Ross Scopellitti v. City of Tampa

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15394
Non-Argument Calendar
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D.C. Docket No. 8:14-cv-00949-MSS-TGW
ROSS SCOPELLITTI,
individually,
GREENPARK RESIDENCES, INC.,
a Florida corporation,
Plaintiffs-Appellants,
versus
CITY OF TAMPA,
a municipal corporation,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(January 24, 2017)
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Before WILSON, ROSENBAUM, and DUBINA, Circuit Judges.
PER CURIAM:
Appellants Ross Scopelliti and GreenPark Residences, Inc. (collectively
referred to as “GreenPark”) appeal the district court’s order granting summary
judgment in favor of Appellee, the City of Tampa (“the City”), on GreenPark’s
claims for inverse condemnation, violation of the Fair Housing Act (“FHA”),
§1983 deprivation of procedural due process, abuse of process, and selective
enforcement. After reviewing the briefs and the record, we affirm.
I. BACKGROUND
A. Facts
GreenPark Residences, Inc. is a Florida corporation that operates and
maintains an 18-unit mobile home park in Tampa, Florida. Scopelliti is the
president and sole shareholder of GreenPark Residences, Inc. In October 2011, the
City cited eight of GreenPark’s units for violations of the City’s Code of
Ordinances pertaining to property maintenance and structural standards (“the
Code”). These violations included failure to provide heat; broken and unrepaired
steps, handrails, toilets, walls, and windows; roof leaks; missing smoke detectors;
and faulty electrical wiring. In late October 2011, Scopelliti appeared on behalf of
GreenPark at several hearings before the Code Enforcement Board (“CEB”)
regarding the violations.
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The violations were never remedied. The City sent formal notice of the
violations to GreenPark on November 17, 2011, and a reinspection conducted on
January 26, 2012 revealed that the same units remained noncompliant with the
Code. On April 12, 2012, following another re-inspection, the City hand delivered
a “final notice” warning that “[i]f the violations are not corrected by April 22, 2012
this case will result in further legal action, including forwarding to a special
magistrate, and/or court summons, or abatement by a contractor.” No
representative from GreenPark appeared at the subsequent hearing scheduled
before a CEB Special Magistrate on August 1, 2012. The Special Magistrate
entered eight separate violation orders finding GreenPark in violation of the Code.
GreenPark requested and was granted a rehearing regarding the violation orders on
August 7, 2012. After the rehearing, the Special Magistrate affirmed the violation
orders and found GreenPark in noncompliance with the orders.
On November 20, 2012, the City obtained a warrant to inspect the
GreenPark property for compliance with the CEB Special Magistrate’s violation
orders. Nine of GreenPark’s units were found to be unfit for human habitation, to
pose a serious public health and safety threat, and to constitute a public nuisance.
The City issued condemnation orders for those nine units on November 28, 2012.
The orders gave GreenPark the right to appeal by attending a hearing on December
5, 2012.
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By January 10, GreenPark had neither appealed nor complied with the
condemnation orders, and the City served demolition orders on GreenPark on
January 16, 2013. The demolition orders provided that GreenPark should either
demolish the condemned units on or before February 1, 2013, or appeal the orders
within twenty-one days of service. On January 18, 2013, the City also issued six
Criminal Report Affidavits against Scopelliti based on twenty-four Code violations
in six of GreenPark’s units. These six units were not the same units subject to the
condemnation orders. Criminal proceedings against Scopelliti were stayed
pending the outcome of the instant suit.
GreenPark did not meet the demolition deadline for the nine condemned
units, and the City hired a private company to conduct the demolition. The
company began demolition on February 4, prior to the expiration of GreenPark’s
appeal deadline. That same morning, GreenPark served the CEB with a cease and
desist letter, and the City halted demolition and vacated the property. The roof of
one unit was removed before demolition ceased.
On March 13, 2013, a CEB Special Magistrate held a hearing regarding
GreenPark’s appeal of the demolition orders. The Special Magistrate concluded
that the City had: 1) properly applied the Code; 2) followed all required procedures
and provided GreenPark proper notice; 3) issued demolition orders supported by
facts shown in the inspection reports, files, and photographs in the record; and 4)
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that the expert reports submitted by GreenPark were insufficient to overturn the
demolition orders. The Special Magistrate affirmed the demolition orders as valid
and enforceable. GreenPark subsequently filed a complaint with the district court.
B. Procedural History
GreenPark filed its complaint with the district court on April 22, 2014,
alleging fifteen claims against the City. The parties’ scheduling order set the close
of discovery for April 1, 2015. On March 30, 2015, GreenPark filed a motion to
extend the deadlines for discovery and dispositive motions. Upon review of
GreenPark’s motion, the magistrate judge described GreenPark’s complaint as the
“epitome of a ‘shotgun’ pleading,” and noted the difficulty defense counsel and the
court would have in disposing of GreenPark’s claims on summary judgment. The
magistrate judge issued a report and recommendation that the complaint should be
dismissed with leave to file an amended complaint.
The district court rejected the magistrate’s report and recommendation. The
district court noted that GreenPark had failed to request leave to amend its
complaint for an entire year, seeking leave to amend only after the magistrate
judge’s report. The district court indicated that permitting GreenPark to amend its
complaint would prejudice the City’s ability to file a motion for summary
judgment based on the original complaint. GreenPark subsequently voluntarily
dismissed eight counts from its complaint, and the City filed its motion for
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summary judgment on the remaining counts. The district court granted the City’s
motion for summary judgment based on the fact that the inverse condemnation
claim was not yet ripe and GreenPark failed to present evidence in support of its
remaining claims. GreenPark subsequently perfected this appeal.
II. STANDARD OF REVIEW
“We review a district court’s grant of summary judgment de novo, viewing
the record and drawing all factual inferences in a light most favorable to the
nonmoving party.” Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d
1277, 1284 (11th Cir. 2014) (internal quotation marks omitted). Questions
concerning ripeness are also reviewed de novo. Elend v. Basham, 471 F.3d 1199,
1203 (11th Cir. 2006). We review for an abuse of discretion “[a] district court’s
decision to grant or deny leave to amend” a complaint. Jennings v. BIC Corp., 181
F.3d 1250, 1254 (11th Cir. 1999).
III. DISCUSSION
A. Inverse Condemnation
The district court correctly found that GreenPark’s inverse condemnation
claim was not ripe for adjudication. GreenPark’s claim seeks just compensation
for the City’s invasion of its property and partial demolition of its unit. “In order
for such a claim to be ripe for adjudication, the landowner must overcome two
hurdles: the final decision hurdle and the just compensation hurdle.” Reahard v.
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Lee Cnty., 30 F.3d 1412, 1415 (11th Cir. 1994) (internal quotation marks
omitted). 1
GreenPark failed to meet the just compensation hurdle, which “boils down
to the rule that state courts always have a first shot at adjudicating a takings dispute
because a federal constitutional claim is not ripe until the state has denied the
would-be plaintiff’s compensation.” Agripost, LLC v. Miami-Dade Cnty., Fla.,
525 F.3d 1049, 1052 (11th Cir. 2008) (discussing Williamson Cnty. Reg’l Planning
Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S. Ct. 3108 (1985));
see also Reahard, 30 F.3d at 1417. GreenPark did not avail itself to Florida’s
inverse condemnation cause of action and therefore cannot claim that it has been
denied just compensation. The district court properly found that GreenPark’s
claim is not ripe for adjudication.
B. Fair Housing Act
GreenPark alleged that the City’s enforcement of the Code has a disparate
and adverse impact upon African-Americans in violation of the FHA. To establish
a prima facie case for disparate impact, GreenPark must provide some comparative
evidence to show that enforcement of the Code results in a disparate impact on
African-Americans. See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1218
1
GreenPark argues that because the final decision hurdle is met, the claim is ripe to exercise
supplemental jurisdiction for the purpose of determining just compensation. This argument is
without merit, as it clearly misapprehends the just compensation inquiry.
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(11th Cir. 2008) (upholding summary judgment on a disparate impact claim where
the plaintiff failed to present relevant comparative evidence). GreenPark provided
statements from two witnesses that the “goal of the city was to remove African-
Americans from the neighborhood” and allegations of discriminatory statements
made by City representatives in connection with Code enforcement activities.
GreenPark’s expert reports referenced other mobile home parks in the area in
similar states of disrepair and opined that lack of “similar action against similar
parks” was the result of selective enforcement against GreenPark. 2
GreenPark argues that the evidence of the City’s discriminatory animus and
singling out of GreenPark is sufficient to create a dispute of fact as to disparate
impact on African-Americans. This argument overlooks GreenPark’s burden to
establish a prima facie case, as “there can be ‘no genuine issue as to any material
fact,’ [where] a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). At best,
2
The Bodziak report stated the following:
In the surveying area we quickly found two other trailer parks. . . . Both were
comparable to GreenPark and in my opinion of equal and similar states of dis-
repair. Lack of similar action against similar parks in more visible locations was
not taken, leading me to the opinion that selective enforcement may have been the
basis for singling Greenpark out of actions taken . . . .
The Jamaal Engineering report identified several similar properties, noted that their conditions
were poor or similar to that of Greenpark, and that there were no demolition orders evident for
these similar units.
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GreenPark’s evidence shows disparities in the treatment of mobile home units.
“[S]imply showing that a few houses are affected by an ordinance does not come
close to establishing a disparate impact.” Schwarz, 544 F.3d at 1218. GreenPark
provided no evidence that the City’s enforcement of the Code affected African-
Americans as opposed to any other race, and therefore failed to establish a prima
facie case for disparate impact. See id. We therefore affirm the district court’s
grant of summary judgment on the disparate impact claim.
C. Selective Enforcement
GreenPark’s selective enforcement claim is similarly deficient. To establish
a claim for selective enforcement, “[GreenPark] must show (1) that [it was] treated
differently from other similarly situated individuals, and (2) that [the City]
unequally applied a facially neutral ordinance for the purpose of discriminating
against [GreenPark].” Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1314 (11th
Cir. 2006) (citing Strickland v. Alderman, 74 F.3d 260, 264 (11th Cir. 1996)). In
order for comparator properties to be considered similarly situated, a plaintiff must
make a specific showing that the two properties are “prima facie identical in all
relevant respects.” Campbell, 434 F.3d at 1315. The expert reports submitted by
GreenPark, see supra note 2, fail to provide any relevant or specific details as to
how the comparator properties were similarly situated to GreenPark—i.e., whether
the identical violations were present or whether the City failed to enforce identical
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violations at these properties. GreenPark argues that whether the properties were
similarly situated is a question for a jury, and again conflates its burden at the
pleading stage with the existence of an issue of fact. GreenPark failed to establish
its prima facie case for selective enforcement, and summary judgment was proper
on this claim.
D. Abuse of Process
“A cause of action for abuse of process requires: (1) an illegal, improper, or
perverted use of process by the defendant; (2) an ulterior motive or purpose in
exercising the illegal, improper, or perverted process; and (3) damage to the
plaintiff as a result of the defendant’s action.” Valdes v. GAB Robins N. Am., Inc.,
924 So. 2d 862, 867 n.2 (Fla. Dist. Ct. App. 2006). “The abuse consists not in the
issuance of process, but rather in the perversion of the process after its issuance.”
Peckins v. Kaye, 443 So. 2d 1025, 1026 (Fla. Dist. Ct. App. 1983). “There is no
abuse of process, however, when the process is used to accomplish the result for
which it was created, regardless of an incidental or concurrent motive of spite or
ulterior purpose.” Bothmann v. Harrington, 458 So. 2d 1163, 1169 (Fla. Dist. Ct.
App. 1984).
In the complaint and response to the motion for summary judgment,
GreenPark contended that the City committed an abuse of process by issuing six
Criminal Report Affidavits in order to coerce GreenPark to abandon their
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challenges to the City’s Code enforcement. Because GreenPark challenged the
issuance of the Criminal Report Affidavits and not any improper act after the
prosecution began, the district court correctly found GreenPark’s abuse of process
claim invalid as a matter of law. See Peckins, 443 So. 2d at 1026–27. On appeal,
GreenPark now alleges that the City took improper action after the issuance of the
Criminal Report Affidavits “to leverage the threat of incarceration of Scopelliti . . .
with obtaining GreenPark’s acquiescence to demolition . . . [and] obtaining from
GreenPark a waiver of GreenPark’s rights to process in relation to its civil claims
and defenses.” We conclude that this argument has been waived for two reasons.
First, GreenPark failed to raise this argument to the district court. See, e.g., Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). Second,
GreenPark fails to cite to any portion of the record that would support the City’s
alleged improper acts after the issuance of the Criminal Report Affidavits. See
Nat’l Aliance for Mentally Ill, St. Johns Inc. v. Bd. of Cnty. Comm’rs of St. Johns
Cnty., 376 F.3d 1292, 1296 (11th Cir. 2004) (deeming claims waived for
appellant’s failure to cite to the parts of the record on which it relied in accordance
with Fed. R. App. P. 28(a)(8)(A)). We therefore affirm the district court on this
claim.
E. Motion to Amend Complaint
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A district court has discretion to deny leave to amend, but “leave shall be
freely given when justice so requires.” Fed. R. Civ. P. 15(a). “In making this
determination, a court should consider whether there has been undue delay in
filing, bad faith or dilatory motives, prejudice to the opposing parties, and the
futility of the amendment.” Local 472 of United Ass'n of Journeymen &
Apprentices of Plumbing & Pipefitting Indus. of U.S. & Canada v. Ga. Power Co.,
684 F.2d 721, 724 (11th Cir. 1982) (citing Foman v. Davis, 371 U.S. 178, 182, 83
S. Ct. 227, 230 (1962)). GreenPark’s request to amend was filed after the case had
been pending for a year and at the close of the discovery deadline. GreenPark had
ample opportunities to seek leave to amend its complaint during that year. In
denying GreenPark’s request, the district court cited prejudice to the City, who was
prepared to file a motion for summary judgment based on the original complaint.
Accordingly, we conclude from the record that the district court did not abuse its
discretion in denying GreenPark’s request to amend.
F. Section 1983 Claims
GreenPark argues that the district court committed reversible error by
entering a final judgment without addressing Count IV3 of its complaint,
Scopelliti’s individual claim for violation of his due process rights under §1983.
3
GreenPark’s brief refers to Counts XII and XIII interchangeably as “Scopelliti’s §1983 Civil
Rights Claims.” Those counts correspond to GreenPark’s Abuse of Process and Trespass
claims, respectively. We glean from the complaint, the district court’s order, and the City’s
brief that this is a typo, and GreenPark intended to refer this court to Count IV.
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GreenPark’s complaint alleged two separate §1983 claims, one by GreenPark and
the other by Scopelliti, individually. The district court cited both counts under the
same heading preceding six pages of analysis of GreenPark’s due process claim
(Count III). The district court’s order never explicitly made a finding as to
whether the City was entitled to summary judgment on Scopelliti’s individual due
process claim. Even so, we review the grant of summary judgment de novo and
“may uphold a grant of summary judgment on any basis supported by the record.”
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 960 (11th Cir. 2009) (internal
quotation marks omitted).
First, we note that insofar as Count IV addresses the premature demolition of
GreenPark’s units, these due process claims were thoroughly analyzed and
properly dismissed in the district court’s order. Accordingly, we need only address
GreenPark’s allegations that Scopelliti was denied procedural due process in
regard to the City’s issuance of the Criminal Report Affidavits. GreenPark argues
that Scopelliti was not provided adequate notice of the alleged violations or an
opportunity to remedy the violations prior to the City initiating criminal
proceedings against him. Those criminal proceedings were stayed pending the
outcome of the instant suit.
“A procedural due process claim has three elements: ‘(1) a deprivation of a
constitutionally-protected liberty or property interest; (2) [government] action; and
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(3) constitutionally-inadequate process.’” Alvarez v. U.S. Immigration & Customs
Enforcement, 818 F.3d 1194, 1228 (11th Cir. 2016) (alteration in original) (quoting
Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003)). Even assuming that
GreenPark has met its burden on the first two elements, GreenPark failed to show
that Scopelliti was denied a constitutionally adequate remedy by the state court.
“It is the state’s failure to provide adequate procedures to remedy the otherwise
procedurally flawed deprivation of a protected interest that gives rise to a federal
procedural due process claim.” Cotton v. Jackson, 216 F.3d 1328, 1331 (11th Cir.
2000). Here, GreenPark provided no evidence that Scopelliti challenged in the
state court the issuance of the Criminal Report Affidavits. Further, remedy from
the state court is still available where the criminal proceedings remain pending.
Regardless, where GreenPark has neither alleged that there are no adequate
remedies available to Scopelliti or pled facts that indicate Scopelliti attempted to
take advantage of any state remedies and was denied, there is no viable due process
claim under §1983. See, e.g., Horton v. Bd. of Cnty. Comm’rs of Flagler Cnty.,
202 F.3d 1297, 1301 (11th Cir. 2000).
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s order granting
summary judgment in favor of the City.
AFFIRMED.
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