Ralph Irwin v. Miami-Dade County Public Schools

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11522 ELEVENTH CIRCUIT
OCTOBER 4, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 06-23029-CV-MGC
RALPH IRWIN,
Plaintiff-Appellant,
versus
MIAMI-DADE COUNTY PUBLIC SCHOOLS,
MIAMI-DADE COUNTY SCHOOL BOARD,
FLORIDA INTERNATIONAL UNIVERSITY,
FLORIDA DEPARTMENT OF LAW ENFORCEMENT,
FLORIDA DEPARTMENT OF EDUCATION,
et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 4, 2010)
Before CARNES, BARKETT, and HULL, Circuit Judges.
PER CURIAM:
Ralph Irwin, proceeding pro se, has sued thirty-seven entities and
individuals who can be grouped as follows: (a) the Miami-Dade County Public
Schools, superintendent Rudolph Crew, and seven other school officials; (b)
Florida state agencies including the Department of Law Enforcement (FDLE), the
Department of Education (FDOE), the Department of Labor (FDOL), and the
Commission on Human Relations (FCHR), along with eight individual state
officials; (c) Florida International University’s Board of Trustees, and four
individual FIU officials; and (d) the federal Department of Education (USDOE),
the Equal Employment Opportunity Commission, eight individual federal officials,
and the United States itself. Irwin’s grievances against these defendants, which he
spells out in a fifty-count complaint alleging numerous statutory and constitutional
violations, stem from his difficulties getting hired as a teacher in Florida because of
his arrest record. The district court entered final judgment against Irwin on all
counts, resolving some of them on motions to dismiss and the rest on summary
judgment.
Raising seventy-four issues on appeal, Irwin seeks reversal of that judgment,
challenges a variety of procedural rulings by the district court, argues that the
2
district judge should have recused herself, and seeks sanctions against the
defendants. We find no reversible error, and we affirm in all respects.
Irwin’s troubles began in 1998 when, during a heated argument with his 19-
year-old daughter, he slammed a door and accidentally cut her foot. She called
911, and police arrested Irwin for misdemeanor battery. The state dropped the
charge on the daughter’s request, and the record of Irwin’s arrest was expunged
pursuant to Fla. Stat. § 943.0585. Under Florida law, a person with an expunged
record may lawfully deny the existence of the underlying arrest or conviction,
except when seeking a teacher’s license or applying for employment at a school or
child care facility. Fla. Stat. § 943.059(4)(a)(6).
In 2002, on his application to teach in the Miami-Dade school system, Irwin
answered “No” to a question that asked whether he “ever had a sealed or expunged
record as a result of a criminal court proceeding.”1 When a background check with
FDLE revealed the existence of the sealed record, the school system denied Irwin’s
bid for employment on the ground that he had “falsified” his application, and
reported the matter to FDOE. After its own investigation, FDOE ultimately
cleared Irwin of wrongdoing but put a letter in his file warning that a “future
1
Although the application clearly instructed that “[s]ealed or expunged records must be
reported,” Irwin believed then and still insists today that his arrest did not count as a “criminal
court proceeding” because the matter was dismissed before he actually set foot in a courtroom.
3
violation” of professional standards could threaten his teaching certificate. The
combination of the arrest record and the warning letter, Irwin says, effectively
blacklisted him from teaching in Florida. In 2003 and 2004 several different
school programs, including one run by FIU, either rejected his job applications
outright, or hired him but then fired him as soon as the information in his record
came to light. Irwin filed complaints with the FCHR, the EEOC, and both state
and federal Departments of Education, but did not wait for a right-to-sue letter
before bringing this action. Because those agencies did not resolve his complaints
to his satisfaction, they and several of their officials are also defendants in Irwin’s
lawsuit.
Irwin contends that it was illegal to ask him about his expunged arrest
record, and that disclosure of the record violated his rights to privacy, equal
protection, and due process. Irwin, a white male in his fifties, also alleges that the
schools discriminated against him on the basis of his race, sex, and age. He asserts
claims under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 338, 91 S.Ct 1999 (1971); the First, Fifth, and Fourteenth
Amendments; 42 U.S.C. § 1983; Title VII; the Age Discrimination in Employment
Act; the Federal Tort Claims Act; and various Florida statutes.
For many of his seventy-four claims of error on appeal, Irwin offers nothing
4
more than summary “issue statements” with no explanation as to how or why the
district court erred. In some cases he simply cites by docket number to the over
three thousand pages’ worth of pleadings he filed in the district court. When even
a pro se appellant makes only passing reference to an issue and fails to argue it on
the merits, the issue is deemed waived. See Farrow v. West, 320 F.3d 1235, 1242
n.10 (11th Cir. 2003); see also Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.
2008); Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002). Irwin’s bare
citations to the record do not explain his “contentions and the reasons for them,”
and thus do not comply with Fed. R. App. P. 28(a)(9).2 Moreover, litigants may
not incorporate by reference arguments from pleadings below in order to evade our
page and space limitations on appellate briefing. See Four Seasons Hotels And
Resorts v. Consorcio Barr S.A., 377 F.3d 1164, 1167 n.4 (11th Cir. 2004).
Other issues raised by Irwin are moot, because he seeks factual
determinations on questions that can be and have been resolved as a matter of law;
or are nonjusticiable, because he asks us to construe the meaning of various federal
and state statutes that would not carry private rights of action even if they were
violated.3 We will not decide questions “that do not matter to the disposition of a
2
Issues 3–4, 13–17, 25, 27, 29–33, 37–40, 48–49, 53–58, 62–64, 66, and 68–72 are
waived for lack of argument.
3
Issues 2, 5, 6–11, 18, 34–35, 41–47, 50–51, and 61 are either moot or nonjusticiable.
5
case.” Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1216
(11th Cir. 2009). Two other arguments—that the defendants should be sanctioned
for unspecified discovery violations, and that the district judge should have recused
herself for bias—need not be considered because they are raised for the first time
on appeal. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331
(11th Cir. 2004). And they are meritless anyway.
The district court properly disposed of all of Irwin’s other claims. The court
correctly dismissed Irwin’s claims against the federal agencies and the individual
federal defendants. Irwin has identified no basis for waiver of sovereign immunity
that would permit jurisdiction over his claims against the agencies or against the
United States itself. See F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996,
1000 (1994). There is no cause of action against the EEOC for its alleged
mishandling of a discrimination complaint against a third party. Smith v. Casellas,
119 F.3d 33, 34 (D.C. Cir. 1997); Gibson v. Mo. Pac. R.R. Co., 579 F.2d 890, 891
(5th Cir. 1978).4 There is no underlying state-law tort to support a claim under the
Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1). A Bivens action against
individual federal officials is appropriate only if there is no other adequate remedy.
4
In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as
binding precedent the decisions of the former Fifth Circuit handed down before October 1, 1981.
6
See Lee v. Hughes, 145 F.3d 1272, 1275 (11th Cir. 1998). The remedy for
employment discrimination is to sue the discriminating employer, not the
investigating agency. Even if a cause of action could be asserted, the individual
defendants are protected by qualified immunity because nothing they did or failed
to do violated any constitutional right of Irwin’s, let alone a clearly established
one. See Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009).
Irwin’s claims against Florida International University, Florida’s
Commission on Human Rights, and its Departments of Education, Labor, and Law
Enforcement are barred by the Eleventh Amendment, as are his claims against
individual state defendants in their official capacities. Scott v. Taylor, 405 F.3d
1251, 1255 (11th Cir. 2005). Furthermore, the state agencies are not “persons”
who can be sued under § 1983. See Edwards v. Wallace Cmty. Coll., 49 F.3d
1517, 1524 (11th Cir. 1995). Qualified immunity protects the state officials from
liability in their individual capacities, because they did not violate any clearly
established constitutional right of Irwin’s. See Oliver, 586 F.3d at 904. Irwin has
no constitutionally protected privacy interest in the confidentiality of his arrest
record, especially where—as here—state law not only permits but indeed requires
its disclosure. See Fla. Stat. § 943.059(4)(a)(6); cf. Tosh v. Buddies Supermarkets,
Inc., 482 F.2d 329, 332 (5th Cir. 1973) (the Constitution does not bar a state
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agency from releasing arrest records to those who have a “legitimate need” for the
information).
Irwin’s Title VII claim against the Miami-Dade Schools was properly
dismissed. Waiver of the exhaustion requirements, as the district court pointed out,
would have been pointless because there was no evidence supporting Irwin’s
claims of discrimination. Irwin never identified any women or minority applicants
who were hired as teachers despite failing to disclose an arrest record. See
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (Title VII plaintiff must
show comparator employees were treated more leniently despite similar
misconduct). Nor did he allege, as required for an ADEA claim, that he was
passed over in favor of a younger person. See Chapman v. AI Transp., 229 F.3d
1012, 1024 (11th Cir. 2000) (en banc). The lack of evidence for discrimination is
likewise fatal to Irwin’s § 1983 claims against the school board and the individual
school defendants. Irwin cannot establish an equal protection violation because he
failed to show that others similarly situated were treated differently. His due
process rights were not violated because, whether as a job applicant or as a newly
hired probationary employee, he enjoyed no state-law property right in his
employment. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576–78,
92 S.Ct. 2701, 2708–10 (1972); McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir.
8
1994) (en banc). Irwin’s First Amendment rights were not violated because his
speech, which concerned only his own employment grievances, did not address a
matter of public concern and was not constitutionally protected. See Tindal v.
Montgomery County Comm’n, 32 F.3d 1535, 1539–40 (11th Cir. 1994). In any
case, Irwin has not shown that any defendant prevented him from airing those
grievances or retaliated against him for doing so. Irwin’s various state-law tort
claims also fail because he has not established that any defendant breached any
duty owed to him.
The district court properly granted either dismissal or summary judgment
against Irwin on all of his claims against all defendants, and we find no reversible
error.5
AFFIRMED.
5
The district court also did not err in denying Irwin leave to amend his complaint, given
that the additional claims he sought to add would have failed as a matter of law for several of the
same reasons discussed above.
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