to carry out their
discretionary functions without the fear of constant baseless litigation. The defense embodies an
"objective reasonableness" standard, giving a government agent the benefit of the doubt unless her
actions were so obviously illegal in the light of then-existing law that only an official who was
incompetent or who knowingly was violating the law would have committed them. Qualified
immunity thus represents the rule, rather than the exception: "Because qualified immunity shields
government actors in all but exceptional cases, courts should think long and hard before stripping
defendants of immunity." Lassiter v. Alabama A & M University, Bd. of Trustees, 28 F.3d 1146,
1149 (11th Cir.1994).
Under the qualified immunity doctrine, government officials performing discretionary
functions8 are immune not just from liability, but from suit, unless the conduct which is the basis for
suit violates "clearly established [federal] statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73
L.Ed.2d 396 (1982). For a right to be "clearly established," previous case law must have developed
it in a concrete factual context so as to make it obvious to a reasonable government actor that his
actions violate federal law. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039,
97 L.Ed.2d 523 (1987).
8
The parties do not dispute that the defendants were acting within their discretionary authority
at all relevant times.
At this stage in the proceedings, the qualified immunity inquiry and the Rule 12(b)(6)
standard become intertwined. See Wooten v. Campbell, 49 F.3d 696, 699 (11th Cir.), reh'g denied,
58 F.3d 642 (11th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 379, 133 L.Ed.2d 302 (1995). The
Supreme Court has held that a "necessary concomitant" to the question of whether a plaintiff has
alleged a violation of a clearly established federal right is "the determination of whether the plaintiff
has asserted a violation of a constitutional right at all." Siegert v. Gilley, 500 U.S. 226, 232, 111
S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991) (emphasis added). If a plaintiff has not sufficiently
alleged a violation of any constitutional right, it is axiomatic that the plaintiff likewise has failed to
allege the violation of a "clearly established" right.
The determination of whether a complaint sufficiently states a claim is a matter of law that
we review de novo. See Harper v. Thomas, 988 F.2d 101, 103 (11th Cir.1993). In so doing, we use
the same standard as the district court, accepting all allegations as true and construing facts in a light
most favorable to the plaintiff. See, e.g., Stephens v. Department of Health & Human Servs., 901
F.2d 1571, 1573 (11th Cir.1990). However, while Fed.R.Civ.P. 8 allows a plaintiff considerable
leeway in framing its complaint, this circuit, along with others, has tightened the application of Rule
8 with respect to § 1983 cases in an effort to weed out nonmeritorious claims, requiring that a § 1983
plaintiff allege with some specificity the facts which make out its claim. See Oladeinde v. City of
Birmingham, 963 F.2d 1481, 1485 (11th Cir.1992) (citing Arnold v. Bd. of Educ., 880 F.2d 305, 309
(11th Cir.1989)). Some factual detail in the pleadings is necessary to the adjudication of § 1983
claims. This is particularly true in cases involving qualified immunity, where we must determine
whether a defendant's actions violate a clearly established right. Accordingly, when reviewing a
district court's disposition of a motion to dismiss a § 1983 claim on qualified immunity grounds, we
are guided both by the regular 12(b)(6) standard and by the heightened pleading requirement. See
id.
2. GJR's Equal Protection Claim
We conclude that GJR's complaint fails to pass the first part of the qualified immunity
inquiry. It simply fails to state an equal protection claim, even without the additional hurdle of the
heightened pleading standard. The words "equal protection" do not appear anywhere in the
complaint.9 GJR's claims for relief under § 1983 do not allege unequal treatment or discriminatory
motive on the part of the defendants. Even when viewed in the light most favorable to GJR, the
most the complaint alleges is that GJR had to jump through a few more procedural hoops than
unspecified other permit applicants before it eventually received its permit. As we conclude that the
complaint fails to allege that GJR's equal protection rights were violated at all, we need not focus
on the conduct of the individual defendants.10
All of the parties contend, and we agree, that the complaint challenges Escambia County's
zoning regulations not on their face, but as applied to GJR. Therefore, the district court's use of the
"rational basis" standard was improper; it should have determined whether GJR sufficiently alleged
(1) that it was treated differently from similarly situated persons, and (2) that the defendants
unequally applied the Escambia County zoning laws for the purpose of discriminating against GJR.
See, e.g., Snowden v. Hughes, 321 U.S. 1, 6, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944); Strickland v.
Alderman, 74 F.3d 260, 264 & n. 4 (11th Cir.1996).
9
In Eide v. Sarasota County, 908 F.2d 716 (11th Cir.1990), the case upon which the district
court relied to find the existence of a clearly established right to be treated equally in the
application for a zoning permit, we noted that the absence of the words "taking" and "eminent
domain" from a plaintiff's complaint and pre-trial stipulation foreclosed the possibility that the
plaintiff had made out a due process takings claim. See id. at 723.
10
As an additional matter, the holding in this case obviates the need to reach the question of
whether our decision in Eide v. Sarasota County, 908 F.2d 716 (11th Cir.1990), clearly
established a Fourteenth Amendment right to be treated equally in the application for a permit.
GJR's complaint fails on both counts. With regard to the "similarly situated" prong, the
complaint does not present a single instance in which a similarly situated developer was granted a
permit; it merely alleges that nameless, faceless "other" permit applicants were given better
treatment. Bare allegations that "other" applicants, even "all other" applicants, were treated
differently do not state an equal protection claim; a complaint must attempt to show in some fashion
that these "other" applicants were situated similarly to the plaintiff. In its brief GJR attempts to cure
the defects in its complaint by arguing that the complaint can be read to state that GJR was treated
differently from all other owners of C-1 property. We decline to accept such a tortured reading of
the complaint. GJR's argument is neither persuasive nor timely; a motion to dismiss attacks a
complaint on its face, and on the plain face of GJR's complaint we find no such allegations of
dissimilar treatment.
GJR's allegations of discriminatory intent are deficient in much the same way, using many
broad pejorative words to describe the defendants' intentions without giving any specifics. In its
brief GJR cites Snowden v. Hughes for the proposition that a practice need not be systematic or
long-continued to constitute discrimination. While this is true, immediately following the passage
cited in GJR's brief the Snowden Court also noted:
The lack of any allegations in the complaint ... tending to show a purposeful discrimination
... is not supplied by the opprobrious epithets "willful" and "malicious" ..., or by
characterizing [the defendant's actions] as an unequal, unjust, and oppressive administration
of the laws.... These epithets disclose nothing as to the purpose or consequence of [the
defendant's actions].... Such allegations are insufficient under our decisions to raise any
issue of equal protection of the laws....
Snowden, 321 U.S. at 10, 64 S.Ct. at 402. GJR's allegations that the defendants' actions were
"arbitrary and capricious in that [they] acted with an improper motive, without reason, or upon a
reason that was merely pretextual," (R.1-1 at 18), are uncannily similar to those the Supreme Court
rejected in Snowden, and are insufficient for much the same reason.
The district court's error in finding an equal protection claim probably stemmed at least in
part from the difficulty in deciphering GJR's complaint, which unfortunately is a classic example
of what is referred to in this circuit as a "shotgun pleading." See, e.g., Oladeinde v. City of
Birmingham, 963 F.2d 1481, 1483-84 (11th Cir.1992); Pelletier v. Zweifel, 921 F.2d 1465, 1518
(11th Cir.1991). The complaint presents scores of allegations regardless of their relevance and
incorporates them in their entirety into several counts asserting discrete claims for relief, each of
which contains several references to haphazardly described constitutional "rights." For example,
the "First Cause of Action" of the complaint refers to GJR's "general right to be free from abuses of
governmental power worthy of constitutional protection," (R.1-1 at 18), but fails to identify where
in the Constitution this particular right may be found. In another instance, GJR accuses the
defendants of "conspir[ing] to use unlawfully legal processes to prevent Plaintiff's development of
its Property." (R.1-1 at 19; emphasis added.) In analyzing the complaint, we are confronted as the
district court was with the difficulty of ascertaining the outlines of GJR's claims; it is unclear from
the complaint exactly which of GJR's constitutional rights it feels the defendants have violated.
Determining which factual allegations are relevant to which claim is practically impossible, as is
matching specific acts of the defendants to violations of GJR's rights.
We stress at this point, as we did in Oladeinde, see 963 F.2d at 1485, that the heightened
pleading requirement is the law of this circuit. The district court was far too lenient with GJR's
shotgun complaint; application of the heightened pleading standard is one way to deal summarily
with pleadings of this kind. Although the Supreme Court has held that courts may not impose a
heightened pleading requirement in § 1983 cases involving municipalities, see Leatherman v.
Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 167-68, 113 S.Ct. 1160,
1162, 122 L.Ed.2d 517 (1993), the Court specifically declined to extend its holding to cases
involving individual government officials, see id at 167, 113 S.Ct. at 1162, and we likewise decline
to do so here.
Having given up, it seems, on determining which claims GJR actually raised in its complaint,
the district court turned to Restigouche which lists four possible constitutional challenges to a
zoning: "(1) just compensation takings, (2) due process takings, (3) substantive due process, ... and
(4) equal protection." Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1211 (11th Cir.1995).
The court stated that "[a]llegations showing that any one of the four grounds may have been violated
will defeat a motion to dismiss," (R.2-83 at 7-8), and found that GJR's complaint successfully
alleged an equal protection claim. In doing so, the district court went beyond the permissible
boundaries of Fed.R.Civ.P. 8, in effect supplying GJR with an equal protection claim when none was
evident on the face of the complaint.
Rule 8 requires that federal courts give pleadings a liberal reading in the face of a 12(b)(6)
motion to dismiss. This admonition is particularly true when the parties are proceeding pro se.
Courts do and should show a leniency to pro se litigants not enjoyed by those with the benefit of a
legal education. See, e.g., Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). Yet even in the
case of pro se litigants this leniency does not give a court license to serve as de facto counsel for a
party, see Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991), or to rewrite an otherwise deficient
pleading in order to sustain an action, see Pontier v. City of Clearwater, 881 F.Supp. 1565, 1568
(M.D.Fla.1995). GJR was represented by counsel; it was not necessary for the court to read GJR's
complaint with such indulgence.
Reading complaints with this level of indulgence is particularly troublesome when
defendants raise the issue of qualified immunity. As we mentioned earlier, qualified immunity
protects officials not just from liability, but from suit and its attendant burdens, allowing them to
perform their official functions without the threat of retaliatory nuisance suits. Every successive
stage to which a suit progresses reduces the effectiveness of the defense, requiring officials to spend
time at the courthouse rather than the statehouse. The defense becomes useless if an official's
motion to dismiss covers all of the claims reasonably apparent from a plaintiff's complaint, but the
district court divines another claim by which the plaintiff may defeat qualified immunity. The
Supreme Court noted the hazards of this approach:
Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly
establish into a rule of virtually unqualified liability simply by alleging violation of
extremely abstract rights. [Harlow v. Fitzgerald 's rule] would be transformed from a
guarantee of immunity into a rule of pleading.
Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). We also
have recognized this danger, noting that "a plaintiff must not be permitted, through the use of the
kind of "shotgun' pleading tactic evident here, to strip government officials of the protection
provided by the official immunity doctrine." Marx v. Gumbinner, 855 F.2d 783, 792 (11th
Cir.1988).
"Among the cardinal principles of our Anglo-American system of justice is the notion that
the legal parameters of a given dispute are framed by the positions advanced by the adversaries, and
may not be expanded sua sponte by the trial judge." Doubleday & Co. v. Curtis, 763 F.2d 495, 502
(2d Cir.1985). A district court may not infer claims other than those that plainly appear on the face
of the complaint to defeat a defense of qualified immunity. To do so is to ignore both the heightened
pleading standard for § 1983 claims that is the law of this circuit and the Supreme Court's call for
a "firm application of the Federal Rules of Civil Procedure" in cases where qualified immunity is
asserted. Butz v. Economou, 438 U.S. 478, 508, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978). The
district court transgressed both of these principles in divining an equal protection claim from GJR's
complaint.
3. GJR's Other Claims
The district court also erred in declining to determine whether the defendants had immunity
from all of GJR's claims against them. In analyzing GJR's complaint, the district court stated that
"[a]llegations showing that any one of the four grounds [identified in Restigouche for challenging
a zoning decision] may have been violated will defeat a motion to dismiss." (R.2-83 at 7-8.) While
it is true that allegations sufficient to overcome a qualified immunity defense will keep a case in
court, this did not entitle the district court to limit its analysis to an equal protection claim. The
court should have proceeded to determine whether the individual defendants had qualified immunity
with respect to GJR's remaining claims. As we previously stated, qualified immunity is a defense
not only from liability, but from suit, which makes it important for a court to ascertain the validity
of a qualified immunity defense as early in the lawsuit as possible. See Hill v. Dekalb Reg'l Youth
Detention Ctr., 40 F.3d 1176, 1184 (11th Cir.1994). A district court's refusal to address claims
possibly barred by qualified immunity effectively denies defendants immunity from suit on those
claims. Cf. Collins v. School Bd., 981 F.2d 1203, 1205 (11th Cir.1993) (defendants entitled to
immediate appeal from denial of summary judgment based on qualified immunity, even if plaintiff
has other claims pending).
Thus, we now address the remainder of GJR's complaint. Upon further examination, the only
claims against the defendants that even come close to being sufficient are: (1) a substantive due
process claim and (2) a Fifth Amendment just compensation claim. The district court dismissed the
substantive due process claim with prejudice upon reconsideration, and GJR does not challenge this
ruling on appeal. As for the just compensation claim, in its "First Cause of Action" GJR alleges that
it has a "right not to have its property taken without payment of just compensation," (R.1-1 at 18),
after which it claims that the actions of all defendants deprived it of "rights, privileges or immunities
secured to [it] by the U.S. Constitution." (R.1-1 at 18.) This would seem to intimate a just
compensation claim against the defendants; Minshew, in fact, attempted to answer such a claim in
her brief. However, in its brief GJR asserts that the complaint does not assert a just compensation
claim against the individual defendants. See Appellee's Brief at 45. We will not discern a claim that
the plaintiff itself claims does not exist in its complaint.
GJR's "Second Cause of Action," also a § 1983 claim, alleges a conspiracy among the
defendants to violate GJR's constitutional rights. See generally Strength v. Hubert, 854 F.2d 421,
425 (11th Cir.1988) (stating theoretical basis of and requirements for stating a claim under § 1983
of conspiracy to violate constitutional rights). However, to sustain a conspiracy action under § 1983
(as distinguished from § 198511) a plaintiff must show an underlying actual denial of its
constitutional rights. See Slavin v. Curry, 574 F.2d 1256, 1262 (5th Cir.), modified on denial of
r'hrg, 583 F.2d 779 (5th Cir.1978). As we have stated, GJR's complaint does not sufficiently allege
that any of its constitutional rights have been violated. Moreover, the complaint fails to make any
particularized allegation that a conspiracy existed, another prerequisite of a § 1983 conspiracy claim.
See Phillips v. Mashburn, 746 F.2d 782, 784 (11th Cir.1984). As we can find no sufficiently pled
federal claims in the complaint that could serve to abrogate defendants' qualified immunity, it
follows that the district court erred in denying defendants' motions to dismiss on those grounds.
CONCLUSION
At oral argument, counsel for GJR stated that the events surrounding GJR's attempt to build
an RV park on Perdido Key represented the most egregious abuse of zoning law he had seen in his
30-year career. Whether or not that is so, the allegations of this complaint entitle GJR to no relief
11
As GJR does not allege that the defendants' actions stemmed from racial or class-based
animus, it can not satisfy the essential elements of a § 1985 conspiracy action. See Lucero v.
Operation Rescue, 954 F.2d 624, 628 (11th Cir.1992).
against these individual defendants. For the reasons stated in this opinion, we conclude that the
district court erred in finding that GJR's complaint sufficiently alleged a violation of its
constitutional rights. Accordingly, we reverse the district court's denial of the individual defendants'
motions to dismiss on qualified immunity grounds and remand to the district court with instructions
to enter judgment dismissing with prejudice the damage claims against the individual defendants.
REVERSED AND REMANDED.
APPENDIX
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
GJR Investments, Inc., Plaintiff,
vs.
Escambia County, A Political Subdivision of the State of Florida, Lisa Minshew, W.A. "Buck"
Lee, Wiley C. Page, and Bennie Kenney, Defendants.
Civil Action No. 95-30380/LAC.
PLAINTIFF'S ORIGINAL COMPLAINT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Plaintiff GJR Investments, Inc. ("Plaintiff") in the above-entitled and
numbered cause complaining of Defendants Escambia County, A Political Subdivision of the State
of Florida ("Escambia County"), Lisa Minshew ("Minshew"), W.A. "Buck" Lee ("Lee"), Wiley C.
Page ("Page"), and Bennie Kenney ("Kenney"), and for causes of action would respectfully show
unto this Honorable Court as follows:
I. Preliminary Statement and Jurisdiction
1. Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Defendants deprived Plaintiff
of its right under the Fourteenth Amendment to the United States Constitution to substantive due
process and its right under the Fifth Amendment to the United States Constitution not to have its
property taken without just compensation. In the alternative, and without waiver of the foregoing,
Defendant Escambia County violated Plaintiff's rights under the Fifth Amendment to the United
States Constitution by denying and delaying Plaintiff's application for a permit to develop Plaintiff's
property resulting in an impermissible taking of Plaintiff's property without just compensation.
2. Jurisdiction in this Court is proper pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1332, and
28 U.S.C. § 1343.
II. Party Plaintiff
3. Plaintiff GJR Investments, Inc. is a Texas corporation having its principal place of
business at 1240 Blalock, Houston, Texas 77055.
III. Parties Defendant
4. Defendant Escambia County is a political subdivision of the State of Florida and may be
served with process by serving Barry R. Evans, the County Administrator, and David Tucker, the
County Attorney, at 232 Palafox Place, Pensacola, Florida 32597-1591.
5. Defendant Lisa Minshew is an individual residing in Escambia County, Florida, and may
be served with process at her place of employment 600 Barracks Street, Suite 201, Pensacola,
Florida 32501.
6. Defendant W.A. "Buck" Lee is an individual residing in Escambia County, Florida, and
may be served with process at his place of residence 1540 Bayshore Lane, Pensacola, Florida 32507.
7. Defendant Wiley C. Page is an individual residing in Escambia County, Florida, and may
be served with process at his place of residence 8050 North 9th Avenue, Apt. 144, Pensacola,
Florida 32514.
8. Defendant Bennie Kenney is an individual residing in Escambia County, Florida, and may
be served with process at her place of residence 16501 Perdido Key Drive, Pensacola, Florida
32507.
IV. Statement of Facts
A. Background Facts
9. Plaintiff is a Texas corporation. Its principal offices are in Houston, Texas. Plaintiff
acquires, owns, develops and operates real property.
10. Perdido Beach Limited, a Louisiana limited partnership, and Yenavlum, Inc., a Texas
corporation, are the holders of legal title of certain real property ("Property") located on Perdido
Key, in Escambia County, Florida, which is more particularly described in Exhibit "A" attached
hereto and incorporated herein for all purposes as if fully set out verbatim. Plaintiff is the beneficial
owner of the Property. At all times relevant hereto, Perdido Beach Limited, a Louisiana limited
partnership, and Yenavum, Inc., a Texas corporation, have held legal title to the Property as agents
and nominees of Plaintiff.
11. The Property is located in a commercial zoning district ("C-1 District") under the
applicable zoning regulation, Escambia County Ordinance Code 89-6, as amended (the "Code").
Plaintiff sought to develop and operate the Property to provide rental sites or pads as temporary
living quarters for recreational vehicles (a "Campground") which under the Code is a permitted use
in a C-1 District.
12. In February, 1992, Plaintiff met with employees of the Escambia County Department of
Growth Management Services (the "Staff") concerning Plaintiff's development plan for the Property.
At such meeting and at all times relevant hereto, Defendant Page was the director and supervisor
of the Escambia County Department of Growth Management Services. During such meeting, the
Staff, at the direction and control of Defendant Page, knowingly and intentionally misrepresented
to Plaintiff the development requirements of Escambia County under the Code for land located in
a C-1 District. Plaintiff was informed by the Staff that in order to develop and operate a
Campground on the Property, Plaintiff could do so only as a special exception ("Exception") and
planned unit development ("PUD") but could not do so as a permitted use.
B. Plaintiff's First Application
13. Plaintiff, in reliance on Staff's information and requirements, filed in October, 1992, its
initial application to develop the Property as an Exception and PUD under the Code. Immediately
after filing such application, substantial public opposition arose to Plaintiff's development of the
Property as a Campground. The Staff, at the direction and control of Defendant Page, processed,
reviewed and analyzed Plaintiff's application in a discriminatory manner and more strictly than other
development applications filed in Escambia County.
14. In December, 1992, Plaintiff withdrew its initial application for development of the
Property since the Staff continued to advise Plaintiff that its development did not comply with
Escambia County's purported Exception and PUD requirements. At the time Plaintiff's initial
development application was withdrawn, the Staff, under the direction and control of Defendant
Page, prepared a Special Exceptions Criteria Worksheet and recommended denial of Plaintiff's initial
development application. To determine what additional information, if any, was required to satisfy
the purported Exception and PUD requirements, Plaintiff requested a copy of the review from
Defendant Page on at least four occasions between December, 1992, and February, 1993. Despite
the fact that Plaintiff previously paid the requisite fee to obtain such a review, Defendant Page and
the Staff refused to provide such review to Plaintiff.
C. Plaintiff's Second Application
15. On May 7, 1993, Plaintiff submitted its second application for development of the
Property to the Escambia County Department of Growth Management Services. Staff, under the
direction and control of Defendant Page, caused Plaintiff to submit its second development
application for the Property. Its second application requested two special exceptions: (1) one for
an amusement/recreational facility; and (2) another for a PUD.
16. On May 26, 1993, the Staff held a pre-development meeting to discuss Plaintiff's second
development application. Defendant Kenney, an Escambia County employee for nineteen years,
attended the May 26, 1993, pre-development meeting at the express invitation of Defendant Page.
Defendant Kenney worked as an assistant to Defendant Lee who was an Escambia County
Commissioner at all relevant times hereto. Defendant Kenney resided at Perdido Key. Defendant
Kenney had not attended a pre-development meeting during the nineteen years she worked for
Defendant Escambia, and she had never been personally notified or invited to do so until such
meeting. Defendant Page arranged for Defendant Kenney to attend the meeting knowing that (a)
she was an employee of Escambia County and worked for Defendant Lee, (b) she had no
responsibility, authority or duty in her job capacity with Escambia County which entitled her to
attend such meeting, (c) she openly opposed Plaintiff's development, (d) she lived on Perdido Key,
and (e) she was acting in concert with other property owners on Perdido Key to oppose Plaintiff's
development.
17. During the meeting, Staff disclosed its intent to recommend approval of Plaintiff's second
application but Defendant Page told Plaintiff that he recommended denial of Plaintiff's second
development application despite the fact that his own staff recommended its approval. In order to
obtain a development permit, Defendant Page told Plaintiff that Plaintiff would be required to
present its application itself to the Escambia County Zoning Board of Adjustment ("ZBA") and
convince the ZBA that Plaintiff met the criteria. No previous applicant had ever been required to
make such a presentation to the ZBA.
18. During the May 26, 1993, pre-development meeting, Defendant Minshew, an attorney
employed by Defendant Escambia County, advised the Staff to reject Plaintiff's second application.
Defendant Minshew stated that Plaintiff is an out-of-state developer and that the residents of
Escambia County opposed a Campground on Perdido Key. Defendant Minshew offered that
Plaintiff's development was a "political issue" and that Staff should protect the citizens of Perdido
Key, Florida, by denying Plaintiff's application.
19. On June 8, 1993, Defendant Minshew instructed Staff, which had previously approved
Plaintiff's second development application, to continue its review of compatibility guidelines and
support for a PUD requirement in a Coastal High Hazard Area. Defendant Minshew informed the
Staff that its involvement at the June 9, 1993, Escambia County Zoning Board of Adjustment
("ZBA") meeting would be limited and that Plaintiff had the burden to prove to the ZBA that its
project met the required criteria. Defendant Minshew additionally advised that Plaintiff's second
development application should not be presented to the ZBA because it was not complete even
though it was standard procedure for Staff to submit similarly situated applications to the ZBA for
approval.
D. The ZBA Meeting
20. On June 9, 1993, the ZBA met to consider, among other items, Plaintiff's second
development application. On that date, but prior to the meeting, Robert Koncar, the Escambia
County Administrator, learned of Staff's approval of Plaintiff's application and criticized Defendant
Page for allowing the Staff to make such recommendation which is considered to be politically
incorrect.
21. During the June 9, 1993, ZBA hearing, Defendants consistently violated Plaintiff's due
process and property rights. For example:
a. the ZBA improperly considered evidence which was comprised of petitions signed by Escambia
County residents who opposed Plaintiff's development. These petitions were irrelevant and
highly prejudicial because they did not address the factors needed to satisfy PUD criteria.
Such petitions became part of the "record" transmitted on appeal of Plaintiff's second
development application to the Escambia County Board of County Commissioners;
b. Plaintiff was required to make a presentation to the ZBA to prove that its project met all
applicable criteria. No other applicant, before or since, had been required to do so. After
opening remarks, Plaintiff offered to address each of the eleven criteria items to the ZBA,
at which time the ZBA assured Plaintiff that such would not be necessary;
c. After Plaintiff's presentation, Staff made a presentation to the ZBA and recommended contingent
approval of Plaintiff's second development application. During Staff's presentation,
Defendant Minshew repeatedly advised the Staff member making the presentation to the
ZBA that such Staff member failed to mention that Plaintiff's development had been
evaluated as a PUD in a Coastal High Hazard Area. The Staff member, at the insistence of
Defendant Minshew and fearful of making a mistake, stated to the ZBA that the project was
evaluated as a PUD in a Coastal High Hazard Area. Defendant Minshew directed the Staff
member to make such statement despite the fact that Defendant Minshew knew such
statement was false and that no requirements existed for a PUD in a Coastal High Hazard
Area;
d. After the Staff presentation, Defendant Lee, an Escambia County Commissioner, spoke against
Plaintiff's project. Defendant Kenney worked for Defendant Lee. Defendant Lee did not
reside or own property on Perdido Key, and Perdido Key was not within Defendant Lee's
electoral district. Defendant Lee spoke against Plaintiff's development despite the fact that
Defendant Lee in his quasi-judicial authority as a member of the Escambia County Board
of County Commissioners ("BCC") would hear Plaintiff's appeal from the ZBA;
e. Numerous speakers offered personal opinions at the ZBA hearing and successfully offered into
the record irrelevant, unreliable documents and photographs to confuse and prejudice the
members of the ZBA. These documents and photographs became part of the record and were
transferred to the BCC for appellate review; and
f. Following the presentations and comments, the ZBA proceeded to make its decision. Instead of
lawfully conducting their business in public, members of the ZBA and Defendant Minshew
left the hearing room and engaged in ex parte communications. Following the ex parte
meeting with Defendant Minshew, the ZBA summarily denied Plaintiff's second application
for development.
22. Following the June 9, 1993, ZBA hearing, Defendant Minshew continued to instruct the
Staff that since the Property is situated in a Coastal High Hazard Area, Plaintiff could only develop
its Property by complying with the requirements for a PUD. Defendant Minshew's efforts to
supplement the record of the June 9, 1993, ZBA hearing persisted despite the fact that the official
record was closed at the conclusion of the June 9, 1993, ZBA meeting.
23. Plaintiff timely appealed to the BCC from the ZBA's June 9, 1993, decision denying
Plaintiff's second development application on the Property. In July, 1993, Plaintiff met with Staff
and inquired about the appeal process and alternative resolutions of the dispute over Plaintiff's
second development application. Defendant Minshew attended the meeting and although the Staff
sought to be conciliatory, Defendant Minshew told Plaintiff to hire an attorney since Defendant
Escambia County did not mind, and was not afraid of, a lawsuit with Plaintiff over its appeal.
E. The Soil Analysis
24. In July, 1993, during the pendency of Plaintiff's appeal to the BCC, one of the Perdido
Key residents leading the public opposition to Plaintiff's development approached and asked an
official from the U.S. Department of Agriculture Soil Conservation Service to conduct a soil
analysis of the Property. Such resident was told that only a County Commissioner or landowner is
authorized to order a soil analysis. Thereafter, the Perdido Key resident contacted Defendant Lee's
office and requested that Defendant Lee's aide, Defendant Kenney, ask Defendant Lee to order a soil
analysis. Defendant Kenney, aware that such resident actively opposed Plaintiff's development,
agreed to use her public office to assist the Perdido Key resident in obtaining a soil analysis of the
Property.
25. On July 12, 1993, Defendant Kenney sent a memo from Defendant Lee to the U.S.
Department of Agriculture Soil Conservation Service requesting a soil analysis on the Property. On
the following day, Defendant Lee received the original soil analysis on the Property. In addition,
a copy of the soil analysis was furnished to each of the other Escambia County Commissioners. By
July 29, 1993, the date the appeal on the Petitioner's second application for development was heard,
each member of the Escambia County Board of County Commissioners had in their possession the
soil test obtained by Defendant Lee and Defendant Kenney in violation of Plaintiff's rights. Such
test was not part of the official record and could not lawfully have been considered by the BCC.
26. On July 19, 1993, the Escambia County Administrator, Robert Koncar, sent a memo with
letters from Perdido Key residents to Defendant Page, urging Defendant Page to use the letters to
oppose Plaintiff's development during the July 29, 1993, BCC meeting. Koncar intended that the
letters should be considered by the BCC as part of the record, even though such letters were received
after the June 9, 1993, ZBA meeting and after the close of the record before the ZBA. Despite
receiving copies of such memo, neither Defendant Minshew nor Escambia County Attorney, David
Tucker, advised the BCC not to consider the letters. Defendant Page subsequently furnished the
letters to the BCC as part of the record. On July 27, 1993, two days before the BCC hearing,
Defendant Page sent a memo to the members of the BCC inviting them to contact him to find out
what residents of Perdido Key were saying about Plaintiff's development project.
27. In accordance with the Escambia County Ordinance Code 89-6, Article VIII, Section 2,
Paragraph 6, the ZBA was required to issue Findings of Fact ("Findings") and Conclusions of Law
("Conclusions") within 15 days after the June 9, 1993, ZBA hearing. On July 14, 1993, the ZBA
held a meeting. One purpose of the meeting was to adopt and ratify the Findings and Conclusions
on Plaintiff's second development application. At such meeting the ZBA voted to delay ratification
of the Findings and Conclusions. As a result, Plaintiff was forced to prosecute and appeal to the
Escambia BCC without ever having seen a final order from the ZBA.
F. The July 29, 1993 BCC Hearing
28. The BCC was scheduled to hear the appeal from the ZBA's denial of Plaintiff's second
development application on July 29, 1993. Prior to July 29, 1993, Defendant Minshew privately met
with County Commissioner Willie Junior. At that time, Defendant Minshew drafted a motion
upholding the ZBA's denial of Plaintiff's second development application. Although Defendant
Minshew drafted the motion prior to the BCC hearing on Plaintiff's second development application,
the motion provided only for denial of Plaintiff's appeal. Further, Defendant Minshew failed to
maintain copies of the hand-written and typed versions of the motion prepared for County
Commissioner Willie Junior. Defendant Minshew additionally met with County Commissioner
Steve Del Gallo prior to the July 29, 1993, BCC meeting to discuss Plaintiff's development
application.
29. On July 29, 1993, the BCC heard the appeal from the ZBA's denial of Plaintiff's second
development application. The record provided by Defendant Page to the BCC contained incomplete
and inaccurate information. The record included irrelevant and prejudicial evidence admitted by the
ZBA in the form of petitions and letters from opponents to Plaintiff's project. In addition, no final
Findings and Conclusions from the ZBA were in existence. Instead, Defendant Minshew read aloud
an unratified and unadopted draft of the Findings and Conclusions with full knowledge that the ZBA
had never approved them. The Findings and Conclusions read by Defendant Minshew to the BCC
substantially differed from the Findings and Conclusions ultimately ratified and adopted by the ZBA
on September 8, 1993.
30. At the July 29, 1993, BCC hearing, Defendant Lee presented numerous letters from
Perdido Key residents opposed to Plaintiff's project. Defendant Lee's actions were improper, among
other reasons, because Defendant Lee should not have taken any action with respect to Plaintiff's
second development application after publicly speaking out against such application at the June 9,
1993, ZBA meeting; and no new factual matters should have been introduced into the record after
June 9, 1993. When Plaintiff objected to Defendant Lee's conduct, Defendant Lee recused himself
from the appeal.
31. During the July 29, 1993, BCC meeting, Defendant Minshew knowingly and
intentionally misstated to the BCC the law relating to the requirements for a PUD in a Coastal High
Hazard Area. Defendant Minshew knowingly and intentionally misled the BCC to believe that a
procedure existed for developing land as a PUD in a Coastal High Hazard Area. Defendant Minshew
did this despite the fact that Staff had thoroughly researched this issue, at Defendant Minshew's
direction, and informed her that no such procedure existed under Florida law, practice or procedure.
32. The BCC subsequently denied Plaintiff's appeal.
G. Findings and Conclusions
33. The Code required that the ZBA furnish Plaintiff with Findings and Conclusions within
15 days after the June 9, 1993, ZBA hearing. Following the June 9, 1993, ZBA hearing, Defendant
Minshew assigned the task of drafting the Findings and Conclusions to a member of the Staff. The
Staff member was instructed to draft Findings and Conclusions and forward them to Defendant
Minshew for revision. Defendant Minshew reviewed, revised and returned each such draft to the
Staff for completion.
34. After such process had been repeated six times, the Staff ceased to draft the Findings and
Conclusions because Defendant Minshew continued to include false and misleading statements in
the Findings and Conclusions. For example:
a. The Staff's draft of the Findings and Conclusions contained only one special exception, the one
relating to a recreational use in a C-1 Zoning District. Defendant Minshew edited the
Findings and Conclusions to state that Plaintiff failed to meet the criteria for a PUD in a
Coastal High Hazard Area. Defendant Minshew included this statement despite the fact that
Defendant knew that no requirements existed for a PUD in a Coastal High Hazard Area;
b. Defendant Minshew included the false statement that the Staff had reviewed Plaintiff's project and
found Plaintiff's project to be inconsistent with the Comprehensive Plan;
c. Defendant Minshew included the false statement that the Staff, by letter dated June 4, 1993,
informed Plaintiff that its development application was inconsistent with the Comprehensive
Plan. A letter was sent, however, by
d. Defendant Minshew deleted two true statements from the Findings and Conclusions relating to
Plaintiff' s traffic and solid waste approvals; and
e. Defendant Minshew incorrectly stated in the Findings and Conclusions that Plaintiff failed to
meet its burden of proof entitling it to the special exception.
35. The ZBA met on August 11, 1993, to consider approval of the Findings and Conclusions.
Although the Staff's standard procedure was to notify an applicant of such a meeting, no notice was
given to Plaintiff.
36. At the August 11, 1993, ZBA meeting, no transcript of the June 9, 1993, hearing was
furnished. Despite the efforts and attempts by Defendant Minshew to cause the ZBA to approve her
proposed Findings and Conclusions, several members of the ZBA declined to do so because they
continued to contain incorrect findings of fact and conclusions of law. Defendant Escambia County
did not furnish Plaintiff final Findings and Conclusions until December 9, 1993, six months after
the June 9, 1993, hearing.
H. Complaint and Petition for Writ of Certiorari
37. Plaintiff timely appealed the BCC ruling which upheld the ZBA's denial of Plaintiff's
second development application by filing its Complaint and Petition for Writ of Certiorari in Case
No. 93-1327-CA-01, styled GJR Investments, Inc. vs. Escambia County, The Board of County
Commissioners of Escambia County, Zoning Board of Adjustment of Escambia County, in the
Circuit Court, First Judicial Circuit in and for Escambia County, Florida (the "Certiorari Lawsuit").
I. Plaintiff's Third Development Application
38. On August 5, 1993, GJR submitted its third development application to develop a
Campground on the Property. Plaintiff's third development application did not seek any special
exceptions, but sought to develop the Property as a permitted use in a C-1 District. By letter dated
August 23, 1993, Defendant Page informed Plaintiff that Plaintiff's Third Development Application
had been administratively "rejected."
J. The Declaratory Judgment Lawsuit
39. On September 16, 1993, Plaintiff filed its Petition for Declaratory Relief in Case No. 93-
1442-CA-01, styled GJR Investments, Inc. vs. Escambia County, a Political Subdivision of the State
of Florida, in the Circuit Court, First Judicial Circuit in and for Escambia County, Florida (the
"Declaratory Judgment Lawsuit"). In that suit, Plaintiff asked the Court to declare that development
of the Property as a "campground," as requested by Plaintiff's third development application, was
a permitted use under the Code. Plaintiff additionally requested the Court to declare that Plaintiff
was entitled to have its third development application approved without delay.
40. In March, 1994, Plaintiff and Defendant Escambia County reached an agreement
whereby Plaintiff would submit a fourth development application to develop a Campground on the
Property as a permitted use in a C-1 District. On or about March 22, 1994, Plaintiff submitted its
fourth development application. Thereafter, on or about March 30, 1994, Staff approved Plaintiff's
fourth development application.
41. On or about June 8, 1994, the ZBA approved Plaintiff's fourth development application
for development of a Campground on the Property.
42. Plaintiff subsequently dismissed both the Certiorari Lawsuit and the Declaratory
Judgment Lawsuit.
L. Damages
43. As a result of the unlawful conduct of Defendants, Plaintiff incurred unnecessary (a)
consulting and engineering fees, (b) attorneys' fees, (c) taxes and insurance premiums on the
Property from June 9, 1993, to June 8, 1994, and additionally suffered lost profits and increased
development and ownership costs.
V. First Cause of Action—42 U.S.C. § 198344. Plaintiff hereby reasserts and realleges Paragraph 9 through Paragraph 43 as if such
paragraphs were fully set forth at length.
45. At all times herein, the acts of the Defendants, as contained in Paragraph 9 through
Paragraph 43, were committed under color of state law.
46. The actions of Defendant Minshew, Defendant Lee, Defendant Kenney, and Defendant
Page, as set forth above, were committed by such Defendants even though the law establishes the
contours of Plaintiff's rights so clearly that a reasonable official would have understood that such
acts were unlawful.
47. Defendant Escambia County, acting by and through the BCC and the ZBA as set forth
above, which possessed and exercised final authority on behalf of Defendant Escambia County with
respect to the issuance of Plaintiff's application for a development permit, committed acts and
subscribed to official policies or customs in violation of Plaintiff's rights.
48. Plaintiff, by virtue of its ownership of the Property and by virtue of its good faith reliance
and change of position based upon Defendant Escambia County's zoning of the Property and land
use regulations, has a property interest worthy of constitutional protection. Plaintiff also has a
general right to be free from abuses of governmental power worthy of constitutional protection.
Plaintiff further has a right not to have its property taken without payment of just compensation.
49. Defendants' actions were arbitrary and capricious in that Defendants acted with an
improper motive, without reason, or upon a reason that was merely pretextual.
50. The actions of the Defendants deprived Plaintiff of rights, privileges, or immunities
secured to Plaintiff by the U.S. Constitution in violation of 42 U.S.C. § 1983.
51. As a result of the unlawful acts of Defendants, Plaintiff suffered actual damages in excess
of $500,00.00.
52. The unlawful acts of Defendants, as set forth above, were committed intentionally, with
reckless indifference, or with malice to the federally protected rights of Plaintiff. Plaintiff is
therefore entitled, pursuant to 42 U.S.C. § 1983, to recover exemplary damages in the amount of
$5,000,000.00.
53. Plaintiff additionally requests that the Court, in its discretion, award Plaintiff reasonable
and necessary attorney's fees as part of the costs of this case pursuant to 42 U.S.C. § 1988.
VI. Second Cause of Action—Conspiracy to Violate 42 U.S.C. § 198354. In the alternative, and without waiver of the foregoing, Plaintiff asserts the following.
55. Plaintiff hereby reasserts and realleges Paragraph 9 through Paragraph 43 as if such
paragraphs were fully set forth at length.
56. At all times herein, the acts of the Defendants, as contained in Paragraph 9 through
Paragraph 43, were committed under color of state law. Defendant Escambia County, acting by and
through the BCC and the ZBA as set forth above, which possessed and exercised final authority on
behalf of Defendant Escambia County with respect to the issuance of Plaintiff's application for a
development permit, committed acts and subscribed to official policies or customs in violation of
Plaintiff's rights.
57. Defendants, together with other unknown persons, conspired to use unlawfully legal
processes to prevent Plaintiff's development of its Property for the purposes, among others, of
protecting Defendants' political constituents, advancing Defendants' political ambitions and
aspirations, and promoting Defendants' other self interests. In furtherance of such conspiracy,
Defendants, along with other unknown persons, committed overt acts jointly or in concert in
furtherance of such conspiracy.
58. Plaintiff has a right to be free from abuses of governmental power worthy of
constitutional protection.
59. Defendants acted with an improper motive, without reason, or upon a reason that was
merely pretextual to delay and prevent Plaintiff from obtaining a permit to develop its Property.
60. The actions of the Defendants deprived Plaintiff of the rights, privileges, or immunities
which are secure to Plaintiff under the U.S. Constitution in violation of 42 U.S.C. § 1983.
61. As a result of the unlawful acts and conspiracy committed as aforesaid by Defendants,
Plaintiff suffered actual damages in excess of $500,000.00
62. The unlawful acts and conspiracy of Defendants, as set forth above, were committed
intentionally, with reckless indifference, or with malice to the federally protected rights of Plaintiff.
Plaintiff is therefore entitled, pursuant to 42 U.S.C. § 1983, to recover exemplary damages in the
amount of $5,000,000.00.
63. Plaintiff additionally requests that the Court, in its discretion, award Plaintiff reasonable
and necessary attorney's fees as part of the costs of this case pursuant to 42 U.S.C. § 1988.
VII. Third Cause of Action—Fifth Amendment Taking
64. In the alternative, and without waiver of the foregoing, Plaintiff asserts the following.
65. Plaintiff hereby reasserts and realleges Paragraph 9 through Paragraph 43 as if such
paragraphs were fully set forth at length.
66. Defendant Escambia County, acting by and through the BCC and the ZBA as set forth
above, which possessed and exercised final authority on behalf of Defendant Escambia County with
respect to the issuance of Plaintiff's application for a development permit, committed acts and
subscribed to official policies or customs in violation of Plaintiff's rights.
67. The actions of Defendant Escambia County, by and through its employees and elected
officials, including Defendant Minshew, Defendant Lee, Defendant Kenney, and Defendant Page,
deprived Plaintiff of the immediate use of the Property, thereby effectively denying Plaintiff the
economic benefits of the Property.
68. Such actions constitute a temporary taking of Plaintiff's property from June 9, 1993, to
June 8, 1994, without payment of just compensation to Plaintiff in violation of the Fifth Amendment
as made applicable to the states by the Fourteenth Amendment.
69. As a result of Defendant Escambia County's actions, by and through its employees and
elected officials, including Defendant Minshew, Defendant Lee, Defendant Kenney, and Defendant
Page, Plaintiff suffered actual damages in excess of $500,000.00.
70. Plaintiff additionally requests that the Court, in its discretion, award Plaintiff reasonable
and necessary attorney's fees as part of the costs of this case.
VIII. Jury Demand
71. Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff hereby demands
a trial by jury.
WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that upon final trial, Plaintiff
have judgment of and from the Defendants, jointly and severally, as follows:
a. compensatory damages in the amount of $500,000.00;
b. exemplary damages in the amount of $5,000,000.00;
c. all reasonable and necessary attorney's fees and all costs incurred herein;
d. all pre-judgment and post-judgment interest to which Plaintiff is entitled;
e. such other and further relief, both at law and in equity, to which Plaintiff may show itself justly
entitled to receive.
Respectfully submitted,
By: /s/ Marvin D. Nathan
Marvin D. Nathan
Texas Bar No. 14817000
Robert S. DuBoise
Texas Bar No. 00783990
2700 Post Oak Blvd., Suite 2500
Houston, Texas 77056-5705
713.960.0303
Fax: 713.892.4800
OF COUNSEL:
NATHAN, WOOD & SOMMERS
A Professional Corporation
2700 Post Oak Blvd., Suite 2500
Houston, Texas 77056-5705
713.960.0303
Fax: 713.892.4800
-and-
/s/ Paul M. Harden
Paul M. Harden
Florida Bar No. 192557
2601 Gulf Life Tower
Jacksonville, Florida 32207
904.396.5731
ATTORNEYS FOR PLAINTIFF GJR INVESTMENTS, INC.
OF COUNSEL:
LAW OFFICES OF PAUL M. HARDEN
2601 Gulf Life Tower
Jacksonville, Florida 32207
904.396.5731
PLAINTIFF'S EXHIBIT "A"
LEGAL DESCRIPTIONS
TRACT I:
A portion of Section 35, Township 3 South, Range 32 West, Escambia County, Florida,
being more particularly described as follows:
Commence at the Northwest corner of Government Lot 2 of the aforesaid Section 35; thence
go South 88°30N59O East along the North line of the aforesaid Government Lot 2 a distance of
500.00 feet; thence go South 01°3N12O West a distance of 649.10 feet to a point of intersection with
the Southerly right-of-way line of New Gulf Beach Highway (S.R. # 292, 100N R/W) and the Point
of Beginning; thence run North 65°5N48O East along said Southerly right-of-way line a distance of
456.43 feet to the beginning of a curve concave Northwesterly and having a radius of 1196.28 feet;
thence go Northeasterly along said Southerly right-of-way line and curve having a radius of 1196.28
feet, an arc distance of 86.43 feet (CH = 86.41N CH BRG = North 63°49N38O East); thence departing
said Southerly right-of-way line, go South 01°32N12O West a distance of 448.76 feet to point on the
state of Florida Department of Natural Resources Coastal Construction setback line as recorded in
Plat Book 13 at Page 23 of the Public Records of Escambia County, Florida, said point hereinafter
referred to as a point "A", thence continue South 01°32N12O West a distance of 325 feet more or less
to the mean high water line of the Gulf of Mexico; thence meander Westerly along said mean high
water line to a point of intersection with a line passed through the Point of Beginning and having
a bearing of South 01°32N12O West; thence go North 01°32N12O East along said line passed through
the Point of Beginning a distance of 335 feet more or less to a point on the aforesaid coastal
construction setback line, said point lying South 82°5O24O West a distance of 494.55 feet from the
aforesaid Point "A"; thence continue North 01°32N12O East a distance of 290.83 feet to the Point
of Beginning.
TRACT II:
A portion of Section 35, Township 3 South, Range 32 West, Escambia County, Florida,
being more particularly described as follows:
Commence at the Northwest corner of Government Lot 2 of the aforesaid Section 35; thence
go South 88°30N59O East along the North line of the aforesaid Government Lot 2 a distance of
500.00 feet to the Point of Beginning; thence continue South 88°30N59O East a distance of 793.71
feet to a point of intersection with the curved Northerly right-of-way line of New Gulf Beach
Highway (S.R. # 292, 100N R/W), being concave Northwesterly and having a radius of 1096.28 feet;
thence go Southwesterly along said curved right-of-way line an arc distance of 564.98.feet (CH =
558.75N CH BRG = South 51°07N7O West) to the Point of Tangency; thence continue along said
Northerly right-of-way line South 65°53N8O West a distance of 408.44 feet; thence departing Said
Northerly right-of-way line go North 01°32N12O East a distance of 538.17 feet to the Point of
Beginning.