GJR Investments v. Cty. of Escambia

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 96-2290
________________________
D. C. Docket No. 95-30380/LAC
GJR INVESTMENTS, INC.,
Plaintiff-Appellee,
versus
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.
________________________
No. 96-2321
________________________
D. C. Docket No. 95-30380-CIV-LAC
GJR INVESTMENTS, INC.
Plaintiff-Appellee,
versus
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.
________________________
Appeals from the United States District Court
for the Northern District of Florida
_________________________
(January 5, 1998)
Before HATCHETT, Chief Judge, 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
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.
1
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” 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
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.)
2
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 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:
3
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
4
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
5
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.
6
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
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 (1994).
7
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 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
8
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 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
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 (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.
9
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
10
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
11
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, ___ U.S. ___, 116 S.
Ct. 834 (1996) (limiting Johnson v. Jones, 515 U.S. 304, 115 S. Ct. 2151 (1995)),
rejecting the contention that the existence of material issues of fact in itself bars
7
Again, we are unsure why the district court made this determination. See supra note 6.
12
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).
13
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
8
The parties do not dispute that the defendants were acting within their discretionary
authority at all relevant times.
14
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (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
(1986).
At this stage in the proceedings, the qualified immunity inquiry and the Rule
12(b)(6) standard become intertwined. See Wooton 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 (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
(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
15
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”
16
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
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.
17
GJR. See, e.g., Snowden v. Hughes, 321 U.S. 1, 6, 64 S. Ct. 397, 401 (1944);
Strickland v. Alderman, 74 F.3d 260, 264 & n.4 (11th Cir. 1996).
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.
18
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
19
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 (1993), the Court specifically declined to extend its holding to cases
20
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
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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 (1986). We also
have recognized this danger, noting that “a plaintiff must not be permitted, through
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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 (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
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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
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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
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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).
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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 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.
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